How will the Pensions Regulator exercise its criminal and moral hazard powers under the Pension Schemes Act 2021?

The following Restructuring & Insolvency practice note provides comprehensive and up to date legal information covering:

  • How will the Pensions Regulator exercise its criminal and moral hazard powers under the Pension Schemes Act 2021?
  • Criminal and civil powers under the Pension Schemes Act 2021
  • Guidance on exercise of new powers
  • Criminal offences policy
  • CN guidance under the revised Code 12

How will the Pensions Regulator exercise its criminal and moral hazard powers under the Pension Schemes Act 2021?

Criminal and civil powers under the Pension Schemes Act 2021

The power of the Regulator to issue contribution notices (CNs) and financial support directions (FSDs) is located in sections 38–50 of the Pension Schemes Act 2004 (PeA 2004). These provisions are commonly referred to as the 'moral hazard' powers of the Regulator. The two main moral hazard powers are the power to issue a CN and the power to issue a FSD (see Practice Note : The Pensions Regulator and its power to issue a contribution notice and financial support direction).

In October 2019, the government introduced a Pension Schemes Bill with the aim of strengthening the powers of the Regulator. The bill was reintroduced in January 2020 following the December 2019 general election and the Pension Schemes Act 2021 (PSA 2021) received Royal Assent on 11 February 2021. The PSA 2021 amends the PeA 2004 and the majority of provisions came into force on 1 October 2021.

The PSA 2021 has significant implications for restructurings where the company operates a defined benefit pension scheme. Liability can extend to directors, lenders and advisers.

From 1 October 2021 the PSA 2021 amended the PeA 2004 to introduce two new criminal offences based on ‘risking accrued scheme benefits’ and ‘avoidance of employer

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