Spotlight on defined contribution pension schemes

Transcription

1 OFT report The Pensions Regulator s Code of Practice The OCERP Spotlight on defined contribution pension schemes The OFT is empowered to conduct investigations into the workings of markets in the UK. The introduction of automatic enrolment (AE) has been referred to as a game changer in the pensions industry: it is anticipated that it will result in six to nine million additional people being enrolled into defined contribution (DC) schemes, and the value of assets invested in DC schemes doubling (from a current estimate of 275bn) by This, in conjunction with the increasing costs associated with defined benefit provision leading to a reduction in the number of employers offering defined benefit pensions, has brought DC arrangements into the spotlight in recent years. This briefing covers three developments from late We will focus mainly on the Defined contribution workplace pension market study a report by the Office of Fair Trading (OFT) published in September 2013 considering, in light of the renewed pressure on the DC market and the introduction of smaller and less sophisticated employers into the market as a result of AE, whether DC workplace pensions deliver value for money. We will also cover: Code of Practice no. 13 (Governance and administration of occupational defined contribution trust-based pension schemes), a new Code of Practice published by The Pensions Regulator (TPR) in November The Code covers five key areas: (i) know your scheme, (ii) risk management, (iii) investment, (iv) governance of conflicts of interest, and (v) administration; and from a European perspective: The OCERP: a Proposal for a European Personal Pension Product a proposal in September 2013 by the European Fund and Asset Management Association for an EU framework for personal pension products, implementing unified standards for personal pensions across a developing EU single market. David Pollard T E david.pollard@freshfields.com Charles Magoffin T E charles.magoffin@freshfields.com Dawn Heath T E dawn.heath@freshfields.com Andrew Murphy T E andrew.murphy@freshfields.com Hannah Machin T E hannah.machin@freshfields.com OFT report defined contribution workplace pension market study The OFT is empowered to conduct investigations into the workings of markets in the UK. It has the further power to make a market investigation reference to the Competition Commission if it has reasonable grounds for suspecting that any feature, or combination of features, of a market restricts or distorts competition. In January 2013 the OFT launched a study with the aim of examining whether, in the light of AE, competition is capable of driving value for money and good outcomes for scheme members in respect of DC workplace pensions. The OFT looked at both personal pensions (contract based) and DC occupational pension schemes (trust based). 1 1 See our briefing no. 248: Money Purchase Pension Schemes: Comparison of Trust Based with Contract Based (April 2013) Freshfields Bruckhaus Deringer llp 1

2 Its findings were published in September 2013 and concluded that: although the DC workplace pensions market was one of the weakest it had analysed in recent years (resulting in a significant detrimental effect on consumers); and the combination of initiatives already in place, and further recommendations set out in the report, rendered a reference to the Competition Commission disproportionate. The main reasons identified by the OFT as contributing to the lack of effective competition were: The pensions market is unusual in that the beneficiaries (ie employees) have little or no influence over the decisions which affect the value for money of their pension provision. weakness on the buyer side of the market, in large part due to a lack of understanding and engagement with pension products and the misalignment of incentives as between employers and employees; and the complexity of the product and a lack of transparency, particularly in respect of charges. Following publication of the OFT report, the Department for Work and Pensions (DWP) responded to the call for government intervention by launching (in October 2013) a consultation paper on proposals in relation to capping DC pension charges (amongst other things). Weak buyer market The OFT report emphasised weaknesses on the buyer side of the market, which were largely due to: lack of knowledge and engagement by employees. Pensions are perceived to be complicated, and the benefits are long term. This reduces the incentive to employees of engaging in the short term, and employees are not generally motivated to commit to monitoring continued value for money; and the split between decision makers and ultimate beneficiaries, and the resulting misalignment of incentives. The pensions market is unusual in that the beneficiaries (ie employees) have little or no influence over the decisions which affect the value for money of their pension provision. These key decisions are the responsibility of the employers (and sometimes pension scheme trustees). The OFT s research found that employers understandably tend to act in their own best interest, which may not necessarily align with the best interests of their employees. In particular employers are likely to: prioritise the interests of current employees rather than former employees, with whom they may no longer have a relationship. This is particularly relevant in relation to charges, which are typically higher for deferred members (see below); prioritise administrative simplicity and minimising upfront costs over the other elements of value for money (eg investment strategy, ongoing administrative charges, governance and member communications); and consider the setting up of pension provision as a one-off decision, with little expectation of ongoing monitoring or scrutiny. This may result in, for example, the continuation of obsolete investment strategies or charges that no longer reflect market value. The result is a lack of scrutiny in relation to longer term aspects of scheme quality by either employees or employers. The report therefore notes the importance of effective governance, which can substitute (to a degree) for this lack of scrutiny, and recommends that efforts to improve competition in the market focus on governance. This is a particular concern in relation to smaller employers entering the pensions arena for the first time with the introduction of AE, who may not have the resources to seek advice or implement effective governance procedures. The report notes that larger single employer schemes, particularly those with trustee boards as opposed to contract based schemes, tend to have good scheme governance. However, it cautioned against the trustee boards of hybrid or mixed schemes tending to prioritise the DB section. The increasing focus on governance standards and employee involvement in relation to contract based DC schemes is also reflected in TPR s new Code of Practice (see below). 2

3 Charges The OFT report identifies charges levied on scheme members as a key element of value for money. It notes, for example, that a 1 per cent Annual Management Charge (AMC) can reduce retirement savings by around 21 per cent. However, such charges are not subject to effective competition as they are levied on scheme members who may not even be aware of their existence (a 2012 survey by the Pensions Regulator found that only 32 per cent of active DC members were aware that charges were levied against their pots), much less in a position to affect decisions on this basis. The OFT report identifies charges levied on scheme members as a key element of value for money. Visibility and transparency The report notes that there is insufficient visibility and comparability of charges to ensure that competition on charges is fully effective. In particular, it is difficult to compare charges because there is: a lack of consistency in the way charges are presented as between providers; and insufficient disclosure of charges associated with investment management transactions. Visibility and comparability enable buyers to make informed judgements about value for money when it comes to charges, and so are necessary to effect competition in the DC pensions market. The report therefore welcomes an ABI initiative (to be implemented for all schemes by 31 December 2015) aimed at improving transparency in relation to charges by requiring a total charges figure to be disclosed to scheme members annually (to include eg administration costs, commissions paid to intermediaries, investment management charges and adviser charges). However, the OFT report argued that, to be effective, the elements comprising total charges' would need to be consistent (and indeed queried the appropriateness of the label total charges, given that it is not intended that this figure include investment transaction charges). Also, given the weak position of scheme members, it suggested that it would be more effective if this information were made available to employers at the point of choosing pension provision. The OFT report, while welcoming the initiative, noted that it is voluntary and that not all market participants are members of these industry associations. AMDs A particular practice highlighted by the report was that of charging a higher annual administration fee in respect of deferred members (known as AMDs). This practice was found to not be widely recognised by scheme members, and prevents competition on the basis of AMCs (such as there is) from having an impact in respect of deferred members. The report questions the fairness of this practice for the following reasons: AMDs add to the complexity of charging structures, and, given the general lack of employee engagement, employees are unlikely to be aware of and/or understand the impact of AMDs; employers are likely to focus on negotiating lower charges for current employees rather than deferred members, with whom they may not have an employment relationship; and the increase in charges for deferred members does not necessarily reflect increased administration costs for the provider in respect of those members. 3

4 Recommendations In light of the issues identified above, the OFT made the following recommendations: Improving governance to address buyer side weakness The OFT stressed that governance should be independent, expert, consider all key elements of value for money and have the ability to ensure that concerns are appropriately addressed in the interests of members. In particular the OFT: would like to see the government introduce minimum governance standards to ensure a consistent degree of ongoing scrutiny and assessment of value for money into the future; and The OFT stressed that governance should be independent, expert, consider all key elements of value for money and have the ability to ensure that concerns are appropriately addressed in the interests of members. welcomed the ABI s agreement to the introduction of Independent Governance Committees in all providers of contract based schemes, which will have as part of their remit the consideration of the value for money of schemes. Further, should the committee identify a problem in relation to value for money it will report this to the provider s board, which will be under a comply or explain duty. Improving the quality of information available Given the impact of the complexity and lack of transparency in relation to charges, the OFT recommends that: all costs and charges be disclosed in a framework that will allow employers to compare a commonly defined single charge (excluding investment management transaction costs); regulators agree a consistent methodology for reporting comparable information on investment management transaction costs and portfolio turnover (such work to be undertaken by the Financial Conduct Authority); and the government considers requiring information about the key elements of scheme quality (ie administration standards, past investment performance, quality of governance standards) be provided to employers in a comparable format. Audit/review of existing schemes In response to the risk of existing schemes providing poor value for money, the OFT also recommends that: in relation to contract based schemes, the ABI (which has agreed to do so) conduct an audit of at risk schemes (ie those with outdated or high charges), to be overseen by an Independent Project Board; and in relation to trust based schemes, TPR provide a framework to trustees to enable them to assess the value for money of schemes, and require that the results be communicated back to TPR. Charges To increase the likelihood of members who are automatically enrolled receiving value for money in the long term the OFT recommend that, for the purposes of AE: AMDs be banned so that deferred members are not penalised; and schemes with in-built commissions should not be used. DWP consultation The DWP launched a consultation on 30 October 2013 in relation to proposals on capping DC pension charges. Three options were suggested: a cap of 1 per cent of funds under management; a cap of 0.75 per cent of funds under management; or a comply or explain approach, with a default cap of 0.75 per cent but the option of a charge up to 1 per cent if this can be justified to TPR. Following the proposal, pensions minister Steve Webb commented that options other than those set out in the consultation could also be considered. However, in it was announced that any proposed cap would be delayed for at least a year. 4

5 The Pensions Regulator s Code of Practice Codes of practice The Pensions Regulator (TPR) is empowered by section 90 of the Pensions Act 2004 to issue Codes of Practice: containing practical guidance in relation to the exercise of functions under the pensions legislation; and There are currently 13 Codes of Practice that have been issued by TPR covering issues such as funding, membernominated trustees and notifiable events. regarding the standards of conduct and practice expected from those who exercise such functions. TPR Codes of Practice are not statements of the law there is no penalty is imposed for failure to comply with them. However, they do have superior status to TPR guidance in that: when determining whether legal requirements have been met, a court or tribunal must take any relevant provisions of a code of practice into account; and where there are grounds to issue an improvement notice, the directions contained in the notice may be worded by reference to a code of practice. There are currently 13 Codes of Practice that have been issued by TPR covering issues such as funding, member-nominated trustees and notifiable events. The DC Framework Unsurprisingly (given the increasing focus on DC schemes), the latest addition to this collection is in relation to DC schemes: Code of Practice no. 13 on the governance and administration of occupational defined contribution pension schemes (the DC Code) which came into force on 21 November The Code covers five key areas: know your scheme; risk management; investment; governance of conflicts of interest; and administration. While not a statement of the law, TPR Codes of Practice provide practical guidelines on the requirements of pensions legislation and set out the standards of practice expected. In addition to the DC Code itself, there is also DC Regulatory Guidance (the DC Guidance), and an introductory document (all three taken together, the DC Framework). The DC Framework is based on six DC principles, set out in the introductory document, which TPR believes trustees should adopt in order for DC schemes to be capable of providing good outcomes for members: Essential characteristics schemes are designed to be durable, fair, and deliver good outcomes for members. Establishing governance a comprehensive scheme governance framework is established at set-up, with clear accountabilities and responsibilities agreed and made transparent. People those who are accountable for scheme decisions and activity understand their duties and are fit and proper to carry them out. 5

6 Ongoing governance and monitoring schemes benefit from effective governance and monitoring through their full lifecycle. Administration schemes are well administered with timely, accurate and comprehensive processes and records. Communications to members designed and delivered to ensure members are able to make informed decisions about their retirement savings. The result is a fairly complex set of documents to be navigated by trustees and employers in fulfilling their roles in relation to DC schemes. These principles are expanded upon in the DC Code and Guidance. Flowing from the principles are quality features : the DC Code focuses on quality features that relate to the requirements of pensions legislation, whereas the DC Guidance covers quality features which reflect good practice. A useful aspect of the DC Framework is the direct way in which it addresses the distinction between legal requirements and practical examples of good practice, and acknowledges that other options are open to trustees (provided that the underlying legal requirements are met). During the consultation, the concern was raised that elements of the DC Code replicated existing codes of practice and guidance (eg in relation to investment) and that it was not clear whether the Code was intended to be comprehensive or be read in conjunction with other relevant codes of practice and guidance. TPR acknowledged this concern during the consultation on the draft code, and confirmed that the DC Code does not replace existing codes and guidance but rather complements it. The result is a fairly complex set of documents to be navigated by trustees and employers in fulfilling their roles in relation to DC schemes. 6

7 Such certified plans would benefit from an EU passport, which would enable its providers to market it throughout the EU. The OCERP: a Proposal for a European Personal Pension Product In September 2013 the European Fund and Asset Management Association (EFAMA) (a representative association for the European investment management industry) published a report entitled The OCERP: a Proposal for a European Personal Pension Product. The Officially Certified European Retirement Plan (OCERP) would allow individuals to choose between a number of investment options and guarantee that providers maintain a robust governance framework and administrative system. Rather than attempt to impose criteria on existing national pensions regimes, the intention is that the OCERP would be a new product which would adhere to particular standards in relation to: investment options; communication; governance and administration; and distribution. The focus on personal pensions, at least in the first instance, results from the differences in the existing national regimes in relation to occupational schemes, which EFAMA note represent a major hurdle to a single European product in respect of occupational pensions. EFAMA acknowledge that differences in national law will also pose obstacles in relation to the OCERP (particularly in relation to tax), but consider that this should not prevent a proposal being developed. To be binding, proposals would need EU or national governments to enact legislation. Essential characteristics EFAMA suggests that the main features of an OCERP are that they would: be funded schemes, managed by private financial institutions; be personal to the individual member, in that contributions would be made to an individual account held by the individual themselves or a third party on their behalf; allow individuals to determine the key aspects of their participation, for example contribution level and investment options; and benefit from favourable tax treatment. The final (and fundamental) feature is the process for certification: products which comply with the OCERP standards (described below) would be awarded OCERP status. Such certified plans would benefit from an EU passport, which would enable its providers to market it throughout the EU. Standards The standards suggested (which are consistent with personal pension products in many member states) are broadly as follows: Investment options OCERPs should: offer a limited (but adequate) range of investment options; specify an appropriate default option; categorise investment options according to their risk-reward profile; allow members to switch between options during the investment period; invest in a range of underlying products; 7

8 invest in accordance with the prudent person rule; offer options to manage investment risk; and offer a range of options for retirement (ie annuities, lump sums, phased drawdown plans). Communication OCERP providers should provide: a key information document; information to members annually, including: accrued balance; performance in the previous year; a summary of charges levied; and details of all costs and charges to prospective members in an easily understandable format. Governance and administration OCERP providers should: establish a robust governance framework, including the clear division of responsibilities as between service providers, the protection of underlying products against the insolvency of the provider and the implementation of adequate risk management and complaints handling procedures; and maintain efficient and effective administration systems, covering record keeping, the provision of information to supervisory authorities, the outsourcing of services and responses to system failures. Distribution Advice supplied to prospective members should be in accordance with uniform rules. Any financial institution subject to EU prudential rules could offer OCERPs. OCERPs should be transferable between providers and countries. Providers should be able to market OCERPs throughout the EU. freshfields.com Freshfields Bruckhaus Deringer llp is a limited liability partnership registered in England and Wales with registered number OC It is authorised and regulated by the Solicitors Regulation Authority. For regulatory information please refer to Any reference to a partner means a member, or a consultant or employee with equivalent standing and qualifications, of Freshfields Bruckhaus Deringer llp or any of its affiliated firms or entities. This material is for general information only and is not intended to provide legal advice. Freshfields Bruckhaus Deringer llp,, 37586