Amending the amendment power in a pension scheme and making retrospective amendments
Produced in partnership with Chris Ransom of CMS and Kate Richards of CMS
Amending the amendment power in a pension scheme and making retrospective amendments

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:

  • Amending the amendment power in a pension scheme and making retrospective amendments
  • Amending the amendment power
  • Ability to amend the power of amendment
  • Amending the power of amendment to remove restrictions
  • Amending the power of amendment in a way in which the members' interests are still protected
  • Introducing new restrictions
  • Making retrospective amendments
  • Harland and Wolff
  • Safeway v Newton
  • Municipal Mutual v Harrop
  • More...

THIS PRACTICE NOTE APPLIES TO OCCUPATIONAL PENSION SCHEMES

Amending the amendment power

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.

Ability to amend the power of amendment

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).

Amending the power of amendment to remove restrictions

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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