Determinations Panel procedure

Published: 25 October 2022

Summary

This procedure sets out how the Determinations Panel of the Pensions Regulator (TPR) operates, how it interacts with TPR’s case teams, and what those involved in the cases it considers can expect. The Determinations Panel may decide not to follow this procedure if it has a good reason and if it does it will inform those affected, providing an explanation and adequate notice.

Please also read the separate Case Team procedure which applies to the work of TPR’s case teams in cases which may be considered by the Determinations Panel.

Who this document is for

This is for anyone who is, or may be, involved in cases considered by the Determinations Panel. It is also for those interested in understanding how the Determinations Panel operates, including trustees, employers, legal advisers and other industry stakeholders.

Legal references

This procedure is a revised statement of the Determinations Panel procedure determined under sections 93(3) and 99(11) of the Pensions Act 2004.

References in this procedure to the law that applies in Great Britain should be taken to include corresponding legislation in Northern Ireland.

This procedure is dated 25 October 2022. It replaces previous versions of the Determinations Panel procedure published in July 2006, June 2008, January 2013 and March 2019. It will remain in force until it is revised. The Determinations Panel will review this procedure every two years.

Glossary

Terms shown in bold type are explained further in the Glossary. Otherwise, terms are defined in the main body of this procedure.

The role of the Determinations Panel

1. The Determinations Panel exercises certain regulatory powers (functions) on behalf of TPR. These are the reserved regulatory functions set out in section 93(2)(c) of the Pensions Act, together with any functions delegated to the Determinations Panel by TPR under paragraph 20(4) of Schedule 1 of the Pensions Act 2004.
2. Although the Determinations Panel is part of TPR, its members are not employees of TPR. The Determinations Panel makes its case decisions independently and has its own support staff, including legal advisers.
3. The Determinations Panel only becomes involved in a case if it is asked to decide whether to exercise a regulatory function. Up to that point, the Determinations Panel and its support staff play no part in TPR’s investigations and preparation in relation to that case, which are handled by a TPR Case Team.
4. The procedure followed by a Case Team in its cases involving the exercise of the regulatory functions reserved to the Determinations Panel under section 93(2)(c) of the Pensions Act 2004 is the separate Case Team procedure (Case Team Procedure).

Referring and withdrawing cases

5. Referrals to the Determinations Panel are made by a Case Team (including cases relating to an application by a third party asking TPR to exercise a regulatory function listed in section 10(6) of the Pensions Act 2004 (Third Party Application)) and may be made under one of two procedures: Standard Procedure or Special Procedure. Once a case is referred to the Determinations Panel it will apply the procedure in this document.
6. The Case Team (or, in the case of a Third Party Application under Standard Procedure, the third party) may withdraw the case, or aspects of it, in accordance with the Case Team Procedure at any point before the Determinations Panel sends its Determination Notice to the Case Team and the Directly Affected Parties identified by the Case Panel.

Standard Procedure

Referrals to the Determinations Panel

7. If a Case Team refers a case to the Determinations Panel, it will send the Determinations Panel all the relevant case material, including the Warning Notice, any representations, responses and replies, and all the evidence, such as documents, witness statements and expert reports, that accompanied those documents (in accordance with the Case Team Procedure). The Case Team will also set out its view on whether it and the Directly Affected Parties identified by the Case Team should be permitted to attend the Determination Meeting, and will provide any correspondence received in relation to this question from the Directly Affected Parties identified by the Case Team to the Determinations Panel. 

Appointment of a Case Panel

8. As soon as reasonably practicable after a case has been referred to the Determinations Panel, the Panel Chair will appoint one or more Determinations Panel members to be the Case Panel who will consider the case, and will appoint a Case Chair. The Panel Chair may be a member of the Case Panel, and may also be the Case Chair. 
9. The Case Panel will usually comprise two or three members, but the Panel Chair may decide to appoint only one member where an urgent decision is required and it is not practicable to convene a larger panel, or where the case is simple and non-contentious. The Panel Chair may decide to appoint more than three members, for example in cases of particular complexity.
10. If a Case Panel member becomes unable to fulfil their role for any reason, the Panel Chair will decide, having regard to the overall requirement of fairness, whether to appoint a replacement member, or whether the Case Panel should reach its determination(s) with only the remaining members. If the Case Chair becomes unable to fulfil their role for any reason, the Panel Chair will appoint a replacement.
11. The Panel Chair will seek to identify any apparent conflicts of interests, or other potential reasons why it would not be appropriate for a Determinations Panel member to be appointed to the Case Panel. The Case Team and the Directly Affected Parties identified by the Case Team will be told who has been appointed, and will have an opportunity to raise objections for consideration.

Case management

12. The Case Panel will consider how to manage the case and what arrangements should be in place in preparation for the Determination Meeting. The Case Chair may choose to make case management decisions alone or with other members of the Case Panel. If any case management decisions need to be made before the appointment of the Case Panel, these will be made by the Panel Chair. Where the Case Panel, Case Chair, or Panel Chair (as the case may be) considers it appropriate, the views of the Case Team and the Directly Affected Parties identified by the Case Team will be sought before case management decisions are made.
13. Case management decisions which the Case Panel may make include:

    13.1. whether the Case Team and the Directly Affected Parties identified by the Case Team should be invited to attend the Determination Meeting and, if so, whether this should be held in public. This will take account of any representations made by the Case Team or the Directly Affected Parties identified by the Case Team on these questions (including any response to the Case Team’s view as communicated under paragraphs 24(i) or 56(i) of the Case Team Procedure), as well as the particular circumstances of the case. These circumstances could include, for example, whether there are legal or evidential issues, or issues concerning honesty, integrity, capability or competence, on which oral submissions or oral evidence from the Case Team and the Directly Affected Parties identified by the Case Team would assist the Case Panel

    13.2. the timing and format of the Determination Meeting

    13.3. whether the Case Team or the Directly Affected Parties identified by the Case Team should be asked, or allowed, to make further submissions, to provide further information, or to disclose further documents in advance of the Determination Meeting. The Case Panel will only ask for further information or documents which relate to issues raised in the case papers

    13.4. whether, for the purposes of the Determination Meeting, the Case Panel should consider information or submissions made by persons other than the Case Team or Directly Affected Parties identified by the Case Team. This may include inviting these persons to make formal representations and participate in the same way as the Directly Affected Parties identified by the Case Team 

    13.5. whether, in the particular circumstances of the case, any of the Directly Affected Parties identified by the Case Team should no longer be treated as directly affected. In that event, subject to paragraphs 18 and 19 below, the Case Panel will consider any representations and other material already submitted by any such party.

14. The Case Panel will inform the Case Team and the Directly Affected Parties identified by the Case Team of its case management decisions and will provide brief written reasons for significant case management decisions (including, for example, a decision to refuse a request made by the Case Team or any of the Directly Affected Parties identified by the Case Team to attend the Determination Meeting).
15. If the Case Panel has decided to invite the Case Team and the Directly Affected Parties identified by the Case Team to attend the Determination Meeting, the invited parties can choose whether to be legally represented at this meeting. When fixing a date for the Determination Meeting, the Case Panel will, as far as it reasonably can, take into account the availability of the Case Team and the Directly Affected Parties identified by the Case Team, as well as any legal representatives they have instructed. The Case Panel will usually give at least 20 working days’ notice of the Determination Meeting.

The Determination Meeting

16. The Determination Meeting will usually take place in private, whether or not the Case Team and the Directly Affected Parties identified by the Case Team are present. In all cases the Determination Meeting will be attended by the Case Panel and members of its support staff. It will be conducted as the Case Panel considers appropriate, in the light of the case management decisions and subject always to the overall requirement of fairness. 
17. The Determinations Panel process is administrative, not judicial. The Case Panel cannot summon anyone to attend before it and give evidence at this meeting or summon them to produce documents for this purpose.
18. The Case Panel will consider:
    

    18.1. all the information which was supplied to it by the Case Team on referral, and

    18.2. any further relevant information or documents which it has received by request, or given permission to be submitted, provided that the Case Panel is satisfied that there has been a fair and adequate opportunity to consider and respond to it.

19. The Case Panel will only consider the material referred to in paragraph 18 above if it has been made available to the Case Team and the Directly Affected Parties identified by the Case Team.
20. Where the Case Team and any of the Directly Affected Parties identified by the Case Team attend the Determination Meeting, they will be invited to make their submissions and/or respond to questions from the Case Panel. In its case management decisions before the Determination Meeting the Case Panel will provide reasonable notice of whether these should be provided in writing and/or orally. At the end of the Determination Meeting, the Case Panel will indicate to the Case Team and the Directly Affected Parties identified by the Case Team when it expects to issue a Determination Notice.
21. Where the Determination Meeting is held without the attendance of the Case Team and the Directly Affected Parties identified by the Case Team, they will be told in advance when it is taking place and when the Case Panel expects to issue a Determination Notice.

Determination(s), Determination Notice and exercise of function

22. In making its determination(s):

    22.1.each Case Panel member has one vote. If there is a tie, the Case Chair has the casting vote. If the decision is by majority vote, the Determination Notice will state this and the reasons for it

    22.2.the Case Panel will decide who the Directly Affected Parties identified by the Case Panel are (these may be the same as the Directly Affected Parties identified by the Case Team)

    22.3.the burden of proof is upon the Case Team (or, in relation to a Third Party Application, on the third party). The standard of proof is the balance of probabilities.

23. The Case Panel will make its determination(s) based on its consideration of the material provided in accordance with paragraphs 18 and 19 above.
24. A determination is made when the Determination Notice is sent to the Case Team and the Directly Affected Parties identified by the Case Panel by the Determinations Panel’s support staff.
25. The Determination Notice will give the Case Panel’s determination(s) and will include the reasons for the determination(s). The Determination Notice will also explain the rights of the Directly Affected Parties identified by the Case Panel to refer the determination(s) to the Upper Tribunal within the reference period. The Upper Tribunal is the tribunal responsible for hearing challenges to the decisions of TPR, including the Determinations Panel. For determinations made under Standard Procedure, the reference period is no later than 28 days after the giving of the Determination Notice.
26. If a determination is made to exercise a regulatory function and the function may be exercised before the reference period expires, the Determinations Panel’s support staff will also send the Case Team and the Directly Affected Parties identified by the Case Panel the document that exercises the function (for example, an Order or Notice). The functions that may be exercised under Standard Procedure before the reference period expires are listed in section 96(6) of the Pensions Act 2004.
27. In some cases, if a determination is made to exercise a regulatory function, that function must not be exercised until the reference period has expired or, if a referral has been made, until that reference and any appeal against the Upper Tribunal’s determination has been finally disposed of. In such cases, if no referral is made, or if a determination to exercise a function remains in place following the final disposal of the referral and any appeal, the document that exercises the function will be sent to the Case Team and the Directly Affected Parties identified by the Case Panel as soon as possible afterwards.

Special Procedure

28. The Special Procedure is used in urgent cases (including Third Party Application cases), where, in summary, a Case Team considers that it may be, or is, necessary to exercise a function listed in section 97(5) of the Pensions Act 2004 immediately. It can be used before or after a Warning Notice has been issued.
29. The Case Team will send a Special Procedure Request to the Determinations Panel, including an explanation of the reason for the request and accompanying documents required under the Case Team Procedure. A Special Procedure Request will not be sent to any other parties at this stage.
30. The Panel Chair will appoint a Case Panel and will seek to identify any potential conflicts of interests, or other reasons why the appointment of any particular individual to a Case Panel would not be appropriate, when doing so.
31. The Case Panel will hold an Initial Decision Meeting. This meeting will be conducted as the Case Panel considers appropriate, having regard to the overall requirement of fairness, and the Case Panel will consider all the information supplied to it by the Case Team. The meeting will usually be held in private without any parties present and be attended by the Case Panel and members of its support staff. If the Case Panel considers it needs further information from the Case Team for the meeting, it may ask for this to be presented in writing or orally.

Determination(s), Determination Notice, Final Notice and exercise of function

32.  In making its decision(s) on whether or not to exercise the regulatory function(s) immediately:

    32.1. each Case Panel member has one vote. If there is a tie, the Case Chair has the casting vote

    32.2. the burden of showing that it is necessary to exercise the regulatory function(s) immediately will be on the Case Team.

33. If the Case Panel determines to exercise the regulatory function(s), it will decide the Directly Affected Parties identified by the Case Panel.
34. Any determination(s) to exercise a regulatory function(s) is made when the Determination Notice is sent by the Determinations Panel’s support staff to the Case Team and the Directly Affected Parties identified by the Case Panel.
35. As well as the Determination Notice containing a summary of the basis upon which the Case Panel decided to exercise the function(s), the Case Team and the Directly Affected Parties identified by the Case Panel will also be sent:

    35.1. copies of any documents or information which the Case Panel considered (including any information provided by the Case Team to the Case Panel orally)

    35.2. the document(s) exercising the function(s) (for example, an Order or Notice). In cases where an independent trustee is appointed, the Case Team and the independent trustee may be told of the appointment, and any associated orders made by the Case Panel, in advance of the other parties.

36. The Determination Notice will explain that the Determinations Panel is required to undertake a Compulsory Review of its initial determination(s) following which there will be a final determination(s) which will be set out in a Final Notice. The Determination Notice will also set out the rights of the Directly Affected Parties identified by the Case Panel to refer the final determination(s) reached on Compulsory Review to the Upper Tribunal within the reference period. For determinations made under Special Procedure the reference period is no later than 28 days after the giving of the Final Notice. The Case Panel’s full reasons for the determination(s) will not be included in the Determination Notice but will be provided as soon as possible (usually within five working days of the Determination Notice, unless not reasonably practicable), and in any event before the Directly Affected Parties identified by the Case Panel are asked to provide their representations on the Determination Notice. The Case Team and Directly Affected Parties identified by the Case Panel will also be told who is on the Case Panel, and have an opportunity to raise objections if they consider that any conflicts of interests (or other concerns about impartiality) arise.
37. The Compulsory Review will be held as soon as reasonably practicable after the Determination Notice has been sent and will usually be carried out by the same Case Panel that made the initial determination(s). Before this, the Case Panel will decide how to manage the Compulsory Review and will follow the procedure set out in paragraphs 12, 13.1-13.4,14 and 15 above (except that references to Determination Meeting and Directly Affected Parties identified by the Case Team should be read as references to Compulsory Review and Directly Affected Parties identified by the Case Panel respectively). The Case Panel may invite submissions from the Case Team and Directly Affected Parties identified by the Case Panel on whether they should be permitted to attend the Compulsory Review, and whether this should be held in public.
38. Before the Compulsory Review, the Case Panel will send its case management decisions to the Case Team and the Directly Affected Parties identified by the Case Panel. These will set out a timetable for them to send any representations in response to the Determination Notice, together with any other case management steps the Case Panel has decided are appropriate.
39. The Compulsory Review will follow the procedure set out in paragraphs 16-23 above (except that references to Determination Meeting, Determination Notice and Directly Affected Parties identified by the Case Team should be read as references to Compulsory Review, Final Notice and Directly Affected Parties identified by the Case Panel respectively).
40. When making its determination(s) on the Compulsory Review, the Case Panel will decide who the Directly Affected Parties identified by the Case Panel are and the Determinations Panel’s support staff will send the Final Notice to them and the Case Team.
41. The Final Notice will give the Case Panel’s final determination(s) and will state whether it has decided to confirm, vary, revoke, or substitute its initial determination(s) as well as setting out any consequential decisions relating to the document(s) exercising the function(s). The Final Notice will include the Case Panel’s reasons for the final determination(s) and will also explain the rights of the Directly Affected Parties identified by the Case Panel to refer the final determination(s) to the Upper Tribunal within the reference period.
42. If the Case Panel determines on Compulsory Review to vary or revoke an initial determination, its support staff will send the Case Team and the Directly Affected Parties identified by the Case Panel any documents required in order to give effect to the variation or revocation. If the Case Panel determines on Compulsory Review to exercise a different function from the one specified in its Determination Notice, it will adopt the procedure set out in sections 99(5) and (6) of the Pensions Act 2004 before sending the Final Notice (and any consequential documents required in relation to the function being exercised) to the Case Team and the Directly Affected Parties identified by the Case Panel.

Compulsory Review after Staff Determination

43. Where an initial determination(s) is made by TPR under its Staff Determinations Procedure (the procedure followed by TPR in its cases involving the exercise of the regulatory functions set out in section 93(2) of the Pensions Act 2004 that are not reserved to the Determinations Panel) a Case Panel will be formed to carry out a Compulsory Review of that determination(s), and will follow the procedure in paragraphs 37-42 above as it considers appropriate.

Publication of determinations

44. TPR’s policy on the publication of the Determinations Panel’s determinations can be found on TPR’s website.

Irregularities

45. The Case Panel may give directions to correct or waive a procedural irregularity before it makes its determination(s), and must do so if it considers that any person may have been prejudiced.
46. Factual errors (arising from an accidental slip or omission) or clerical mistakes in any notices, directions or orders issued by the Case Panel may be corrected by the Case Chair or Panel Chair. Any party to the case may apply for such corrections to be made or the Case Panel may decide to do so itself. A copy of the corrected document will be sent to the Case Team and the Directly Affected Parties identified by the Case Panel.

General

47. A case referred to the Determinations Panel may involve more than one Warning Notice or Special Procedure Request (for example because the case involves multiple parties and the possible exercise of multiple functions). Similarly, a case may involve the Determinations Panel giving more than one Determination Notice, or Final Notice. For the avoidance of doubt this procedure applies to all such cases, and all such documents. The Case Panel will make appropriate case management decisions in order to manage these cases.

Glossary

Case Chair

The member of the Determinations Panel selected by the Panel Chair to chair the consideration of the case (which could be the Panel Chair).

Case Panel

Members of the Determinations Panel selected by the Panel Chair to consider a case (which could include the Panel Chair).

Case Team

Staff of TPR who undertake, and/or make decisions in relation to, regulatory investigations and case preparation separately from the Determinations Panel.

Compulsory Review

The second Case Panel meeting under the Special Procedure, held in person, or virtually using an electronic medium, to consider whether to confirm, vary, revoke, or substitute the determination(s) to exercise the function(s) made following the Initial Decision Meeting, and any documents exercising such function(s).

Determination Meeting

The Case Panel meeting under the Standard Procedure, held in person, or virtually using an electronic medium, to consider whether to exercise the regulatory function(s) requested in the Warning Notice.

Determination Notice

The notice given by the Case Panel setting out its determination(s) in accordance with section 96(2)(d) or section 98(2)(a) of the Pensions Act 2004, as appropriate.

Directly Affected Parties identified by the Case Panel

The parties identified by the Case Panel as directly affected in accordance with sections 96(2)(d), 98(2)(a), 99(4) or 99(5) (as the case may be) of the Pensions Act 2004.

Directly Affected Parties identified by the Case Team

The parties identified by the Case Team as directly affected in accordance with section 96(2)(a) of the Pensions Act 2004 unless the Case Panel has decided that they should no longer be treated as such in accordance with paragraph 13.5 above.

Final Notice

The notice given by the Case Panel setting out its determination(s) in accordance with section 98(2)(e) of the Pensions Act 2004.

Initial Decision Meeting

The initial Case Panel meeting under the Special Procedure, held in person, or virtually using an electronic medium, to consider whether to exercise the regulatory function(s) set out in the Special Procedure Request immediately.

Panel Chair

The Chair of the Determinations Panel, or any Deputy Panel Chair undertaking this role in accordance with the Determinations Panel’s own procedures.

Special Procedure

The procedure set out in section 98 of the Pensions Act 2004 and provided for in this document and in the Case Team Procedure.

Special Procedure Request

A request by the Case Team for the Determinations Panel to exercise one or more regulatory functions listed in section 97(5) of the Pensions Act 2004 under the Special Procedure.

Standard Procedure

The procedure set out in section 96 of the Pensions Act 2004 and provided for in this document and in the Case Team Procedure.

Warning Notice

A notice given by a Case Team under Standard Procedure to Directly Affected Parties identified by the Case Team giving notice that TPR is considering whether to exercise one or more regulatory functions, as set out in section 96(2)(a) of the Pensions Act 2004.

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