Amendments to employer debt Regulations

Transcription

1 March 2008 Pesios Legal Alert Amedmets to employer debt Regulatios The Govermet has at last issued Regulatios which will amed the law as to employer debts uder s75 Pesios Act The amedig Regulatios 1 were issued o 14 March 2008 ad will come ito force o 6 April The Govermet published a draft of the amedig Regulatios i August We commeted o the draft i our August Pesios Legal Alert. This ew Alert summarises the Regulatios ad explais how they differ from the draft. I short... The amedig Regulatios strip away some of the red tape as to the calculatio of employer debts. They also make it easier for the Regulator to give its blessig to Approved Withdrawal Arragemets, ad itroduce a ew, simpler, alterative just Withdrawal Arragemets allowig trustees ad employers to bypass the Regulator altogether i suitable cases. I some respects, however, the amedig Regulatios make life more complicated. I particular, ew requiremets will have to be met whe puttig i place rules which apportio deficit betwee employers. Trustees ad employers will eed to take advice about whether they ca rely o existig apportiomet rules i cases where employer debts are triggered after 6 April Basic priciples The existig Regulatios provide that a employer uder a defied beefit scheme is liable to pay a debt if the employer ceases to employ active members uder the scheme (whe at least oe other employer cotiues to do so), if the employer becomes isolvet, or if the scheme is woud up. The debt is ormally calculated by referece to ay deficit o a buy-out basis, i.e. a basis which reflects the cost of securig beefits by the purchase of auities. The amedig Regulatios do ot alter these basic priciples. The Regulatios do however make a umber of chages which are potetially importat where a corporate trasactio or restructurig is proposed. The key chages are outlied below. 1 The Occupatioal ccupatioal Pesio Schemes chemes (Employer ( mployer Debt ebt ad Miscellaeous Amedmets) Regulatios

2 Triggerig evets There is a small but importat chage as to the circumstaces i which a employer debt is triggered. Where a employer ceases to employ active members uder a multi-employer scheme, there will i future ormally be a 12-moth period of grace, such that a debt will ot be triggered if the employer expects to take o a further active member withi that period. To take advatage of the period of grace, the employer must give otice to the trustees o later tha a moth after it ceases to employ active members. This makes it less likely that a debt will be triggered by bad luck for example, where a sole employee dies or uexpectedly resigs. But employers will still eed to be alert to situatios where this might happe, ad will have to act promptly if it does. Ad the period of grace will ot assist where a scheme is closed to ew members, uless a employer is goig to take o someoe who is already a active member. Uder the draft Regulatios, there was a widely-criticised provisio whereby a debt would be triggered if all employers uder a multi-employer scheme ceased to employ active members at the same poit (e.g. upo freezig of accrual). This provisio does ot appear i the Regulatios as issued. There is however a provisio uder which a employer i a froze scheme will be able to trigger a debt by givig otice to the trustees, if it wats to crystallise its liability rather tha remaiig o the hook for a debt util the scheme is woud up. Deficit calculatio May actuaries have said that the calculatio mechaism prescribed i the existig Regulatios is uworkable for large schemes. The amedig Regulatios allow greater flexibility. I particular: O a employer withdrawal, trustees will have the optio (subject to certai coditios) of determiig assets ad liabilities usig uaudited updates of the most recet accouts ad valuatio. It will be possible to base liabilities o the estimated cost of buyig auities i cases where the actual cost caot be determied. Share of deficit; apportiomet The amedig Regulatios itroduce ew rules for determiig a employer s share of the deficit i a multi-employer scheme: Much as at preset, the default (the Liability Share ) will be the employer s share of the total buy-out deficit, the share beig calculated by referece to liabilities attributable to the employer 2. There will however be greater clarity as to the treatmet of trasferred-i liabilities, ad more flexibility to cater for cases where there are gaps i scheme records. It will be possible to put i place a apportiomet which allocates a differet share of the deficit to a employer. However, apportiomet will be permitted oly uder oe or other of the followig arragemets: 2 i.e. usig the formula K/L, where K = liabilities attributable to the employer, ad L = liabilities attributable to employmet with all curret employers. 2

3 March 2008 Pesios Legal Alert A Scheme Apportiomet Arragemet. This will require the approval of the trustees, ad i most cases will be permitted oly if the Fudig Test is met (see below). A Regulated Apportiomet Arragemet. This will be a optio oly where a scheme has etered, or is expected to eter, a assessmet period for the Pesio Protectio Fud. The arragemet will require the approval of the Pesios Regulator ad the PPF. Differet rules will apply as to the calculatio of a employer's share where a Withdrawal Arragemet or a Approved Withdrawal Arragemet is put i place (see below). Approved Withdrawal Arragemets The amedig Regulatios make major chages to the rules as to Approved Withdrawal Arragemets agreemets approved by the Regulator whereby the debt due from a withdrawig employer is reduced but a guarator gives the trustees a log-term guaratee. I particular: There will o loger be ay prescribed miimum as to the debt payable by the withdrawig employer. The debt will be whatever amout is specified for this purpose i the agreemet. The Fudig Test will have to be met. The tests which the Pesios Regulator applies whe decidig whether to approve a Approved Withdrawal Arragemet will be relaxed. Most importatly, the Regulator will o loger have to be satisfied that the Arragemet makes it more likely that the full employer debt will be paid. Istead, the Regulator will have to cosider a variety of factors relevat to the proposed Arragemet, icludig the fiacial circumstaces of the guarator ad how the Arragemet will affect the security of beefits. Withdrawal Arragemets The amedig Regulatios itroduce a simpler alterative to a Approved Withdrawal Arragemet a Withdrawal Arragemet. This is a arragemet whereby the debt payable by a withdrawig employer is reduced but a guarator gives the trustees a log-term guaratee. The key rules are as follows: The debt due from the withdrawig employer will have to be at least Amout A. Amout A is the employer s share of the total deficit o the statutory fudig regime 4 ( SFR ) basis (or, if the scheme has ot yet moved oto the SFR basis, the PPF valuatio basis), the share beig calculated by referece to liabilities attributable to the employer. The amout to be guarateed by the guarator will be calculated much as uder the existig Regulatios for Approved Withdrawal Arragemets, o either a fixed or a floatig basis. The Fudig Test will have to be met. The Withdrawal Arragemet will ot eed to be approved by the Regulator. However, a Approved Withdrawal Arragemet will be a optio oly where the debt is less tha Amout A see below. If the withdrawig employer proposes to pay Amout A i full, the parties should opt istead for a Withdrawal Arragemet. 4 i.e. uder Pesios Act

4 However, the trustees will have to be satisfied that the guarator has sufficiet fiacial resources to be likely to be able to pay the guarateed amout. Fudig Test For the Fudig Test to be met, the trustees must be satisfied that the remaiig employers will be reasoably likely to be able to fud the scheme i accordace with the SFR. The trustees may coclude that this coditio is met if the remaiig employers will be able to pay the cotributios due uder a SFR schedule of cotributios. I the case of a Scheme Apportiomet Arragemet, the trustees must also be reasoably satisfied that the Arragemet will ot adversely affect the security of members beefits as a result of ay material ad adverse chage either to the assumptios uderlyig the last SFR valuatio or to ay SFR recovery pla. Trasfers-out The amedig Regulatios will give a withdrawig employer the chace to reduce its debt by arragig a trasfer of assets ad liabilities to aother scheme. This will apply whether the employer is payig its Liability Share or is eterig ito a Withdrawal Arragemet or Approved Withdrawal Arragemet. Normally the reductio will be available oly if the trasfer is made withi 12 moths of withdrawal. The trasfer will be equal to the trasferred liabilities which relate to the withdrawig employer less the value of assets trasferred i respect of those liabilities. Trustees amedmet power Trustees will have a uilateral statutory power to amed a scheme by resolutio for the purpose of apportioig deficit betwee employers. Curretly trustees have such a power oly i schemes where there would otherwise be o power at all to make apportiomet amedmets. This is a potetially sigificat chage i the balace of powers betwee trustees ad employers. Apportiomet ow a otifiable evet Uder the amedig Regulatios, trustees will have to otify the Regulator if they decide to take actio which results (or is iteded to result) i ayoe eterig ito a Scheme Apportiomet Arragemet. PPF eligibility There was a cocer that the apportiomet of deficit betwee employers could, i some circumstaces, jeopardise a scheme s eligibility for the Pesio Protectio Fud. The amedig Regulatios address this cocer. They make it clear that a Scheme Apportiomet Arragemet will ot jeopardise PPF eligibility. Nor will ay of the other Arragemets permitted uder the amedig Regulatios. 4

5 March 2008 Pesios Legal Alert Trasitioal measures I broad terms, if a employer debt was triggered before 6 April 2008, the existig Regulatios apply without amedmet 5. If a employer debt is triggered o or after 6 April 2008, the amedig Regulatios apply. However, a existig apportiomet provisio i scheme rules will remai effective eve i respect of debts triggered o or after 6 April 2008, provided that the followig coditios are met: The apportiomet rule was i force before 14 March A agreemet is etered ito ot later tha 6 April 2009 o the basis that the apportiomet rule will apply after 6 April 2008 i relatio to a specific employer withdrawal or widigup of the scheme. The trasactio to which the agreemet relates was cosidered before 14 March 2008 by at least oe of the parties to the agreemet, or by a coected or associated perso. The employer withdraws or widig-up begis before 6 April I additio, if a pre-6 April 2008 exercise of a apportiomet rule required liabilities to be attributed to a employer i a particular way, the liabilities will cotiue to be attributed i that way o ad after 6 April This could be relevat if, for example, employer A withdrew before 6 April 2008 ad a apportiomet rule provided for part of A s liabilities to be attributed to employer B. If you would like to discuss the issues raised i this Alert, please speak to your ormal adviser i our Pesios Group or cotact: Richard Evas Parter Tel: +44 (0) Joatha Moody Parter Tel +44 (0) Subject to oe poit: where the debt has ot yet bee calculated by 6 April 2008, the it will be possible to base liabilities o the estimated cost of buyig auities if the actual cost caot be determied. 5

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