ABI RESPONSE TO HMRC / HMT CONSULTATION ON PENSIONS TAX RELIEF INDIVIDUAL PROTECTION FROM THE LIFETIME ALLOWANCE CHARGE

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1 ABI RESPONSE TO HMRC / HMT CONSULTATION ON PENSIONS TAX RELIEF INDIVIDUAL PROTECTION FROM THE LIFETIME ALLOWANCE CHARGE The UK Insurance Industry The UK insurance industry is the third largest in the world and the largest in Europe. It is a vital part of the UK economy, managing investments amounting to 26% of the UK s total net worth and contributing 10.4 billion in taxes to the Government. Employing over 290,000 people in the UK alone, the insurance industry is also one of this country s major exporters, with 28% of its net premium income coming from overseas business. Insurance helps individuals and businesses protect themselves against the everyday risks they face, enabling people to own homes, travel overseas, provide for a financially secure future and run businesses. Insurance underpins a healthy and prosperous society, enabling businesses and individuals to thrive, safe in the knowledge that problems can be handled and risks carefully managed. Every day, our members pay out 147 million in benefits to pensioners and long-term savers as well as 60 million in general insurance claims. The ABI The Association of British Insurers (ABI) is the voice of insurance, representing the general insurance, protection, investment and long-term savings industry. It was formed in 1985 to represent the whole of the industry and today has over 300 members, accounting for some 90% of premiums in the UK. The ABI s role is to: Be the voice of the UK insurance industry, leading debate and speaking up for insurers. Represent the UK insurance industry to government, regulators and policy makers in the UK, EU and internationally, driving effective public policy and regulation. Advocate high standards of customer service within the industry and provide useful information to the public about insurance. Promote the benefits of insurance to the government, regulators, policy makers and the public. Page 1

2 INTRODUCTION The ABI welcomes the opportunity to respond to this consultation. There is a difficult balance to be struck between producing a fair result and adding unwelcome complexity and we would welcome the opportunity to discuss how this balance might best be achieved. We would also be happy to discuss any of our responses below and to provide any further clarification that you might require. GENERAL COMMENTS We understand the government s intention to allow continued growth of pension savings for those members who may be at or near the LTA. However, it is essential that the detailed requirements are kept as simple as possible and that undue complexity is avoided. It is also essential that the final details of the regime are confirmed urgently to enable individuals to make informed decisions within the Fixed Protection 2014 application window. A specific concern which has been raised is around the proposal to use the personal Lifetime Allowance (LTA) in place of the standard LTA for all purposes for those with individual protection. Using this to calculate the % of LTA used-up by Benefit Calculation Events (BCEs), and calculate Tax Free Lump Sums (TFLS) (including scheme-specific TFLS), would require significant system development to capture all the hundreds of personal LTAs and use them in calculation routines. It repeats the error of fixed protection, which we d like considered at this point so that all BCEs are disclosed as a proportion of the standard LTA. Adopting an approach for individual protection akin to that for primary protection would address this. We are also particularly concerned about the proposed scheme pays adjustment to the personal LTA (question 7/8) and the potential implications of individuals not being in a position to apply for IP14 until summer 2014 (question 11). RESPONSES TO QUESTIONS Question 1: Are there particular difficulties for scheme administrators in allowing individuals to hold both fixed protection (FP12 or FP14) and IP14? Response: We do not believe there will be any particular difficulties with allowing members to hold both protections. However, the issues do not necessarily arise from allowing individuals to hold both as in day to day matters there is no impact. If they have both protections and choose not to contribute/accrue further then IP14 is effectively redundant. If Page 2

3 they continue to contribute or accrue then FP is lost, never to be regained and they are effectively holding only IP14. The individual can t really actively benefit from both protections at the same time they either contribute and lose FP or don t contribute and thereby don t benefit from IP14, though they would have the freedom to change their minds and re-start contributions at a later date, at which point FP would be lost. So the administrative issues are more around the monitoring of FP and whether or not it is lost. This obligation is on the individual, but the administrative burden is on the scheme(s). Again, this is an FP issue and there is no obvious worsening of the issue due to IP14 interaction. One possibility might be for a combined certificate to be issued to the member (as with Enhanced (Dormant Primary) Protection).This will allow providers to note clearly which type of protection applies, although the position of members who had already received a fixed protection certificate would need to be made clear. Question 2: Do you agree that individuals with enhanced protection should be excluded from applying for enhanced protection? If not, please give the reasons why you think there is a case for allowing individuals with enhanced protection to apply for IP14 and set out any difficulties or issues this might create. Response: We have assumed the reference to enhanced protection at the end of the first sentence of the question should be a reference to IP14. We agree that those with both enhanced and primary protection should be excluded from applying as they will fall back on primary protection if enhanced protection is lost. However, we do not agree that individuals with just enhanced protection should be excluded. For those with enhanced protection only, the main disadvantage is that they are prevented from having further accrual or paying further contributions. If this were solely their ongoing choice this could be considered acceptable, but there are circumstances where individuals can lose enhanced protection through no fault of their own, particularly under defined benefit schemes. Further accrual or further contributions may also inadvertently occur, for example where compensation is received into the scheme or if they are automatically enrolled and fail to opt-out within the permitted timescale. Falling back to a 1.25m lifetime allowance seems harsh in these circumstances and allowing these individuals to apply for individual protection would remove the cliff edge whereby their lifetime allowance could drop to 1.25m. Individual protection would provide a valuable safety net in these circumstances and appears fairer to the affected individuals. Again, this could follow the same approach as applied for 2006 protections, with enhanced protection taking precedence over dormant individual protection. For those that had not crystallised any benefits, the administration processes would be the same as for any other member with IP14. For those that had crystallised some benefits, they will have received statements of the amount of the standard lifetime allowance Page 3

4 expended and for future crystallisations, statements on this basis would continue to be given unless enhanced protection is lost. Where it is lost, the individual would fall back on IP14 and statements for future crystallisations would be given as a percentage of the individuals protected lifetime allowance. Having statements provided for different crystallisations on different bases will be confusing but this issue already exists and is a point where we think further consideration of the practical consequences should be given. As a separate point, paragraph 3.7 states that Primary Protection cannot be lost. We don t think this is correct. Although it cannot be given up, it may be lost on divorce, where the pension debit reduces the protection below 1.5m. Please would you clarify whether, if someone has lost Primary Protection before 6 April 14 in these circumstances, they will be able to apply for IP14? If the proposal that individuals with enhanced protection should be excluded from applying for IP14 is to go ahead, we would suggest that the draft legislation is amended slightly. As drafted, the legislation specifies that members are not eligible to obtain IP14 if they held enhanced protection on 6 April Given that members will be unable to determine whether IP14 will be better for them rather than enhanced protection before 6 April 2014 (as they won t be able to receive an accurate valuation of their benefits), it would seem fairer to word the legislation so that they cannot have enhanced protection at the time of making their application for IP14 (essentially an application for IP14 could be deemed as renouncing their enhanced protection), although in practice we appreciate that a separate notification will probably be needed. Question 3: Would monitoring an individual s personalised LTA for the purposes of the tax free lump sum limit, be likely to create difficulties for scheme administrators? Response: This is already quite difficult as members are often not able to provide details of how much PCLS they have previously taken, but we don t foresee any further direct difficulties in this respect. However, we do have concerns around the administrative and cost implications of the proposal to reflect an individual s individual protection by treating the personal lifetime allowance as if it were the standard lifetime allowance for the purposes of Part 4 of FA04. This has knock-on implications for the way BCEs are quantified/ recorded and pension commencement lump sums are calculated, including protected scheme-specific lump sums for those with individual protection. Hindsight has shown that expressing BCEs for those with fixed protection 2012 as a percentage of their personal lifetime allowance, rather than the standard lifetime allowance (as applies in all other cases), was possibly a mistake. It has created extra cost, even although it only requires systems to point to a different table (based around a 1.8M allowance) for those known to have this protection. And it will require reworking of Page 4

5 calculations in the event that protection is lost. This is an area where we believe improved guidance would be beneficial. Adopting the same approach for fixed protection 2014 would repeat this mistake, requiring further system development and creating another tranche of special cases. But, whilst not desirable, it is manageable because everyone in this special class has the same allowance. Extending this approach to individual protection, requiring BCEs to be expressed as a proportion of hundreds of different special lifetime allowances, would require significant system development with the related cost. This cost would, of course, ultimately fall onto all pension clients. It is questionable if this is merited. Our strong preference would be to follow the 2006 primary protection approach for individual protection and express the protected allowance in terms of an enhancement to the standard ( 1.25M) allowance. Crucially, this would mean BCEs could continue to be expressed in terms of a proportion of the standard allowance. Paragraph 3.11 of the consultation document makes no reference to scheme specific lump sums, merely referring to a limit of 25% of the (overall fund). If that is correct, then no scheme specific lump sum could be paid if someone applies for IP14 is this the intention? If so, it would not seem appropriate. It would be helpful if you could clarify the position. Question 4: Are these valuation methods fair and appropriate? Response: We agree that the proposed valuation methods are broadly fair and appropriate given that they follow existing approaches as far as practicable. Prior to A-day, ABI agreed guidelines with HMRC regarding the valuation of insurance contracts and we assume that the principles in those guidelines remain appropriate when valuing funds as at 5 April 2014? A particular point to note is that rather than simply using the surrender value, any penalties/adjustments for early termination, such as Market Value Reductions, are ignored and allowance is made for final or loyalty bonuses, (We have attached a copy of the ABI guidelines as an annex). Where alternative methods were used at A-day, then we would want to see those replicated where possible. With regard to the valuation of post A-day BCEs, we assume it will be acceptable to determine the amount crystallised either using the rounded to two decimal percentage figures provided to individuals in their statements or the actual amounts crystallised at the relevant events (which may produce a marginally higher figure). However, we would have liked to see some allowance for fund growth and, in the case of DB schemes, statutory revaluation. Primary Protection at least allowed the members PLTA to Page 5

6 increase in line with increase to the SLTA and it may be appropriate to build in similar increases in line with the SLTA (to a level between 1.25m and 1.5m). Question 5: Are there any issues or additional burdens associated with these valuation methods? Response: There will be burdens for the pensions industry in having to undertake valuations, but generally we believe the methods outlined do not unnecessarily add additional burdens. However, the calculation and provision of values at 5 April 2014 for previous BCEs would create additional work and the possibility of the need for systems changes or manual solutions should be recognised. Question 6: Should be some form of revaluation of the pension debit for IP14 to take into account the change in the value of the individual s pension rights since 5 April2014 and if so, on what basis this should be done? Response: We agree that an adjustment should be made to reflect the change in circumstances between April 2014 and the pension debit taking effect. It is already becoming apparent, in relation to those with primary protection, that deducting a pension debit based on current values from a frozen 2006 benefit value to adjust the individual s lifetime allowance enhancement factor is becoming increasingly anomalous as time passes. Adopting a similar approach for those registering for individual protection would compound this problem and extend it to significantly more taxpayers. Discounting the debit value back to April 2014 to reflect the change in overall benefit value between then and the date the debit took effect would be broadly fair. It could, however, be administratively onerous particularly where the individual has multiple pension arrangements and/ or where the pensions have changed in nature since 2014, for example, from DB to DC or from uncrystallised to crystallised. Alternatively, one could revisit the valuation at April 2014 and reduce the value of those pension arrangements affected by the pension sharing order by the percentage specified in the order. Again, this could be administratively complex, as the member would have to retain the valuations from April 2014 in case of a divorce (unless HMRC will be keeping a record). A more pragmatic alternative might be to reduce the debit at a fixed rate, for example 5%, for each year since April 2014 (pro-rated for part years). This is less specific to the individual, but is simple whilst still recognising the issue. It is perhaps worth bearing in mind that for the maximum PLTA under IP14 ( 1.5m), a reduction of 16.67% will see the level fall below 1.25m in which case the member would revert back to the standard LTA. So, as the number of members who would be positively Page 6

7 impacted by this suggestion is likely to be low, it is important to ensure that any added complexity is proportionate to any modest benefit. It may also be worth noting that: Further complications would arise if some arrangements were transferred after April Finally, the suggestion is also out of line with Primary Protection where such a process for pension debits would have had an impact on a higher proportion of members (as there was no upper limit to the amount that could be protected). So if revaluation is to be applied for IP14 purposes it should also apply for primary protection but to avoid retrospective calculations it should only apply from a future date. Question 7: Are there any particular reasons why a scheme pays adjustment should not be deducted from an individual s personalised LTA, and in particular are there any specific administrative burdens that this might lead to? Response: We do not favour the deduction of a scheme pays adjustment from an individual s personalised LTA. If the individual contributes sufficiently enough to incur an annual allowance charge, the tax relief from the contribution will be clawed back through that charge manifested at the individual level by the scheme pays adjustment. Under IP14 the individual is already accepting that their contribution may also be subject to the LTA charge at the point of crystallisation leading to what could arguably be considered double taxation at that point on the same contribution. By applying for IP14 this is a condition which the individual accepts, and it is also an issue from which an unprotected individual may suffer. So this general principle is already accepted. But if in addition to this the individual s personalised LTA is also reduced by the same amount, then we have a third source of taxation on the same contribution. This could effectively result in individuals being taxed twice on the same pension savings (at up to 45% via the annual allowance tax charge and again at up to 55% via the lifetime allowance tax charge when benefits come into payment). Currently, taxpayers can use scheme pays to avoid this double taxation jeopardy. If a scheme pays adjustment is required, it needs to be considered where the administration burden would fall. As high earning, or long serving, members of defined benefit schemes are most likely to face an annual allowance tax charge (and, hence, utilise scheme pays), this particularly impacts on them, increasing the administrative burden on such schemes and HMRC. And volumes may not be insignificant. Page 7

8 The impact on money purchase pension administrators will be lower. But these extra lifetime allowance adjustments were not envisaged when systems and processes were established, so there will still be a cost to comply with this. Question 8: What would be the impact if a deduction was also applied to individuals with primary protection whose pension savings are subject to a scheme pays adjustment? Response: We do not believe that the LTA should be reduced by scheme pays in any circumstances. We believe that the approach for primary protection and IP14 should be the same indeed we don t think that taxpayers with primary protection should be treated differently from other taxpayers in this regard. It would also increase the administrative burden on both scheme administrators and HMRC. These extra lifetime allowance adjustments were not envisaged when systems and processes for primary protection were established. And volumes may not be insignificant, particularly under defined benefit schemes. We would also be concerned over whether this would be retrospective and whether we would potentially need to unravel Benefit Crystallisation Events since the introduction of the Scheme Pays rules. Question 9: Are there any other circumstances when an individual s personalised LTA under IP14 should be adjusted? We think so. However, this depends on whether the effect of the draft legislation is that the enhancement factors which already exist in pension credits from previously crystallised rights etc. will apply equally where IP2014 (or FP2014) applies. That aside, as with primary protection, the personal lifetime allowance should be: reduced to reflect pension debits arising from pension sharing on divorce increased to reflect pension credits arising from pension sharing on divorce increased to reflect receipt of a transfer from a recognised overseas pension scheme. reduced in respect of protected pension age of less than 50 There are also events that could occur after 5 April 2014 that may mean that a valuation may need to be adjusted. These include increments or transfer values being cancelled within 30 days, or incorrect valuation of assets due to administrator error and in these situations the individual would need to be able to apply for an amended certificate. Page 8

9 Question 10: Is a three year window for IP14 applications about the right timeframe, and are there any issues associated with this? We consider that a three year timescale is ample indeed it is arguable that a one year window should be sufficient. This is mainly because individuals will want the information on fund values as soon as possible in order to make the decision between FP14 & IP14, with an accurate valuation following shortly after 5 April If this choice is not relevant for the individual then although the same urgency may not apply we consider a three year timescale is more than adequate, especially if there is a possibility of further reductions in the lifetime allowance in the future. If the Lifetime Allowance were to be reduced again during this timeframe, complications could arise and it might make sense to allow a member to apply for FP14 in this timeframe too, allowing a combined application (although we would not want to unwind any benefit accrual that had occurred on or after 6 April 2014). It could also lead to administrative complications, not only for providers but also for HMRC, when members applying for IP14 take benefits during the 3 year window. Question 11: Are there any difficulties and issues that may arise if individuals cannot apply for IP14 until summer 2014? The fundamental issue from the individual s perspective is the choice between IP14 and FP14, and this is where the majority of the frustrations and administrative burdens will lie. For FP14 individuals will need to apply by 5 April 2014 and will need to cease contributing by that point. For IP14 they will not be able to fully assess their position until after 5 April 2014 and will not be able to apply until the Finance Bill 2014 receives Royal Assent (summer 2014). There is no point in the calendar at which the individual will be able to know for certain both their position and their direction without having already had one of the options closed down to them. Accepting the absence of finalised legislation until after 5 April 2014, the individuals will need a strong level of certainty around the final level of detail that will eventually apply. The level of advice needed (along with the detail of the individual s pension arrangements) for the choice between FP14 and IP14 is more significant than previous protection regimes. Those for whom protection may be appropriate will need to begin considering their position before the end of the year and therefore, regardless of the actual legislative timetable, the response to this consultation and any subsequent clarifications needs to be published very promptly. Utmost speed is essential as it is not until this point that providers and schemes can communicate in sufficient detail with those who may be potentially affected. Ideally we would have liked a compromise arrangement allowing a window where the individual can make the decision between the two regimes without losing access to FP14. But although this would address the current issues we accept it would have raised its own Page 9

10 problems, mainly around unwinding contributions/accrual if the option chosen is FP14 (of which we are not in favour). The problem for individuals in making the decision as to which option is best for them will be around the availability and quality of advice they can obtain. The depth of understanding of defined benefit pensions (which will be the main stumbling block in these considerations) is not high in the smaller sector of this market, and will possibly lead to situations where we genuinely want to help but will be limited in our ability to do so. From a provider perspective we believe that generally the administration issues and burdens will be manageable. However, we have identified a number of issues: Care will need to be taken when an individual requests a valuation of benefits to ensure that the appropriate basis is used for IP14. Care will also be needed in relation to benefit crystallisation events that arise between 6 April 2014 and the date that individuals can apply for IP14 and they receive their certificate. One course of action in some circumstances would be for payment of benefits and the benefit crystallisation event to be deferred until a certificate can be obtained. Alternatively, where individuals are able to obtain an accurate valuation of their benefits at 5 April 2014 and intend to apply for IP14, it would avoid revisiting the crystallisation calculations if scheme administrators could accept a declaration of intention from the individuals to assume that a personalised lifetime allowance applies. There will also be a complication if a member wishes to crystallise benefits between 6 April and Royal Assent (if they haven t also applied for Fixed Protection). This is particularly true for those turning 75 in those months they will be unable to apply for the protection they are entitled to (or delay their BCE) so their pension provider is likely to have to apply a Lifetime Allowance charge to their fund. Please clarify whether there will be a process for claiming a refund of this? We envisage that a number of those applying for IP14 will be those who missed the deadline for FP14 and would suggest that an extension to the FP14 deadline (at least to the time when IP14 becomes available) would be appropriate. We would also be grateful for further clarification of the following points: Annuity providers would potentially be forced to hold aside any potential LTA excess and add it to the policy later when IP14 is available. Acting in good faith and assuming that IP14 is available, it would then be impossible to determine what level of PLTA would be likely to be available and so there is a likelihood of making inadvertent unauthorised payments. We presume these would be covered by the genuine error provisions, but would appreciate some clarity from HMRC on this point. Applying a reduction in income paid under an annuity can be difficult from a systems perspective and we may not be able to apply the reduction in the manner required. Similarly, if the member was in drawdown and drew too much income at the beginning of their pension year and then 8 months later a Lifetime Allowance charge Page 10

11 is applied retrospectively, we would expect this to be reflected in the GAD Maximum. The payments made to date might then not necessarily be unauthorised but it may mean that the member is unable to draw more income until the beginning of the new pension year. Although this is unlikely to cause any hardship (given the level of pension saving required before this is an issue), some clarity on this issue would be appreciated. Finally, it would be helpful to have an idea of how long it will take HMRC to process applications as this could result in a further delay to members being able to make use of IP14. Question 12: If you have any comments on the draft legislation at Annex B, please include these as part of your response For the most part we have incorporated comments on the legislative approach within our responses above particularly our responses to questions 2 and 3. However, it would be helpful to have written confirmation that where an individual has fixed protection 2012, in valuing benefits for the purposes of obtaining IP 2014, SLT used in the calculations at paragraphs 2 and 3 of schedule 1 (appended to the consultation on IP 2014) is the standard lifetime allowance of 1.5m, and not the deemed standard lifetime allowance that applies for fixed protection 2012 of 1.8m. It does not seem logical that the same benefit may have a different value depending on whether or not the individual has protection. Question 13: Does the Tax Information and Impact Note at Annex C capture correctly the impacts and burdens associated with the introduction of IP14? We believe that the impact on individuals should acknowledge the issues that they will need to deal with as explained in our answer to question 11. The impact on business could acknowledge the need for businesses to inform those likely to be impacted and the change to processes and calculations at benefit crystallisation events that will be needed. Additional comments A couple of further points: One anomaly we have identified with the various protection regimes is with regard to the calculation of a scheme specific lump sum of greater than 25%. The calculation of ALSA will vary depending on whether the member has no protection, FP12 or 14 and IP14 (above 1.25m and below 1.5m) as the current standard lifetime allowance used in the calculation will differ in each circumstance. Could you confirm whether or Page 11

12 not this is the policy intention? If not, we think that our suggestion in response to question 3 provides a solution. (But in any case, the impact that IP14 has on the calculation of such lump sums should be clearly set out in guidance). We would also be very grateful for early clarification that the statement should show a percentage of the standard lifetime allowance, as was the requirement for primary protection, or the personalised lifetime allowance.(psla). If we are to quote a percentage of the PSLA it will have impact and cost for system enhancements. It would also give further complexities especially around retirement quotes. When stating the benefits available providers need to tell clients how much of the lifetime allowance are being used up by the BCE's. And at that point providers may not be aware whether or not clients hold any protection certificates and if they do, which one. Again, we think that our proposal in response to question 3 addresses this. Page 12

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