Pensions Authority
Guidance Determinations by the Pensions Authority under Sections 38, 53, 58,
64(A) and 81G of the Pensions Act, 1990
GUIDANCE NOTES
Disclaimer
While the Pensions Authority has made every effort to ensure that the information
contained within this guidance document is correct and accurate nevertheless it is
possible that errors or omissions in the content may occur from time to time.
No liability whatsoever is accepted by the Pensions Authority, its servants or agents for
any errors or omissions in the information or data or for any loss or damage occasioned to
any person acting or refraining from acting as a result of the information or data
contained within this guidance document.
To ensure that you have an up-to-date and unaltered copy of this document, you should
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Last updated: October 2005
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CONTENTS
Paragraph
General 1
Predetermination Procedure
Persons entitled to apply for a determination 2
Request for further information 3
Notice to any person concerned of the application for a
determination 4-5
Representations 6
Procedure – Determination
Determination may be made without or after an oral hearing 7
Determination without an oral hearing 8
Oral hearing 9
Notice of oral hearing 10
Attendance at hearing 11
Procedure at hearing 12-14
Notification of determination by Authority after oral hearing 15
Failure to attend an oral hearing 16
Expenses 17
Appeal to the High Court on a point of law 18
Last updated: October 2005
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Determinations by the Pensions Authority under Sections 38, 53, 58,
64(A) and 81G of the Pensions Act, 1990
General
1. Provision is made, under the Pensions Act, 1990, for the Pensions
Authority to issue formal determinations in respect of certain questions
specified in the Act. These questions include matters such as
whether a scheme is a defined benefit scheme or a defined
contribution scheme for the purposes of a specified Part of the Act,
whether any provision of a specified Part of the Act conflicts with
any rule of a scheme.
A question to be determined by the Authority under the Act must be
determined by it either, in its absolute discretion, without or after an oral
hearing by the Authority (or such member or members of the Authority (or
other person or persons as the Authority may authorise for that purpose).
Determinations are made by the Authority under the Act solely for the
purposes of the relevant Part(s) of the Act and are without prejudice to any
claims that members may have to have their benefits dealt with in any
particular way.
While reference is made throughout the following paragraphs to the
Authority, it should be noted that the Authority has authorised the Chief
Executive to perform the Authority’s function of determining any question
which falls to be determined by the Authority under the Act and deciding,
under Section 26 of the Act, whether an oral hearing is to be held in any
case and the person or persons by whom it is to be held.
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Predetermination Procedure
Persons entitled to apply for a determination
2. The following categories of person are entitled to make an
application (which must be made in writing) for a determination:
the trustees of the scheme;
any employer of persons in relevant employment to which the
scheme applies;
any member or prospective member of the scheme;
an agent to the scheme;
an authorised trade union representing a member or members of
the scheme;
such other persons as the Minister may prescribe.
Request for further information
3. The Authority may, following receipt of the application, ask the applicant
to clarify any matter or furnish any further documentation/information, as
appropriate.
Notice to any person concerned of the application for a determination.
4. Notice that an application for a determination has been made to the
Authority will be given to any other person who appears to be concerned.
The persons likely to be notified by the Authority are those listed in
paragraph 2 who, on the facts of the case, the Authority is aware ought to
be notified.
5. Where possible, notice will be given by post (by pre-paid registered
letter). If notification by post is not practicable the Authority may place a
notice in a daily newspaper published in and circulating throughout the
State notifying persons concerned that an application for a determination
has been received by the Authority.
s.38 (3)
a.10
S.I.445/92
Last updated: October 2005
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6.
Representations
s.26(1)(b) Any person concerned may make representations to the Authority and the
Authority, in reaching its determination, will take into account any such
representations made.
s.26(2) Representations must be made in writing or, if an oral hearing is being
held, at the hearing.
Procedure — Determination
s.26(1)(a) 7. Determination may be made without or after an oral hearing.
As soon as may be after all appropriate enquiries and notifications have
been made and representations considered, the Authority will decide, on
the facts of the case, whether or not an oral hearing is to be held. While the
Pensions Act gives the Authority absolute discretion in deciding whether
an oral hearing is to be held in any case, in practice, the decision will be
made having regard of the rules of natural justice, in particular, the
question of whether it is necessary to hold an oral hearing in order to
resolve a conflict of evidence in relation to any matter essential to the
determination.
s.26(1)(b)
8.
Determination without an oral hearing
If a decision is made to determine the matter without an oral hearing, the
matter will be determined by the Authority on the basis of the information
and representations furnished in respect of the application.
The Authority’s determination will be communicated, in writing, to the
applicant, to any other person concerned who has made representations in
connection with the application and to any other person as determined by
the Authority.
9.
Oral hearing
If a decision is made to determine the matter after an oral hearing, the
Authority will either hold a hearing or appoint a Tribunal to hold a
hearing.
10. Notice of oral hearing
S. The Authority/Tribunal will, as soon as may be, fix a time, date and place
for the hearing and give notice of the hearing, not less than 21 days before
the hearing, to
(a) the applicant;
(b) any other person concerned who has made a representation
in writing to the Authority under the Act in connection with
the question to be determined by it and
s.26(1)(a)
a.3
S.I. 77/97
a.4
S.I. 77/97
Last updated: October 2005
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(c) any person (other than a person specified in (a) or (b)
above) whom the Authority or the tribunal requires to
attend to give evidence at the hearing in connection with
the question to be determined.
The Authority or the tribunal may require any of the persons specified at
(a), (b) and (c) above to produce at the hearing any documents in his/her
possession, custody, control or procurement relating to the question to be
determined.
A notice given under this paragraph may be given either by delivering it to
that person or by sending it by post in a prepaid registered letter to the
person at the address at which he/she ordinarily resides.
11.
Attendance at hearing
The applicant for a determination must, unless otherwise determined by
the Authority or the tribunal on application to it by the applicant in writing,
appear at the hearing in person and may be accompanied by any other
person with the consent of the Authority or the tribunal. Any other person
who has been notified of the hearing by the Authority or the tribunal may
appear at the hearing.
Any person required to appear at the hearing may, with the prior consent
of the Authority or the tribunal, be represented at the hearing by any other
person including a legal representative.
a.6 S.I.77/97 12. Procedure at hearing
The procedure at the hearing will be such as the Authority or the tribunal
may determine.
The hearing or any part of it, may take place in public or in private, as
determined by the Authority or the tribunal.
The Authority or the tribunal may
proceed with the hearing notwithstanding that any person specified in
paragraph 10 (a), (b) or (c) above has failed to attend the hearing
postpone or adjourn the hearing
admit any document or other material it may consider to be
appropriate to the question for determination.
A record of the proceedings at the hearing will be made by such person
and in such manner as the Authority or the Tribunal may authorise for the
purpose.
a.4(2)
S.I. 77/97
a.2
S.I. 77/97
a.5
S.I. 77/97
Last updated: October 2005
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s.26(3) 13. The Authority or the tribunal may take evidence on oath and for that
purpose may administer oaths to persons attending as witnesses at the
hearing.
a.7 S.I. 77/97 14. The Authority may determine any question referred to it notwithstanding
the failure or neglect of the applicant or any other person to comply with
any requirement of S.I. 77 of 1997.
Notification of determination by Authority after oral hearing
a.8 S.I. 77/97
15. A written notice of a determination by the Authority will be sent as soon as
may be to the persons specified at (a) and (b) of paragraph 10 and to any
other person as determined by the Authority.
Failure to attend an oral hearing
s.26(4)(c) 16. A person to whom a notice requiring his/her attendance or production of
documents has been given and who refuses to give evidence or gives false
evidence at an oral hearing or refuses or wilfully fails to produce any
document to which the notice relates at such a hearing shall be guilty of an
offence under the Act.
Expenses
s.26(5) 17. The Authority or the tribunal may order a person concerned to pay to any
other person concerned a reasonable sum in respect of expenses
occasioned by the person in relation to the hearing.
Appeal to the High Court on a point of law
18. An appeal to the High Court on a point of law from a determination of the
Authority may be made by the person who made or a person who was entitled
under the Act to make the application concerned.