26 July 2024
The Court of Appeal yesterday upheld the High Court’s conclusion in the Virgin Media case that, based on the relevant legislation at the time, a written actuarial confirmation was required where an alteration to a scheme’s rules affected pension benefits attributable to past or future service benefits relating to section 9(2B) contracted-out rights. Without such a confirmation, an amendment would be void.
Tom Jackman, partner, Sackers, comments:
“This greatly anticipated appeal ultimately considered a single limited issue: whether the words “section 9(2B) rights” and the requirement for a written actuarial confirmation applied to both past and future service rights. Like the High Court judgment before it, this decision isn’t particularly surprising and it doesn’t create any “new risks” for pensions schemes, but the case has brought the question of historic Section 37 compliance to the fore. The really important question is: what evidence might be sufficient to demonstrate that a compliant actuarial confirmation was, in fact, provided? That question wasn’t considered in this case, and the legislation isn’t prescriptive about the form of the written confirmation, so there is still considerable uncertainty.”
“All eyes will now be on the DWP to see whether it will exercise its power to make regulations to validate changes that are impacted by this issue. Trustees and sponsors will need to think about whether it is appropriate to take any action in the meantime, based on the particular circumstances of their scheme.”
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