Posts by John

John Wilson

John Wilson

John is Head of Technical, Research and Policy with over 33 years’ experience in employee benefits knowledge management
John Wilson

Brexit – what happens next?

If you stayed up late on 31 January you would have witnessed the UK finally leaving the EU. A moment of history, indeed, but right now it may feel that not much has changed.

The Withdrawal Agreement (WA) came into force immediately, but several features of UK membership of the EU will be maintained during the so-called ‘transition period’ provided for by the WA (technically, this is not a transition period but rather a period of negotiation over a trade deal).

The legal basis for negotiations between the UK and EU will now be based on the same procedures applied for negotiations with other ‘third countries’ (under Article 218 of the Treaty on the Functioning of the EU).

The ‘transition’ period has been devised as ‘breathing space’ for the UK and the EU to try and negotiate a new relationship. It will last only until the end of this year (31 December 2020); theoretically, it could be extended but the UK Government has legislated to stop itself from seeking an extension.

For the remainder of 2020:

  • most EU rules will continue to apply to the UK;
  • the UK will still be part of the EU single market and customs union;
  • existing trade arrangements and rules for travelling within the EU will continue to apply;
  • the jurisdiction of the Court of Justice of the EU will continue as before; and
  • the UK will continue to pay into the EU budget.

The UK, however, can no longer take part in EU decision-making and is no longer represented in the EU institutions. UK representatives can participate in meetings of EU bodies where discussions are relevant to the UK, but they will not have a vote.

There are other arrangements that cease to apply straight away too; for example, UK citizens resident in EU Member States will lose the right to vote and stand in local and European elections.

Also, the EU will be able to exclude the UK from EU activities where participation would grant the UK access to certain security-related sensitive information. However, the EU Common Foreign and Security Policy will continue to apply to the UK.

The EU’s international agreements still apply to the UK during the transition period, but the UK is now permitted to negotiate and ratify new international agreements with non-EU countries provided that these do not come into force before the end of the transition period.

Beyond transition


As things stand, the above arrangements will end on 31 December 2020, but with some areas of the UK-EU relationship still covered by the WA, including rights of EU citizens living in the UK and UK citizens living in the EU at the end of the transition period; together with aspects of Northern Ireland’s relationship with the EU.

The nature of arrangements for other aspects of UK-EU relationship will depend on what is agreed in the next 322 days (sounds like a lot of time, but remember how long it took to get to this point!).

From a financial services perspective, subject to the planned UK / EU free trade agreement being successfully negotiated (and covering financial services in line with political declaration), the prospective arrangements will entail:

  • the free trade agreement;
  • the regulatory regime (largely) of the ‘host’ state;
  • benefits of any EU/UK ‘equivalence’ decisions; and
  • measures, if any, to smooth the impact of exit from the single market.
KEY POINTS FOR SPONSORS AND TRUSTEES
Most EU pensions law has already been incorporated into UK legislation and any changes will require further UK legislation, and the appropriate Parliamentary processes that precede it.
In the meantime, any concerns over investment strategy, sponsoring employer covenant and the resultant impact for scheme funding should be monitored as part of a scheme’s ‘integrated risk management’ (IRM).

Want to know more?


This blog is based on a Commons Library Insight article. For more comprehensive information, click on the links below.

John Wilson

B-Day has (almost) arrived

It has been nearly three years since the then Prime Minister gave the European Council formal notice of the UK’s intention to leave the EU.

We are all familiar with key events that have unfolded since then, not least the acrimony, polarisation of society and ugly scenes in the UK Parliament all of which were comprehensively covered by television, radio, newspapers and social media.

However, all said and done, it now looks as though Brexit will actually happen and that the UK will subsequently cease to be a EU member state.

Assuming that a ‘no-deal’ Brexit is avoided, a post-Brexit transition period will run from exit day until 31 December 2020, and could be further extended. During that period, most EU law will continue to apply to the UK and so it will look as feel, in many regards, as though the UK is still part of the EU.

The Withdrawal Agreement Bill has now been approved by Parliament and the Queen and has been signed by the EU Commission and Council; the European Parliament is expected to vote for it on Wednesday 29 January. It will amend the European Union (Withdrawal) Act 2018 (EUWA) to save the effect of most of the European Communities Act 1972 for the duration of the transition period, and will create the new body of retained EU law at the end of the transition period.

At the end of the transition period, the withdrawal agreement will address the future UK-EU relationship.

If the event of the UK and EU failing to conclude a withdrawal agreement, the UK will still leave the EU. However it will do so without an agreement or a transition period. EU law will stop applying to the UK on exit day.

In either scenario, what are the short-term implications for pensions?

The answer, at least from a legal perspective, is ‘not much’.

Most EU pensions law has already been incorporated into UK legislation and any changes will require further UK legislation, and the appropriate Parliamentary processes that precede it.

We may, over time, see divergence between UK and EU pensions law but, except perhaps for those few employers operating cross-border pension schemes, legally it will be business as usual.

There is less certainty from the perspectives of pension scheme investments and employer covenants.

Financial and economic volatility, the degree of which could be dependent on how the UK leaves the EU (see above), could be a major issue, but will be very scheme specific. Investment strategy, sponsoring employer covenant and the resultant impact for scheme funding should be considered as part of a scheme’s ‘integrated risk management’ (IRM).

Finally, some thought may also need to be given to operational issues where, for example, schemes pay pensions to EU ex-pats after the UK ceases to be a member state. The expectation, however, is that these pensioners will continue to receive their retirement incomes without interruption.

In the meantime, The Pensions Regulator has set out the areas it expects trustees to focus on in order to prepare their schemes for Brexit and all trustees should be familiar with this guidance:

John Wilson

Pension Schemes Bill

Here is your ‘bill’, sir

A few days after its publication, but before its second reading in the House of Lords on 28 January, the impact assessments for the Pension Schemes Bill 2019-2020 have been published.

Whilst quite lengthy, the assessments are worth a read because, in addition to providing assumptions and estimates around the costs to business and others of the Bill’s main measures, they provide some additional information and useful context not available elsewhere in the documents issued alongside the Bill.

Some of the headlines have already been reported in the pensions press, but here is a reminder and, hopefully, a bit more detail:

  • The cost to pension scheme members is largely expected to be nil, as there is little or nothing for them to do.
  • The main costs to businesses (employers and the pensions industry) relate to the ‘familiarisation stage’ of The Pension Regulator’s (TPR’s) new information gathering powers (£8.9 million) and changes to the Contribution Notice regime (£1.7 million).
  • In addition, declarations of intent have an estimated familiarisation cost to businesses of around £0.71 million, with an ongoing cost of around £1 million.
  • The requirement for a trustee and board statement (DB ‘Chair’s Statement’) also has an assumed cost of £1 million in terms of familiarisation. For ongoing costs, for the schemes that don’t already have a Chair, there will be an ongoing additional cost because of the higher pay associated with being a Chair rather than a trustee. The Impact Assessment estimates a scope of around 850 schemes that did not already have a Chair of the trustee board, this represents just over 15% of DB schemes. It is estimated that the ongoing costs incurred to businesses to be £19.5 million per year. The cost incurred to each scheme is, of course, assumed to vary depending on the size of scheme.

There is also a useful comparison of the current DC Chair Statement requirements and the proposed DB Chair Statement (reproduced below).

  • For the new long-term funding and investment strategy, it is anticipated that there will be minor familiarisation and implementation gross cost to business, partially offset by savings associated with improved clarity of the requirements (illustrative cost estimate for familiarisation when regulations are published is £1.5 million).
  • The proposed Pensions Dashboard is, not surprisingly given the infrastructure needed, the most expensive measure. There will be costs for the pensions industry to familiarise with new requirements and these costs are £2m in year 1 only. It is expected that there will be material costs for pension schemes and providers to invest in new software/IT architecture to be able to provide data to the dashboard(s). To provide data, ongoing governance, and regulatory compliance on an annual basis, one-off implementation costs and ongoing costs are estimated under three scenarios with different data requirements and coverage to highlight the potential range of impacts. Estimated one-off implementation costs range from £200m to £580m over 10 years and ongoing costs range from £245m to £1.48bn over 10 years.
  • Most of the new measures, where assessed, are expected to be broadly neutral in terms of impact on TPR and it is anticipated that there will be limited impact to the Pension Protection Fund (PPF). Some measures, such as the introduction of the Declaration of Intent is intended to help protect DB pension scheme members’ benefits and, in turn, will (according to the assessments) reduce the likelihood that a scheme will enter the PPF, also reducing costs to the PPF (and potentially benefitting businesses indirectly through a reduction in the pension protection levy).
  • The impact assessment does though note that there may be costs incurred to HM Prison service because of the new criminal sanction and custodial sentence for ‘Wilful or reckless behaviour in relation to a pension scheme’. It is estimated that the cost incurred to HM Prison Service is £26,274 in the first year and then £52,548 per annum thereafter.
Source:The impact assessments for the Pension Schemes Bill
John Wilson

Pension Schemes Bill

Here is your ‘bill’, sir

A few days after its publication, but before its second reading in the House of Lords on 28 January, the impact assessments for the Pension Schemes Bill 2019-2020 have been published.

Whilst quite lengthy, the assessments are worth a read because, in addition to providing assumptions and estimates around the costs to business and others of the Bill’s main measures, they provide some additional information and useful context not available elsewhere in the documents issued alongside the Bill.

Some of the headlines have already been reported in the pensions press, but here is a reminder and, hopefully, a bit more detail:

  • The cost to pension scheme members is largely expected to be nil, as there is little or nothing for them to do.
  • The main costs to businesses (employers and the pensions industry) relate to the ‘familiarisation stage’ of The Pension Regulator’s (TPR’s) new information gathering powers (£8.9 million) and changes to the Contribution Notice regime (£1.7 million).
  • In addition, declarations of intent have an estimated familiarisation cost to businesses of around £0.71 million, with an ongoing cost of around £1 million.
  • The requirement for a trustee and board statement (DB ‘Chair’s Statement’) also has an assumed cost of £1 million in terms of familiarisation. For ongoing costs, for the schemes that don’t already have a Chair, there will be an ongoing additional cost because of the higher pay associated with being a Chair rather than a trustee. The Impact Assessment estimates a scope of around 850 schemes that did not already have a Chair of the trustee board, this represents just over 15% of DB schemes. It is estimated that the ongoing costs incurred to businesses to be £19.5 million per year. The cost incurred to each scheme is, of course, assumed to vary depending on the size of scheme.

There is also a useful comparison of the current DC Chair Statement requirements and the proposed DB Chair Statement (reproduced below).

  • For the new long-term funding and investment strategy, it is anticipated that there will be minor familiarisation and implementation gross cost to business, partially offset by savings associated with improved clarity of the requirements (illustrative cost estimate for familiarisation when regulations are published is £1.5 million).
  • The proposed Pensions Dashboard is, not surprisingly given the infrastructure needed, the most expensive measure. There will be costs for the pensions industry to familiarise with new requirements and these costs are £2m in year 1 only. It is expected that there will be material costs for pension schemes and providers to invest in new software/IT architecture to be able to provide data to the dashboard(s). To provide data, ongoing governance, and regulatory compliance on an annual basis, one-off implementation costs and ongoing costs are estimated under three scenarios with different data requirements and coverage to highlight the potential range of impacts. Estimated one-off implementation costs range from £200m to £580m over 10 years and ongoing costs range from £245m to £1.48bn over 10 years.
  • Most of the new measures, where assessed, are expected to be broadly neutral in terms of impact on TPR and it is anticipated that there will be limited impact to the Pension Protection Fund (PPF). Some measures, such as the introduction of the Declaration of Intent is intended to help protect DB pension scheme members’ benefits and, in turn, will (according to the assessments) reduce the likelihood that a scheme will enter the PPF, also reducing costs to the PPF (and potentially benefitting businesses indirectly through a reduction in the pension protection levy).
  • The impact assessment does though note that there may be costs incurred to HM Prison service because of the new criminal sanction and custodial sentence for ‘Wilful or reckless behaviour in relation to a pension scheme’. It is estimated that the cost incurred to HM Prison Service is £26,274 in the first year and then £52,548 per annum thereafter.
Comparing the Statements for DC schemes with DB schemes.
Source: The impact assessments for the Pension Schemes Bill
John Wilson
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Keeping you informed

Latest TPR research

The Pensions Regulator (TPR) has published the latest edition of the ‘Defined Benefit Landscape’[1], its annual report on all DB occupational pension schemes registered with TPR (including those also providing DC benefits, as well as schemes not eligible for the Pension Protection Fund – PPF). This research is separate from the Purple Book, now published by the PPF and covering only PPF-eligible schemes, which is due out on 17 January 2020. A summary of key findings from the DB Landscape, based on information from the pension schemes register on 31 March 2019, is provided below.

Headlines

  • 13% of DB/hybrid schemes remained open to new members
  • 52% of memberships were in schemes which are closed to new members
  • The private sector had 10% active memberships compared with 37% of those in public service schemes

Schemes by status

In 2019:

  • 43% of schemes were closed to new members
  • 40% were closed to future accrual
  • 13% were open
  • 3% were in wind-up

The comparable percentages for 2010, the earliest year covered by the DB Landscape research, were: 48%; 22%; 17%; and 13%, respectively.

The figures vary quite materially depending on scheme size. For 2019, in schemes with 10,000 or more members:

  • 56% were closed to new members
  • 25% were closed to future accrual
  • 19% were open
  • 1% were in wind-up

The comparable percentages for schemes with 100 to 999 members were: 43%; 49%; 7%; and 2%, respectively.

Membership by status

In 2019:

  • 52% of memberships were in schemes closed to new members
  • 29% were in schemes closed to future accrual
  • 19% were in open schemes
  • 1% were in schemes in wind-up

The respective percentages for 2010 were 57%, 6%, 35% and 2%.

Across all schemes, there were 1,058,864 active members, 5,136,528 deferreds and 4,529,185 pensioners.

Principal employer type

Schemes sponsored by a college or education institution had more open schemes (31%) than schemes with any other type of principal employer (including government/public body where the equivalent percentage was 25%). The corresponding figures for private and public limited companies were 9% and 6%, respectively. Registered charity was also 6%. In terms of the proportion of memberships by status and principal employer:

  • For schemes sponsored by a college or education institution, 71% of memberships were in open schemes.
  • For schemes sponsored by government/public body, private limited company, public limited company or registered charity, the respective percentages were 10%, 17%, 11% and 27%.

Scheme funding

The following funding figures represent the schemes’ Part 3 funding valuations on a common date of end March 2019. For all schemes covered by the DB Landscape research, total assets were £1,700.95 billion and total liabilities were £1,860.20 billion. The split between type of scheme was:

  • For open schemes, £289.62bn assets / 317.2bn liabilities.
  • For schemes closed to new members, £987.18bn / £1,075.10bn.
  • For schemes closed to future accrual, £424.15bn / £467.82bn.

Most schemes, regardless of status, had a funding level of between 75% and 100%.

Indexation information

Schemes can adopt a variety of approaches to increases to pensions in payment. According to the DB Landscape research,

  • For pre-April 1997, 528 schemes used CPI as their measure of price inflation and 2,042 used RPI.
  • The respective figures for post-April 1997 (when indexation became a statutory requirement for benefits in excess of Guaranteed Minimum Pensions) were 1,309 and 4,083.

Public service pension schemes

There are 21 public service pension schemes. Until 2015, pension provision in the public sector was provided on a defined benefit basis. Since then, however, workers in all open public service schemes have accrued benefits on a Career Average (CARE) basis. In terms of the balance of membership types in public service schemes, there were:

  • 36.7% active memberships
  • 33.7% deferrreds
  • 29.6% pensioners

Comment

The DB Landscape research confirms the continuing trend amongst DB schemes towards full closure (closure to future accrual), but it also illustrates important differences amongst schemes depending on their size and industry sector of their sponsoring employer.

The indexation information is also noteworthy in the sense that, if the Government moves ahead with the proposal to change RPI, by aligning RPI with CPI, a significant proportion of schemes will be affected.


John Wilson

On 19 December 2019, the Queen’s Speech was delivered to both Houses of Parliament. It sets out the Government’s legislative priorities for the 2019-20 parliamentary session.

Background briefing notes include details of the reintroduced Pension Schemes Bill, which was first announced in the last Queen’s Speech in October 2019 but fell with the dissolution of Parliament earlier this month.

The following measures are included in the Bill (all substantive proposals were in the original version too):

  • New powers for the Regulator. These include ‘lengthy jail terms on the table for reckless bosses who plunder people’s pensions pots’.
  • Scheme funding. Measures regarding Defined Benefit (DB) scheme funding, including additional Regulator powers.
  • Collective defined contribution schemes. A new pension scheme design to give greater choice for employers and enable people to adequately save for retirement and better predict their income in later life.
  • Pensions dashboards. Establishing the framework for the creation of pension scheme dashboards that will “allow people to access their information from most pensions schemes in one place online for the first time”. The Pensions Regulator will have the power to ensure schemes provide information to populate the dashboards.
  • Scheme transfers. Revisions to the rules to help combat pension scams.
  • Pension Protection Fund (PPF) compensation. Changes to compensation rules to ensure the regime works as originally intended and to respond to the decision in Beaton v The Board of the Pension Protection Fund [2017]. It will be interesting to see if there is further tweaking in light of this week’s decision of the Court of Justice of the European Union in the Bauer case.

A draft of the Bill has yet to be published but, for further information, see –

https://www.gov.uk/government/publications/queens-speech-december-2019-background-briefing-notes.

Employers and trustees may want to start discussion with advisers on the prospective changes to the scheme funding regime. Employers should be aware of the Regulator’s new ‘moral hazard’ powers which, even now, could impact on the nature and timing of corporate activity.

John Wilson

The PPF published its final levy rules and guidance for the 2020-21 levy year on 16 December 2019.

You can find them here: https://ppf.co.uk/levy-payers/levy-2020-21.

The key elements to note are:

  • The PPF confirmed the total levy it expects to collect at £620 million.
  • The 2020/21 rules are little changed from 2019/20, and are broadly in line with the proposals set out in September’s consultation.
  • The PPF also published revised guidance on contingent assets, which remains largely as consulted on but reflects comments received.
  • The PPF has set out the basis on which a small number of significantly affected levy payers, most likely to be SMEs, can ask for an adjustment of their insolvency risk score, where a GMP equalisation adjustment is the sole reason they are reporting a loss rather than a profit in their accounts.

While we feel it is important to draw the rules and guidance to your attention, our full Client Alert will not be published until later this week because there is a prospective development that may mean the final levy rules are not so ‘final’.

The Bauer case

Mr Bauer had been granted several occupational old-age pension benefits by his former employer, including a pension paid through a supplementary occupational pension institution (PKDW) and a monthly pension supplement paid by his former employer.

In 2003, PKDW, experienced financial difficulties and was authorised by the relevant German national authorities to reduce the amount of the pensions paid.

Under German law, Mr Bauer’s former employer was then obliged to ‘offset’ this reduction in his benefits. However, in 2012, the employer entered insolvency proceedings.

PSV (an insolvency insurance institution for occupational pensions) informed Mr Bauer that it would assume responsibility for the payment of the monthly pension supplement and a Christmas bonus that was also due. However, PSV would not assume responsibility for the offset mentioned above.

Mr Bauer disputed this refusal and several questions were then referred to the CJEU by the German national court. In essence, the German Court asked whether the German Government via the PSV had to compensate Mr Bauer for the top-up payment that his ex-employer paid to cover the pension benefit reduction.

The answer directly impacts the level of protection that must be provided to individuals in respect of their pension rights on the insolvency of their employer / former employer under Article 8 of the Insolvency Directive (2008/94/EC).

And the Court of Justice of the European Union is expected to deliver its judgment on 19 December.

Watch this space …

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