First Previous (PART 2 Amendments to the Social Welfare Acts ) Next (PART 4 Miscellaneous Amendments to other Acts )

5 2006

SOCIAL WELFARE LAW REFORM AND PENSIONS ACT 2006

PART 3

Amendments to the Pensions Act 1990

Definition (Part 3).

38 .— In this Part “ Principal Act ” means the Pensions Act 1990 .

Notice of intention by Pensions Board to prosecute.

39 .— (1) The following sections are inserted after section 3 of the Principal Act:

“Notice by Board of intention to prosecute.

3A.— (1) Where the Board has reasonable grounds for believing that a person to whom section 3(1) or (4) or 18(5) applies has committed an offence under this Act and is liable to summary prosecution by the Board, the Board may give to the person a notice in writing in the prescribed form stating that—

(a) the person is alleged to have committed that offence,

(b) the person may during a period of 21 days beginning on the date of the notice—

(i) remedy as far as practicable to the satisfaction of the Board any default that constitutes the offence, and

(ii) make to the Board a specified payment of a prescribed amount accompanied by the notice,

and

(c) a prosecution of the person to whom the notice is given in respect of the alleged offence will not be instituted during the period specified in the notice and, if the default is remedied to the satisfaction of the Board and the payment specified in the notice is made during that period, no prosecution in respect of the alleged offence will be instituted.

(2) Where a notice is given under subsection (1)—

(a) the person to whom it applies may, during the period specified in the notice, make to the Board the payment specified in the notice, accompanied by the notice,

(b) the Board may receive the payment and issue a receipt for it, and any payment so received shall not in any circumstances be recoverable by the person who made it, and

(c) a prosecution in respect of the alleged offence shall not be instituted in the period specified in the notice and, if the default is remedied to the satisfaction of the Board and the payment specified in the notice is made during that period, no prosecution in respect of the alleged offence shall be instituted.

(3) In a prosecution for an offence to which this section applies, the onus of showing that a payment pursuant to a notice under this section has been made shall lie on the defendant.

(4) All payments made to the Board under this section shall be paid into or disposed of for the benefit of the Exchequer in the manner that the Minister for Finance may direct.

(5) (a) A notice under subsection (1) may be given to the person to whom it applies—

(i) by delivering it to the person, or

(ii) by leaving it at the address at which the person ordinarily resides or, in a case in which an address for service has been provided, at that address, or

(iii) by sending it by post in a prepaid letter addressed to the person at the address at which the person ordinarily resides or, in a case in which an address for service has been provided, to that address.

(b) Where a notice is to be given to a person who is the owner or occupier of land and the name of the person cannot be ascertained by reasonable inquiry, it may be addressed to the person by using the words ‘the owner’ or, where appropriate, ‘the occupier’.

(c) For the purposes of this section, a company within the meaning of the Companies Acts 1963 to 2005 shall be deemed to be ordinarily resident at its registered office, and every other body corporate and every unincorporated body shall be deemed to be ordinarily resident at its principal office or place of business.

(6) Any amount prescribed for the purposes of subsection (1)(b)(ii) shall not in any case exceed the maximum fine which may be imposed on summary conviction for the offence concerned.

Prosecutions.

3B.— (1) Every document purporting to be a copy of, or extract from, any document kept by the Board and purporting to be certified by an officer of the Board authorised in that behalf by the Board, whose official position it shall not be necessary to prove, to be a true copy of, or extract from, that document shall, without proof of the signature of that officer, unless the contrary is proved, be admissible in evidence in all legal proceedings as of equal validity with the original document.

(2) In any legal proceedings (including proceedings relating to an offence) a certificate signed by an officer of the Board authorised in that behalf, whose official position it shall not be necessary to prove is, without proof of that officer’s signature, admissible, unless the contrary is proved—

(a) if it certifies that the officer has examined the relevant records and that it appears from those records that a specified notice was given or sent to a stated person at, or left at, the address and on the date stated therein, as evidence that the notice was given or sent to that person at, or left at, that address on that date,

(b) if it certifies that the officer has examined the relevant records and that it appears from those records that a specified notice was given or sent to a stated person, or left at the address and on the date stated therein, as evidence that the notice was received by that person at that address on a date 3 days after the date on which the document was given or sent to the person at, or left at, that address,

(c) if it certifies a document as a copy of the registration details of a scheme with the Board by the trustees of that scheme in accordance with section 60, as evidence of the registration,

(d) if it certifies that the officer has examined the relevant records and that it appears from those records that during a specified period a document or any other thing was not received from a specified person, as evidence that the person did not during that period provide that document or thing and that the document or thing was not received by the Board, or

(e) if it certifies a document to be a copy of an authorisation by the Board under section 16, authorising the delegation of functions to the chief executive or a member of staff of the Board, including but not limited to the function of instituting proceedings on behalf of the Board, as evidence that the functions are so delegated.

(3) In this section—

‘officer of the Board’ means a member of the Board, the chief executive or member of staff of the Board;

‘notice’ means any request, notice or other document.”.

Indemnity.

40 .— The following section is inserted after section 26 of the Principal Act:

“Indemnity.

26A.— The Minister may, in the manner and to the extent and subject to the terms and conditions that the Minister may determine from time to time in consultation with the Minister for Finance, indemnify any person who is or was a member, chief executive officer or officer of, or member of any committee of, the Board in respect of any act by or omission of that person in the performance of his or her functions under this Act unless the act or omission is shown to have been in bad faith.”.

Index-linked benefits.

41 .— The Principal Act is amended—

(a) in section 40, by inserting the following after the definition of “funding standard”:

“ ‘index-linked benefits’ means benefits which, under the rules of a scheme, are increased while in payment at a rate wholly or partly linked to increases in an index of the cost of living or of wages or salaries or increases in salaries actually or notionally payable to serving employees in the relevant employment;”,

(b) in section 41(2)(c) (as amended by the Social Welfare and Pensions Act 2005 ), by inserting “, (3A), (3B)” after “subsections (3)”,

(c) in section 46(1)—

(i) in paragraph (a), by deleting “and”,

(ii) in paragraph (b), by substituting “section 44(a)(v), and” for “section 44(a)(v).”, and

(iii) by inserting the following after paragraph (b):

“(c) notwithstanding anything contained in the rules of a relevant scheme, may assume that the liabilities of the scheme in respect of index-linked benefits on winding up in respect of any persons who are receiving benefits or have reached normal pensionable age are equal to the actuarial value of benefits with fixed rate increases where those fixed rate increases are calculated in accordance with any applicable guidance issued by the Society of Actuaries in Ireland in relation to the preparation of actuarial funding certificates in accordance with section 42.”,

and

(d) in section 48 (inserted by the Pensions (Amendment) Act 2002 ), by inserting the following after subsection (3):

“(3A) In purchasing an annuity in substitution for an index-linked benefit in a relevant scheme which has been wound up or in making a payment or payments under subsection (3), the trustees of a scheme which does not have sufficient resources to discharge all of the liabilities of the scheme for benefits specified in subparagraphs (i), (ii) and (iii) of subsection (1)(b) may, notwithstanding anything contained in the rules of the scheme and without the consent of the member concerned, discharge the liability of the scheme for an index-linked benefit by purchasing an annuity with fixed rate increases or deem the actuarial value of an index-linked benefit to be equal to the actuarial value of a benefit with fixed rate increases, provided that such fixed rate increases are calculated in accordance with any applicable guidance issued by the Society of Actuaries in Ireland in relation to the preparation of actuarial funding certificates in accordance with section 42.

(3B) If the liabilities of a scheme for index-linked benefits are reduced under subsection (3A) any resources which remain in the scheme after discharging the liabilities of the scheme for all benefits specified in subparagraphs (i), (ii) and (iii) of subsection (1)(b) shall be applied in increasing the benefits payable to and in respect of those persons specified in subparagraph (ii) of subsection (1)(b) who were entitled to index-linked benefits under the rules of the scheme at the date of the winding up.”.

Review of actuarial work.

42 .— The following section is inserted after section 51 of the Principal Act:

“Review of actuarial work.

51A.— (1) The Minister may make regulations requiring any actuary appointed to a scheme to have his or her actuarial work in relation to the scheme reviewed for compliance with this Act and any regulations made under this Act.

(2) The review under subsection (1) shall be carried out in accordance with professional guidance issued by the Society of Actuaries in Ireland for that purpose or with any applicable guidance issued by any other person (including the Minister) and specified in the regulations.

(3) The professional guidance issued by the Society of Actuaries in Ireland or any other guidance referred to in subsection (2) shall include provisions relating to prescribed matters which matters may include but not necessarily be limited to the following:

(a) the appointment of a reviewing actuary;

(b) the frequency of reviews;

(c) the timescale for reviews.

(4) Any information relating to the scheme that is required for the purposes of the review in accordance with subsection (1) shall be made available by the actuary to the scheme to the person conducting the review.

(5) In this section ‘actuarial work’ means:

(a) actuarial valuation reports prepared by an actuary in accordance with section 56;

(b) actuarial funding certificates prepared by an actuary in accordance with section 42;

(c) funding proposals certified by an actuary in accordance with section 49, and

(d) annual statements made by an actuary in accordance with section 55.”.

Functions of Pensions Ombudsman.

43 .— Section 131 of the Principal Act is amended by substituting the following for subsection (6):

“(6) (a) The Pensions Ombudsman shall not investigate or determine a complaint or dispute unless the procedures referred to in section 132 have been resorted to and exhausted in accordance with their terms.

(b) Notwithstanding paragraph (a), the Pensions Ombudsman may investigate or determine a complaint or dispute not relating to a public authority scheme or to a statutory scheme to which section 776 of the Taxes Consolidation Act 1997 applies provided he is satisfied that—

(i) the complaint or dispute is of such a nature that the operation of the procedures referred to in paragraph (a) is inappropriate in the circumstances of the case, and

(ii) it is reasonable in the circumstances that he should investigate and determine the complaint or dispute.

(6A) In this section ‘public authority scheme’ has the same meaning as in the Pensions Ombudsman Regulations 2003 (S.I. No. 397 of 2003).”.

Miscellaneous amendments to Principal Act.

44 .— Each provision of the Principal Act mentioned in column (2) of Schedule 8 to this Act is amended in the manner specified in column (3) of that Schedule opposite the mention of that provision in column (2).