Hogan Lovells

Key Dates

Judgement in Pensions Regulator v Strathmore Medical Practice issued on 29 March 2018.


Summary

The Upper Tribunal has upheld a fixed penalty notice which had been issued by the Pensions Regulator to an employer for failure to provide a declaration of compliance with the auto-enrolment requirements within five months of its staging date.  The fixed penalty notice had been set aside by the First-tier Tribunal and the Regulator had appealed to the Upper Tribunal.

Facts

Strathmore Medical Practice had auto-enrolled its employees within the required time period under auto-enrolment legislation but had failed to file a declaration of compliance with the Regulator by the due date of 28 February 2017.  The Regulator sent the Practice a compliance notice on 8 March 2017, requiring the declaration to be completed by 18 April 2017 and stating that, if this was not done, "we may issue you with a £400 penalty".  The Regulator issued a penalty for this amount on 20 April 2017 and the Practice completed the necessary declaration on the following day.  The Practice exercised its right to seek review of the penalty notice. 

The Regulator confirmed the penalty.  In response to a statement from the Practice manager that she was new in the post and still learning the auto-enrolment process, the Regulator stated that reliance on a single employee was not sufficient to mitigate the compliance failure.

The Practice appealed to the First-tier Tribunal, which quashed the decision to issue a fixed penalty notice and remitted the matter to the Regulator for further review.  The Regulator appealed to the Upper Tribunal.

Upper Tribunal

The Upper Tribunal set aside the decision of the First-tier Tribunal and upheld the fixed penalty notice.  In reaching this decision, Levenson J found the following.

·         The Regulator had been aware that it had discretion to revoke the penalty notice and had not closed its eyes to that possibility (contrary to observations of the First-tier Tribunal).

·         The legislation is permissive, enabling the Regulator to issue a compliance notice and fixed penalty notice.  Although the legislation says nothing about "reasonable excuse", it does not prevent the Regulator having regard to it.  There might be a case where it would not be appropriate to have regard to reasonable excuse but it is proper to take it into account.

·         The Regulator had argued that there was an important public interest in enforcing compliance with auto-enrolment duties and that the deterrent effect would be greatly diminished if the practice were to revoke penalty notices in all cases where compliance was achieved at some point.  The Regulator was entitled to take that approach as part of its general policy, but it must consider each individual case on its own merits.



Date Accessed: 28/05/2022