Enforcement

Powers of Enforcement

The Authority may investigate the conduct and activities of a registered administrator and require a registered administrator, its officers and employees to furnish the Authority with such information, explanations, books of account and other documents as are required.

The Authority may audit the administration services. The Authority may require a registered administrator to furnish information to it relating to their conduct and activities as administrators. Registered administrators may be required to provide information in relation to specific schemes and trust RACs.

The Authority may apply sanctions and ultimately cancel the registration if the required standards are met. The offences regime under the Pensions Act applies to registered administrators. Registered administrators are subject to on-the-spot fines regime.  A registered administrator may not rely on a defence that it has entered into an outsourcing arrangement with a third party which has failed to perform the service for the registered administrator.


Register

Administrators must register with the Pension Board/Authority. Administrators are regulated in relation to the core functions that they perform on behalf of trustees of pension schemes. A register of administrators to be kept by the Pensions Authority.

A person must be registered as a registered administrator before acting in that capacity to a scheme or trust RAC (other than a small trust RAC). An application form must be completed and submitted to the Authority by a person intending to provide core administration functions to trustees. The Authority will notify the applicant in writing of its decision and of the reasons for its decision.

An application for renewal of registration must be completed and submitted to the Authority by the registered administrator not less than 30 days prior to the end of each registration year. This time limit can be extended at the discretion of  the Authority where it considers the extension is appropriate having regard to the circumstances of the relevant application. The Authority may decide not to renew the registration or renew it subject to restrictions.


Termination of Appointment

Certain persons are disqualified from acting as a registered administrator. When a registered administrator becomes disqualified from acting in that capacity, he or she shall notify the Authority and the scheme trustees immediately. A person who has previously been a registered administrator and whose registration was terminated may not apply again for registration within 12 months from the time of termination.

Registered administrators are responsible for discharging their obligations under the Pensions Act. In order to prevent registered administrators from withdrawing services to trustees at short notice, 90-days’ notice of termination of an administration services agreement is required for both trustees and registered administrators.

The Authority may terminate the registration of a registered administrator where the administrator has requested the termination, has failed to comply with requirements under the Act, has not complied with a restriction imposed by the Authority or is disqualified from acting as such.

Where registration has been refused, has not been renewed, has been terminated or has been made subject to conditions, the registered administrator may within 21 days (or such longer period as the High Court decides to be reasonable having regard to the circumstances of the particular case) from the date of notification of the above decision appeal to the High Court against the making of the decision to which the notification relates.


Registration Matters

A registered administrator must provide an address to the Authority in the State which is entered on the register of administrators by the Authority. Where certain offences have been committed under the Act outside the State, they are deemed to have been committed in the State, and any relevant proceedings may be taken in any place in the State.

Where the Authority terminates the registration of the registered administrator, decides not to renew its registration or decides to renew its registration subject to one or more restrictions, it must publish notice of this fact in Iris Oifigiuil and in one or more newspapers circulating in the State within 28 days of such termination, non-renewal or renewal subject to conditions.

Where a registered administrator has received a notification from the Authority, it is obliged to notify the relevant trustees of the scheme or trust RAC of the notice and its contents. In the case of termination or non-renewal, the registered administrator is obliged, without undue delay or in any case not more than two months from the date of such notification, to arrange for the transfer of all information relating to the scheme or trust RAC to the new registered administrator nominated by the relevant trustees.

Registration does not imply that the registered administrator is approved for the provision of administration services. No liability attaches to the Authority. Where the Authority either terminates a registration or decides not to renew it, its decision shall not operate to discharge any liabilities of a person who has acted as a registered administrator.


Disclosure compliance

The Pensions Authority, in its regulatory role, monitors trustees, who must account to members for how their scheme is run by providing them with a wide range of personal and scheme information as required by the Pensions Act.

The disclosure of information in a timely manner enables scheme members to monitor their benefits and the financial soundness of their pension schemes. The Authority regards information disclosure as a very important governance requirement for pension schemes and takes steps to enforce this obligation where necessary.


Audit Process

The Authority’s process of auditing occupational pension schemes is the responsibility of the Enforcement team and involves the issuing of a written request to the trustee(s) of a scheme to furnish to the Authority copies of the documentation that must be provided or made available to members of their scheme. The Authority then audits the documentation received against the detailed requirements of the legislation to gauge the level of compliance. Generally, any areas of non-compliance which are identified are notified to the trustees in order that they are rectified in future preparations of the documentation, however; where the non-compliance is of a serious nature or there is evidence that there has been a history of non-compliance, the Authority will consider the initiation of prosecution proceedings against the trustees.

The Authority gives particular priority to monitoring whether documents are prepared within statutory deadlines and are provided or notified to the relevant persons within the timeframes specified in the legislation.

The Authority also treats non-response to its requests for information, made pursuant to the Pensions Act, as a very serious matter.


Prosecutions

While it is the policy of the Authority to achieve compliance, where possible, by co-operation, the cases taken demonstrate that the Authority pursues breaches through the Courts where necessary.

Court proceedings may be taken against trustees for non-compliance with the Pensions Act. The Pensions Authority may bring a case to the District Court or, for more serious allegations, refer the matter to the Director of Public Prosecutions (DPP), who may want to prosecute in a higher Court by way of a charge sheet (called an indictment).

The consequences are as follows:

On summary conviction (in the District Court), persons found guilty of an offence under the Act will get a fine not exceeding €5,000, imprisonment for up to one year or both. n on indictment in a higher Court, persons convicted of a breach of the Act will get a fine not exceeding €25,000, imprisonment for up to two years or both.

However, on-the-spot fines provide an alternative to prosecutions of certain offences under the Pensions Act. The Act allows the Pensions Authority to notify a person in writing about a specified summary offence, giving 21 days to remedy it and pay the appropriate fine. If the offence is remedied and the fine paid, the prosecution will not proceed.


Offences

Where-

  • a trustee in his capacity as trustee,
  • an employer,
  • a PRSA provider,
  • an actuary or auditor of a scheme or a PRSA or an auditor of a trust RAC in his capacity as such actuary or auditor,
  • a person who is required under regulations made under section 5A to carry out any of the duties imposed upon trustees by the Pensions Act or by any regulations thereunder, in his capacity as such a person,
  • a registered administrator, or
  • any other person,

contravenes a provision of the Pensions Act or a regulation under it, he is guilty of an offence.

Where a person of whom a requirement is made by the Pensions Ombudsman fails to comply with that requirement, he is guilty of an offence.


Defences

In a prosecution for the above offences, it is a defence for the accused person to prove that the contravention to which the offence relates was attributable to:

  • a contravention by one or more other persons of a provision of the Pensions Act or a regulation thereunder and that he took such reasonable steps (if any) in the circumstances as were open to him to secure the compliance of the person or persons aforesaid with the provision concerned, or
  • a failure by an actuary, auditor or other person to prepare a document which the accused person had instructed the actuary, auditor or other person to prepare and that the accused person took such reasonable steps (if any) in the circumstances as were open to him to secure the preparation of the said document by the actuary, auditor or other such person

The above defence is not available to a registered administrator in respect of the failure by another person to perform any process, service, or activity outsourced to that person by the registered administrator.

Where in any report, certificate or other document required for the purposes of any provision of the Pensions Act or regulations thereunder, a person makes a statement which is, to his knowledge, false or misleading in any material particular, he is guilty of an offence.


Victimisation

Where an employee is dismissed from, an employment solely or mainly because, in good faith, the employee-

  • notified the Authority of an alleged breach of the Pensions Act (with some limited exceptions),
  • made to the Authority a report of any matter concerning the state and conduct of a scheme, trust RAC or PRSA, (with some limited exceptions),
  • gave evidence in any proceedings under the Pensions Act, (with some limited exceptions)
  • gave notice to his employer of his intention to do any of the above

the employer is guilty of an offence.


Orders on Conviction

On conviction of an employer for an offence under this section, the Court may, if it thinks fit and the dismissed employee is present or represented in court and consents.

  • order the re-instatement by the employer of the dismissed person in the position which that person held immediately before the dismissal on the terms and conditions on which that person was employed immediately before that dismissal, together with a term that the re-instatement is deemed to have commenced on the day of the dismissal,
  • order the re-engagement by the employer of the dismissed person either in the position which that person held immediately before the dismissal or in a different position which would be reasonably suitable for that person on such terms and conditions as are reasonable having regard to all the circumstances, or
  • impose on the employer, in addition to any fine imposed under subsection (3), a fine not exceeding the amount which, in the opinion of the Court, the dismissed person would have received from the employer concerned by way of remuneration if the dismissal had not occurred:

The above amount shall not exceed, if the conviction was a summary conviction, an amount which together with the fine imposed) does not exceed €3,500. If the conviction was on indictment, an amount equal to 104 weeks’ remuneration of the dismissed person.

The amount of a fine imposed above is paid to the employee concerned.


Appeal

Without prejudice to any right of appeal by any other person, the employee concerned may appeal against the amount of the fine, either (as the case may be) to the High Court or to the judge of the Circuit Court in whose circuit the district court district (or any part thereof) of the judge of the District Court by whom the fine was imposed is situated, and the decision on such an appeal is final.

Proof of the payment by an employer of a fine imposed under paragraph (a) is a defence to any civil action brought against him or application made under any enactment by the employee concerned in respect of the remuneration referred to in subparagraph (iii) of that paragraph.


Penalties

A person guilty of the above offences are is liable-

  • on summary conviction to a fine not exceeding €5,000 or imprisonment for a term not exceeding one year, or to both, or
  • on conviction on indictment to a fine not exceeding €25,000 or imprisonment for a term not exceeding 2 years, or to both.

A person guilty of an offence under the Pensions Act relating to non-remission of contributions he is liable-

  • on summary conviction to a fine not exceeding €5,000 or imprisonment for a term not exceeding one year, or to both, or
  • on conviction on indictment to a fine not exceeding €25,000 or imprisonment for a term not exceeding 5 years, or to both.

Criminal Proceedings

Where an offence under the Pensions Act is committed by a body corporate and is proved to have been so committed with the consent or connivance of or to be attributable to any neglect on the part of any person, being a director, manager, secretary or other officer of the body corporate, or a person who was purporting to act in such capacity, that person shall, as well as the body corporate, be guilty of an offence and is liable to be proceeded against and punished as if he were guilty of the first-mentioned offence.

Summary proceedings for an offence under the Pensions Act may be commenced at any time within 2 years from the date on which the offence was committed, or    at any time within 6 months from the date on which evidence sufficient in the opinion of the Authority or Pensions Ombudsman, as the case may be, to justify initiating the proceedings, comes to the Authority’s or Pensions Ombudsman’s knowledge, not being later than 5 years from the date on which the offence concerned was committed.

A fine imposed under this section shall not be paid out of the resources of any scheme or trust RAC or out of the assets of any PRSA, as the case may be.


On the Spot Fine

Where the Authority has reasonable grounds for believing that a person has committed certain Pension Act offences and is liable to summary prosecution by the Authority, the Authority may give to the person a notice in writing in the prescribed form stating that

  • the person is alleged to have committed that offence,
  • the person may during a period of 21 days beginning on the date of the notice remedy as far as practicable to the satisfaction of the Authority any default that constitutes the offence, make to the Authority a specified payment of a prescribed amount accompanied by the notice, and
  • 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 Authority and the payment specified in the notice is made during that period, no prosecution in respect of the alleged offence will be instituted.

The provision for administrative fines applies to certain listed offences only.

Where an administrative fine notice is given, the person to whom it applies may, during the period specified, make to the Authority the payment specified in the notice, accompanied by the notice. In this case, a prosecution in respect of the alleged offence shall not be instituted in the period specified in the notice.  If the default is remedied to the satisfaction of the Authority and the payment specified in the notice is made during that period, no prosecution in respect of the alleged offence is instituted.

The onus of showing that a payment pursuant to a notice has been made lies on the defendant.


Exchange of information

Information held by the Pensions Authority or the Pensions Ombudsman for the purposes of the Pensions Act may be transferred by the Authority or the Pensions Ombudsman, as the case may be, to the Revenue Commissioners. Information held by the Revenue Commissioners relating to occupational pension schemes, trust RACs and PRSAs may be transferred by the Revenue Commissioners to the Authority or to the Pensions Ombudsman.

The Authority and every other supervisory authority established in the State may exchange among themselves all information which is necessary to enable the Authority and each such authority to perform effectively their respective functions of a supervisory nature.

The Authority may disclose information relating to occupational pension schemes, trust Retirement Annuity Contracts and Personal Retirement Savings Accounts to a supervisory authority established outside the State for the purpose of enabling or assisting the performance by that authority of functions corresponding to those of the Authority under the Pensions Act.


Court Orders to Enforce

The Court may, on application to it by the Authority, make an order directing an employer to pay arrears of contributions to a scheme.  The Court may make an order if it is satisfied     that any contributions payable to the scheme by that employer on his own account have become due and remain unpaid, or that any contributions payable to the scheme by a member of the scheme have been deducted by that employer from the pay of the member but have not been paid to the scheme.

If on application to it by the Authority, the Court is satisfied that any of the resources of a scheme or trust RAC have been wrongfully paid or transferred to any person, and that such payment or transfer is likely to jeopardise the rights and interests of the members under the scheme or trust RAC, the Court may order such person, and any other person who the Court is satisfied was knowingly concerned in the wrongful payment or transfer, to take such steps as the Court may direct for restoring the resources of the scheme or trust RAC to the level at which they would have been if such wrongful payment or transfer had not been made.

The Court may, on application to it by the Authority, make an order directing the trustees of a scheme or trust RAC to dispose of any investment held for the purposes of the scheme.   The Court may make such an order when it is satisfied that the retention of the investment is likely to jeopardise the rights and interests under the scheme or trust RAC of the members of the scheme or trust RAC.

When the Court makes such an order it may by that order, or by a further order, direct the trustees, and any other person who the Court is satisfied was knowingly concerned in the investment, to take such steps as the Court may direct for restoring the resources of the scheme or trust RAC to the level at which they would have been if the investment had not been made.

The latter order shall not be made unless the Court is satisfied that the investment was not made bona fide in the interests of the members of the scheme or trust RAC and that the person against whom the order is to be made was aware of this or ought reasonably to have been aware of this.


Injunctions

If, on application to it by the Authority, the Court is satisfied that there is a reasonable likelihood that a particular person will do any act which constitutes a misuse or misappropriation of any of the resources of a scheme or trust RAC and that such misuse or misappropriation is likely to jeopardise the rights and interests under the scheme or trust RAC, of the members of the scheme or trust RAC, the Court may grant an injunction restraining him from doing so.

If, on application to it by the Authority, the Court is satisfied that there is a reasonable likelihood that any of the resources of the scheme or trust RAC will be invested in a manner which is likely to jeopardise the rights and interests under the scheme or trust RAC, of the members of the scheme or trust RAC, the Court may grant an injunction prohibiting such investment.

If, on application to it by the Authority, the Court is satisfied that the state and conduct of a scheme or trust RAC are being investigated by or on behalf of the Authority and that the order hereinafter mentioned is desirable to ensure that the rights and interests under the scheme or trust RAC, of the members of the scheme or trust RAC, are not jeopardised pending the outcome of such investigation, the Court may grant an injunction prohibiting any person from disposing of, selling, pledging, charging or otherwise dealing with any of the resources of the scheme or trust RAC.

If, on application to it by the Authority, the Court is satisfied   that the Authority has received a request from the competent authority of another Member for assistance in prohibiting the free disposal of assets of an institution for occupational retirement provision registered or authorised in that Member State and which are held by a custodian or depositary in the State, and     that the request is appropriate and necessary to prevent or remedy any irregularities prejudicial to the interests of members and beneficiaries, the Court may grant an injunction restraining any person from disposing of or otherwise dealing with the assets to which the application refers.

If the Court grants an injunction under the above powers, it may by order make provision for such ancillary and consequential matters as it considers necessary or expedient to enable the competent authority that made the request to perform any of its functions in relation to the assets to which the injunction applies.


Compulsory and voluntary reporting to the Board

The following persons are obliged to disclose of the misappropriation and misapplication of, the resources of a scheme to the Pensions Authority

In relation to a scheme, trust RAC or PRSA, a person who-

  • is an auditor of the scheme or trust RAC,
  • is an actuary of the scheme or trust RAC,
  • is a trustee of the scheme or trust RAC,
  • is an administrator, investment manager or custodian of the PRSA,
  • is a registered administrator,
  • is an insurance intermediary  in relation to the scheme or trust RAC, or
  • is an investment business firm

The Obligation applies where  he

  • has advised on the scheme, trust RAC or PRSA, or
  • has received any payment in relation to the investment of any of the resources of the scheme, trust RAC or PRSA, or
  • has been instructed to prepare, or who has prepared, an annual report of the scheme or trust RAC  in accordance with section 55, or
  • has been appointed by the trustees of the scheme or trust RAC, to carry out, or who is carrying out, any of the duties of the trustees of the scheme or trust RAC

The obligation also apples where he

  • is the PRSA provider, or
  • is a PRSA actuary, or
  • is an auditor of the business of a PRSA provider, or
  • is an employee of an employer who is obliged to make a deduction.

Obligation to Disclose I

Where the person has reasonable cause to believe that a material misappropriation or a fraudulent conversion of the resources of a scheme, trust RAC or PRSA in relation to to which he is a relevant person has occurred, is occurring or is to be attempted, that person shall, as soon as practicable, give to the Board a report in writing of the particulars of the misappropriation or conversion, as the case may be.

The obligation s does not apply to any belief formed as a result of information obtained-

  • in the case of a scheme, before 2 July 1996,
  • in the case of a PRSA, before 7 November 2002,
  • in the case of a trust RAC, before 27 April 2007,
  • by a registered administrator before the commencement of section 27 of the Social Welfare and Pensions Act 2008.

Where a person makes a report, whether in writing or otherwise, in good faith to the Board of any matter concerning the state and conduct of scheme or trust RAC or the state of a PRSA, whether or not that person is a relevant person and whether or not the report is required to be made, no duty to which the person may be subject is regarded as contravened and no liability or action shall lie against the person in any court for so doing.


Obligation to Disclose II

Where a relevant person has reason to believe that a PRSA provider has carried on activities in relation to PRSA products otherwise than in accordance with the Act, that person shall, as soon as is practicable, give to the Board a report in writing of the particulars of such activities.

Where a relevant person has reason to believe that a PRSA provider has not operated a custodian account in accordance with the requirements of the Act that person shall, as soon as practicable, report the matter in writing to the Board.

Where a relevant person has reason to believe that an employer has failed or is failing to comply with the remission of contributions obligation, that person shall, as soon as is practicable, give to the Board a report in writing of the particulars of such failure.


Obligation to Disclose III

Where a relevant person knows that an employer has failed to remit one or more contributions on behalf of that employer’s employees to the relevant person, that person shall, as soon as is practicable, give to the Board a report in writing of the particulars of such failure and shall also inform the relevant PRSA contributor or contributors of the failure.

Any relevant person may of his own volition report to the Board in relation to the operation and performance of any PRSA product to which he is a relevant person and the Minister may, by regulations, prescribe the format of such a report and the conditions subject to which it may be made.

Every relevant person shall, at such intervals and subject to such conditions as may be prescribed, make reports to the Board in the prescribed format in respect of any PRSA for which he bears any responsibility.

Where a relevant person has reason to believe that his employer has failed or is failing to comply with the remission of contributions obligations, that person may of his own volition report such failure to the Board.


Offences of Non-Reporting

A relevant person is guilty of an offence if the person-

  • fails to comply with his above obligations, or
  • knowingly or wilfully makes a report which is incorrect.

Where a relevant person is found guilty of an offence under this section the person is liable-

  • on summary conviction to a fine not exceeding €5,000 or to imprisonment for a term not exceeding one year, or to both,
  • on conviction on indictment to a fine not exceeding €25,000 or to imprisonment for a term not exceeding two years, or to both.

Defences to Non-Reporting

In a prosecution for the above offence it is a defence for the accused to show that the contravention to which the offence relates was attributable to another person failing to comply with the obligation and that the accused took such reasonable steps in the circumstances as were open to him to secure the compliance of that other person with that subsection.

In a prosecution for the above offence in relation to a failure to comply with the above obligation it is a defence for the accused to show that he was, in the ordinary scope of professional engagement as a barrister or solicitor, assisting or advising in the preparation of legal proceedings and would not have had reasonable cause to believe that a material misappropriation or a fraudulent conversion of the resources of the scheme, trust RAC or PRSA had taken place if he had not been so assisting or advising.

A fine imposed under this section shall not be paid out of the resources of any scheme or trust RAC or out of the assets of any PRSA, as the case may be.