Elizabeth Ovey

Self-invested Personal Pension—Land registry obligations when transferring a property from one Self-Invested Personal Pension to another where the registered proprietor is the same trustee company.

This Q&A considers the scenario where the residue of an estate is left to a branch of a charity that no longer exists at the date of death. It considers, in particular, whether the executors may rely on a clause in the Will allowing them to give the residue to a similar charity at their discretion or whether it will be necessary for the executors to approach the Charity Commission.

This Q&A considers whether there are any requirements for how a redemption figure/statement should be presented where a customer requests a redemption statement either by telephone or via an online portal for a CCA loan secured over land and particularly, whether there is a requirement to calculate the redemption figure for 28 days in the future unless the customer requests a later date.

This Q&A considers options available to a SSAS when one of its trustees loses capacity or is not otherwise willing to act as a trustee.

Age discrimination: the pension exceptions and when they apply—checklistConsiderations for trustees and managers•Trustees and managers of occupational pension schemes should:◦check whether the scheme has been amended to comply with the statutory framework prohibiting age discrimination, taking account of the exceptions in the Age Exceptions Order, SI 2010/2133◦if the scheme has not been amended to comply with age discrimination legislation, consider whether any amendments are required, taking account of the exceptions◦when a length of service criterion disadvantages a member who has more than 5 years’ service, put in place procedures to ask for confirmation from the employer stating that criterion reasonably appears to fulfil a business need◦be aware that for some of the exceptions in the Age Exceptions Order, SI 2010/2133, a rule, practice, action or decision:‣must be adopted, taken or made for a specified aim, or‣is only permitted to a specified extent◦ensure that there is material to show that any such rule, practice, action or decision is directed to achieving the required aim or is limited to the permitted extent◦give proper consideration to whether any changes proposed to the rules, practices, actions or decisions by which the scheme is governed or operated would constitute age discriminationConsiderations for employers•Employers in relation to occupational and personal pension schemes should:◦take account of age discrimination considerations and the scope of the exceptions when seeking any changes to the scheme rules, practices, actions or decisions◦where a length of service criterion disadvantages a member:‣ensure that the criterion applies in such a way that it fulfils a business need and that there is material to show that this is the case‣be aware that reconsideration may be required as circumstances change‣put in place procedures to ensure compliance with its obligation to provide information and confirmation to the trustees or managers•Employers in relation to personal pension schemes should:◦be aware that for some of the exceptions in the Age Exceptions Order, SI 2010/2133, a rule, practice, action or decision:‣must be adopted, taken or made for a specified aim, or‣is only permitted to a specified extent◦ensure that there is material to show that any such rule, practice, action or decision is directed to achieving the required aim or is limited to the permitted extent

Objective justification for pension lawyers—checklist•For trustees and managers of occupational pension schemes:◦Ensure that the provisions, criteria and practices (PCPs) of the scheme have been reviewed to ensure compliance with the non-discrimination rule.◦If a PCP is prima facie discriminatory and does not appear to fall within an exemption, raise the question of whether there is an objective justification with the employer.◦Be aware of the general approach taken by courts and tribunals to the objective justification defence. Do not accept as sufficient response generalisations or stereotypical thinking.◦If necessary, consider whether the power of amendment given by the Equality Act 2010, s 62, should be exercised. Ultimately the court’s directions can be sought.◦Be alert to the possibility that changes in PCPs may affect the impact of other PCPs and require a further non-discrimination review.•For employers:◦Be aware that not only must the pension scheme operate in a non-discriminatory way but also its provisions may be relevant in assessing overall whether a PCP applied in the employment context is objectively justified.◦Where any changes to scheme PCPs are proposed, consider:‣whether the new PCP is prima facie discriminatory‣(if it does not fall within an exemption) whether it serves a legitimate aim as explained in the Statutory Code of Practice on Employment and in the case law, and‣if so, whether it is a proportionate means of achieving that aim, again as explained in the Statutory Code and the case law.◦Where a question is raised whether an existing PCP is discriminatory, follow the process of consideration in the previous bullet point. Remember it is possible to rely on an aim which is currently served although that is not the aim with which the PCP was introduced.◦If it is decided to rely on objective justification, make sure that there is an adequate record of the consideration given to the issue and the supporting material relied on.◦Make sure that decisions are based on evidence about the needs of the business and the impact of the PCP under consideration.◦Specifically in the context of age discrimination, be aware of the risk of relying on generalisations about the performance of older workers. Any argument that older workers are in general less able to do the particular job should be supported by evidence relating to the particular business concerned.