The following Pensions practice note Produced in partnership with Chris Ransom of CMS and Kate Richards of CMS provides comprehensive and up to date legal information covering:
THIS PRACTICE NOTE APPLIES TO OCCUPATIONAL PENSION SCHEMES
Any attempt to widen (or restrict) a scheme's amendment power can be fraught with legal issues and could be subsequently challenged as an invalid exercise of the scheme's power of amendment. It may also undermine the purpose of the power of amendment altogether.
At its most basic level, the power of amendment can only be amended (either to remove or introduce restrictions) where the power of amendment allows for this. The power of amendment can only be used for the purpose for which it was conferred.
If the power to amend the trust deed or rules sits in the trust deed for example, then an amendment power giving the ability ‘to alter or add to 'any' of the provisions of the trust deed’ (emphasis provided) should be sufficient to enable the power of amendment in the trust deed to be amended, subject to any restrictions contained in the power itself (see below).
Even where the power of amendment allows for the power of amendment to be amended, it may still not be legally possible to remove a restriction which was introduced to protect the members' interests. The IMG case has reinforced this general position.
In IMG itself, clause 7(i) of the scheme's 1977 Deed contained
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