abcd Pensions Convention June 2003 AGENDA Valuation : Gilt or Equity MFR Transfer values State benefits Winding-up priorities Debt on employer
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1 abcd Pensions Convention June 2003 WINDING UP PRACTICALITIES CHRIS MULLEN PINSENTS RUSSELL AGIUS HIGHAM GROUP AGENDA Valuation : Gilt or Equity MFR Transfer values State benefits Winding-up priorities Debt on employer Gilt or Equity MFR (1) Interaction of MFR on wind-up: (i) Investment policy (SIP) (ii) Section 75 debt / GN19 (iii) Section 73 allocation of assets
2 Gilt or Equity MFR (2) (i) Investment policy / MFR Ongoing : Equity holdings / Equity MFR Wind-up : Gilt / bond holdings SIP : Gilt matching policy? Consult employer GM in SIP => Gilt MFR option Not GM in SIP => Equity MFR only Gilt or Equity MFR (3) (ii) S75 Debt / MFR Pre 3/02 : MFR values for GN19 Post 3/02 : MFR / buyout values for GN19 Gilt MFR > Equity MFR GM policy => Higher S75 debt Increased recovery from GM policy? Gilt or Equity MFR (4) (iii)s73 allocation / MFR Statutory priority order: Post 3/02 Expenses Actual (a) AVCs [Buyout] (b) Current pens (flat) Buyout (c) C/out bens (flat) MFR (d) Incs on (b) Buyout (e) Incs on (c) MFR (f) All other bens MFR Gilt MFR => MFR values increase in (c), (e) and (f) Debt NOT recovered => Higher priorities gain Surplus exists => Redistribution of surplus
3 Gilt or Equity MFR (5) Conclusions Advise Trustees on interactions / implications Legal and investment advice needed Overall effect is scheme specific Transfer Values (1) Potential difficulties Time limits still apply (quoting / payment) OPRA extension to payment (not quote) Scaleback to extent necessary to comply with S73 No margin allowed Guarantee still applies Structured settlements : Full and final? Transfer Values (2) Possible Solutions 6 month quotation window Two-stage transfer payments (PSO Update 40) Margin within S73 assessment itself Ask members to defer requests Transfer assets to insurer
4 State benefits Deemed Buyback (1) Post 4/97 wind-ups Conditions to be met: (i) Insolvent employer (ii) MFR funding < 100% (iii) Insufficient assets to secure c/o rights (iv) Actual TV < MFR TV and (v) Actual TV < Technical Amount State benefits Deemed Buyback (2) Whole of Actual TV paid to State Members informed written consent (Partially) restores benefits in State Scheme Benefit differences exist Any actual cases? DEEMED BUYBACK: LEGAL ISSUES (1) Complexity and cost Uncertainty and risk Problems with informed consent Further delays Benefit (if any) may affect few members
5 DEEMED BUYBACK: LEGAL ISSUES (2) Complexity and cost (i) (ii) (iii) (iv) meaning of insolvent employer unable to provide sufficient additional funds hybrid schemes limited restoration of State rights where MFRTV<TA (v) differences between Regulations and CA15 Guidance Informed consent (i) member may not understand (ii) member may consent, but then get reduced pension Delays (i) (ii) manual calculations carried out at end of winding-up process? DEEMED BUYBACK: LEGAL ISSUES (3) Are Trustees under a duty to investigate DB? How far should Trustees go? (when money is short?) What if Trustees decide not to follow DB route? Will the picture become clearer? WINDING-UP PRIORITIES: SOME LEGAL ISSUES (1) Gilts-matching: legal issues The solvent employer basis under s73 PA 1995 Practical problems with the law
6 WINDING-UP PRIORITIES: SOME LEGAL ISSUES (2) (i) Gilts-matching Wording of SIP critical Adopted at the applicable time or retrospectively? The improper purpose argument Impact on Transfer Values Area of risk for actuaries/investment consultants WINDING-UP PRIORITIES: SOME LEGAL ISSUES (3) (i) Gilts-matching (cont'd): Risks for actuaries/investment consultants Failure to use the correct wording in SIP Failure to raise with the Trustees (in time) No explanation of implications Speed! Impact on coverage estimates, TVs etc WINDING-UP PRIORITIES: SOME LEGAL ISSUES (4) (ii) Solvent employer basis Scope (i) meaning of insolvency event (ii) pre wind ups Effect Who are pensioners? (i) early retirement? (ii) split NRD? (iii) late retirement? What are pension increases? A fundamental misconception?
7 WINDING-UP PRIORITIES: SOME LEGAL ISSUES (5) (iii) Practical problems with the law new interpretations continue to arise differences of view: (i) actuary v lawyer (ii) lawyer v lawyer (ii) lawyer/actuary v government changes during winding-up: (i) in the law (ii) in the assets (iii) in the liabilities risks for trustees and their advisers! DEBT ON THE EMPLOYER (1) Debt under the Scheme Rules Debt under the Schedule of Contributions Section 75 Debt DEBT ON THE EMPLOYER (2) (ii) Debt under the Scheme Rules (pre wind-up commencement) Is there an opportunity to improve funding position Rules may allow: (i) unilateral action by Trustees/Actuary (ii) single contribution (iii) one or all employers (iv) buy-out cost basis Can create immediate debt - creditor status Procedure important (i) what is role of actuary? (ii) is actuary a fiduciary? Risks for actuaries!
8 DEBT ON THE EMPLOYER (3) (i) Debt under Schedule of Contributions Pre wind-up period issue Creditor status/negotiating position Wording of Schedule of Contributions (i) needs careful review (ii) can be critical (e.g. payroll/percentage v fixed amounts) (iii) employers all referred to? (iv) legal status Front end loading? Risk for actuaries! DEBT ON THE EMPLOYER (4) (iii) Section 75 debt Impact on other debts/claims Application (i) MP schemes (ii) MP benefits (iii) Hybrids Applicable time (i) continuing schemes (ii) winding-up How many applicable times? DEBT ON THE EMPLOYER (5) (iii) Section 75 debt (cont d) Continuing scheme: employers (i) withdrawing employer (ii) withdrawing eligibility (iii) no-one eligible (temporarily?) Section 75 discharges (i) if no valuation (ii) where MFR valuation positive (iii) where MFR valuation negative
9 DEBT ON THE EMPLOYER (6) (iii) Section 75 debt (cont d) Apportionment of debt (i) attributable to employment (ii) Rule amendments (iii) Regulation 12: Trustees discretion? Provision of actuarial certificate (i) Bradstock case (ii) practical issues Compromise of debt (i) Section 15 Trustee Act 1925 (ii) Bradstock ruling WINDING-UP PRACTICALITIES: LEGAL ISSUES Conclusions Many difficult legal/practical issues: significant risks Actuaries may need to lead the Trustees act (more) swiftly (than usual!) review position of schemes that may wind-up A partnership with other professional advisers
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