Power & Duties
Pensions Act
59.
General duties of trustees of schemes.
(1) Without prejudice to the duties of trustees generally and in addition to complying with the other requirements of this Act, the duties of trustees of schemes and trust RACs shall include the following:
(a) to ensure, in so far as is reasonable, that the contributions payable by the employer and the members of the scheme, where appropriate, are received and that the sums referred to in subsection (1) or (2) of section 58A are invested in accordance with paragraph (b) within 10 days of the latest date on which those sums should have been remitted or paid by the employer under subsection (1) or (2), as the case may be, of section 58A;
(aa) to ensure that the contributions to a trust RAC are invested in accordance with paragraph (b) within 10 days of the end of the month in which those contributions are received;
(b) to provide for the proper investment of the resources of the scheme or trust RAC in accordance with section 59AB and, subject to that section, and subsection (2), in accordance with the rules of the scheme or trust RAC;
(c) where appropriate, to make arrangements for the payment of the benefits as provided for under the rules of the scheme or trust RAC as they become due, whether in the State or in any other Member State, net of any taxes and transaction charges which may be applicable;
(ca) to undertake trustee training in accordance with section 59AA,
(d) to ensure that proper membership and financial records are kept;
(e) if the scheme is wound up, to apply the resources of the scheme in discharging its liabilities without undue delay in accordance with the rules of the scheme and, where applicable, with section 48;
(f) to ensure that at all times there is a registered administrator appointed in compliance with subsection (1AA).
(1A) [deleted]
(1AA) The trustees of a scheme or trust RAC may appoint different registered administrators to perform the duties specified, respectively, in paragraphs (a) and (b) of section 64G(1), together, in the case of each of those registered administrators, with the duty specified in paragraph (c) insofar as that duty relates to whichever of the first-mentioned duties that administrator is appointed to perform, but, subject to subsection (1AC), must not appoint more than one registered administrator to perform any one of the first-mentioned duties.
(1AB) A person who –
(a) on the day immediately before the date of commencement of section 27 of the Social Welfare and Pensions Act 2008, was retained by the trustees of a scheme or trust RAC to perform on behalf of the trustees any of the duties specified in section 64G(1) under an arrangement having effect as between the parties beyond that day, and
(b) with effect from the date of that commencement, is a registered administrator,
is to be taken, for the purposes of this Part and Part VIA, to have been appointed, in pursuance of the requirements of this Part, to perform the duties to which the arrangement relates.
(1AC) Where, on the day immediately before the date of commencement of section 27 of the Social Welfare and Pensions Act 2008, more than one person was retained by the trustees of a scheme or trust RAC to perform on behalf of the trustees the duty specified in paragraph (a) or (b) of section 64G(1) under an arrangement having effect as between the parties beyond that day, the Board may, in its absolute discretion and subject to such conditions as it sees fit, allow more than one registered administrator to be appointed by those trustees in respect of that duty.
(1B) Trustees of a scheme or trust RAC shall, subject to subsection (1C) –
(a) prepare and maintain a written statement of the investment policy principles applied to the resources of the scheme or trust RAC,
(b) review the statement at least every 3 years, and
(c) revise the statement at any time following any significant change in investment policy which
is inconsistent with the statement.
(1C) The statement referred in subsection (1B) shall include the prescribed matters and shall be prepared and maintained in the form and manner that may be prescribed.
(1D) A member or a beneficiary, or the Pensions Authority, may request a copy of the statement referred to in subsection (1B).
(1E) The trustees of a scheme or trust RAC shall make the statement referred to in subsection (1B) available on request and without prejudice to the generality of the foregoing, following a request under subsection (1D), shall provide that statement –
(a) in the case of a request by a member or beneficiary, not later than 4 weeks from the date on which the request was made, or
(b) in the case of a request made by the Pensions Authority, within such time as the Pensions Authority may specify.
(2) Where, and to the extent that, the rules of a scheme provide for the trustees to invest the resources of the scheme in accordance with directions given by the members –
(a) the trustees shall –
(i) determine in accordance with the rules what different types of investments of those resources could be made at the direction of the members;
(ii) determine in accordance with the rules how those resources are to be invested in cases where the members give no direction;
(iii) in such circumstances and within such time limits as may be prescribed, furnish to the members such information as may be prescribed in relation to the determinations made by them in relation to the matters referred to in subparagraphs (i) and (ii), and
(iv) take such steps as are reasonable to ensure that the members have any further information necessary to enable the members to make informed decisions with regard to the giving of directions in relation to the different types of investment referred to in subparagraph (i),
and
(b) where the trustees comply with the requirements of paragraph (a), they shall incur no liability solely by reason of giving effect to the directions of the members given in accordance with the rules.
(3) The trustees of a scheme may, at any time, notwithstanding anything contained in the rules of the scheme and without the consent of the members –
(a) make one or more payments on behalf of the scheme to a policy or contract of assurance certified by the Board under section 53B whereby all sums payable under such policy or contract will as and when received by the trustees, be held by them upon trust for the purposes of the scheme,
(b) discharge the liability of the scheme for some or all of the benefits payable to or in respect of a person –
(i) receiving benefits under the scheme, or
(ii) who has reached normal pensionable age,
by making on behalf of that person, one or more than one payment to a policy or contract of assurance certified by the Board under section 53B.
(4) If, in any proceedings brought against a trustee of a scheme for breach of trust in relation to the performance by him or her of a function conferred under subsection (3), it appears to the court hearing the case that the trustee is or may be liable in respect of the breach of trust but that he or she acted honestly and reasonably and that having regard to all of the circumstances of the case he or she ought fairly to be excused for the breach of trust, the court may relieve him or her in whole or in part from his or her liability on such terms as the court deems appropriate.
(5) Notwithstanding the amendment of this section by the European Union (Occupational Pension Schemes)
Regulations 2021, the trustees of a small trust RAC established before the coming into operation of those Regulations shall comply with section 59(1)(f) not later than 31 December 2021.
59A.
Qualifications of trustees.
(1) A person shall not act as a trustee of a scheme or trust RAC unless the person –
(a) is, having regard to section 64AE, of good repute and integrity,
(b) has the qualifications and knowledge which, together with the qualifications and knowledge of the other trustees, are collectively adequate to enable all the trustees of the scheme or trust RAC to ensure the sound and prudent management of that scheme or trust RAC, and
(c) has experience which, together with the experience of the other trustees, is collectively adequate having regard to the requirement in subsection (1A), to enable all the trustees to ensure the sound and prudent management of that scheme or trust RAC.
(1A) At least one of the trustees of the scheme or trust RAC shall have not less than 2 years’ experience as a trustee of a scheme or trust RAC within the immediately preceding 3 years which is of a type that is adequate for him or her to ensure the sound and prudent management of that scheme or trust RAC.
(1B) Where¸ as referred to in section 64AC(2), a body corporate is appointed as the sole trustee of a scheme or trust RAC –
(a) each of the directors of that body corporate shall be, having regard to section 64AE, of good repute and integrity,
(b) the directors of that body corporate shall have the qualifications, knowledge and, subject to paragraph (c), experience which, together with the qualifications, knowledge and experience of the other directors, are collectively adequate to enable them to ensure the sound and prudent management of that scheme or trust RAC, and
(c) at least one of the directors who effectively run the scheme or trust RAC shall have, within the immediately preceding 3 years, not less than 2 years’ experience as a trustee or as a director of a body corporate appointed as trustee of a scheme or trust RAC, which is of a type that is adequate for him or her to ensure the sound and prudent management of the scheme or trust RAC.
(2) Regulations shall –
(a) provide that trustees of a scheme or trust RAC shall possess, or employ or enter into arrangements with advisers who possess, the qualifications and experience specified in those regulations, and
(b) specify-
(i) the circumstances in which trustees will be regarded as possessing the specified qualifications and experience referred to in paragraph (a), and
(ii) the manner in which trustees may satisfy the Board that they have employed or entered into arrangements with advisers who possess the qualifications and experience referred to in paragraph (a).
(3) Any question as to whether a trustee or a person proposing to act as trustee satisfies the requirements of this section shall be determined by the Board –
(a) on its own initiative for the purpose of carrying out its supervisory functions under this Act, or
(b) at the request in writing of the trustee or person to whom the question relates.
(4) For the purpose of making a determination under subsection (3), the Board may by giving notice in writing in that behalf require any trustee of a scheme or trust RAC or any other person to submit to it the information that may be prescribed in the form and manner and within the time that may be prescribed.
(5) The Board shall notify in writing the trustee or person to whom the question relates of its determination and of its reasons for the determination.
(6) No claim shall lie against the Board arising directly or indirectly from any determination of the Board under this section.
(7) Subject to subsection (9), a person to whom a determination under subsection (3) relates may appeal to the High Court from the determination on a point of law within 21 days after the date of the notification of
the determination to the person under subsection (5).
(8) In the case of a person who is a trustee of a scheme or trust RAC, a determination by the Board under subsection (3) that the person does not satisfy the requirements of this section shall have the effect of removing that person as trustee but without prejudice to the validity of any acts done by the trustee before removal under this section.
(9)
(a) A trustee in respect of whom a determination is made under subsection (3) that the trustee does not satisfy the requirements of this section may, within 21 days after the date of the notification under subsection (5) (or such longer period as the High Court may fix, being a period that, having regard to the circumstances of any particular case, the court considers to be reasonable), appeal to the High Court against the making of the determination to which the notification relates.
(b) On an appeal under this subsection the High Court may make such order confirming, annulling or varying the determination concerned and such order as to costs as it thinks fit.
(c) The Board, the trustees, the employer and the members of the scheme or trust RAC concerned shall be entitled to be represented and heard on any appeal under this subsection.
(d) A determination under this section shall not come into operation –
(i) during the period of 21 days after the date of the notification under subsection (5), or
(ii) if an appeal against the determination is brought during the period referred to in subparagraph (i), before the final determination of the appeal or any appeal from such determination or the withdrawal of either such appeal.
(10) In the case of a person who is a trustee of a scheme or trust RAC, a determination by the Board under subsection (3) shall not operate as a discharge of any liabilities of that person.
59AA.
Trustee training.
(1) An employer who operates a scheme or trust RAC shall arrange for the trustees of that scheme or trust RAC (and, in the case of a trustee which is a body corporate, for all the directors of that body corporate) to receive appropriate training in relation to –
(a) this Act, the regulations made under it and any other law of general application governing the operation of that scheme or trust RAC,
(b) the duties and responsibilities of trustees generally, and
(c) such other matters relevant to the effective management of a scheme or trust RAC, as the case requires, as are prescribed.
(2) An employer to whom subsection (1) applies shall arrange training –
(a) for a person for whom the relevant date is not earlier than the date of commencement of section 28 of the Social Welfare and Pensions Act 2008, within six months from the relevant date and every two years thereafter, and
(b) for a person for whom the relevant date is earlier than the date of commencement of section 28 of the Social Welfare and Pensions Act 2008, within two years from the date of that commencement and every two years thereafter.
(2A) For the purposes of subsection (2), the relevant date is –
(a) in relation to a trustee who is a natural person – the date of appointment of the person as a trustee of the scheme or trust RAC concerned,
(b) in relation to a director of a body corporate that becomes a trustee of the scheme or trust RAC concerned – the date of appointment of the body corporate as a trustee of that scheme or trust RAC, and
(c) in relation to a person who becomes a director of a body corporate that is a trustee of the scheme or trust RAC – the date of appointment of the person as a director of that body corporate.
(3) An employer is not required to arrange appropriate training for –
(a) a pensioneer trustee, or
(b) a professional trustee.
59AB.
Investment rules
(1) The trustees of a scheme or trust RAC shall invest in accordance with the prudent person rule (within the meaning of the Directive of 2016) and without prejudice to the generality of the foregoing shall invest in accordance with this section.
(2) When investing, the trustees of a scheme or trust RAC –
(a) shall invest the resources of the scheme or trust RAC in the best long term interests of members and beneficiaries as a whole, and in the case of a potential conflict of interest, shall ensure that the investment is made in the sole interest of members and beneficiaries,
(b) in accordance with the prudent person rule referred to in subsection (1), may take into account the potential long-term impact of investment decisions on environmental, social and governance factors,
(c) shall invest the resources of the scheme or trust RAC in such a manner as to ensure the security, quality, liquidity and profitability of the portfolio as a whole,
(d) shall invest the resources of the scheme or trust RAC predominantly in regulated markets and, where there is investment in assets which are not admitted to trading on a regulated financial market, shall keep any such investment to prudent levels,
(e) shall comply with subsection (3) if investing in derivative instruments,
(f) shall invest in such a manner that the resources shall be properly diversified in such a way as to avoid excessive reliance on any particular asset, issuer or group of undertakings and accumulations of risk in the portfolio as a whole,
(g) for the purposes of paragraph (f), where they invest in assets issued by the same issuer or by issuers belonging to the same group, shall invest in a manner that shall not expose the scheme or trust RAC to excessive risk concentration,
(h) if they have invested in the employer, shall not invest more than 5% of the resources of the scheme as a whole and, where the employer belongs to a group, they shall not invest more than 10% of those resources in the undertakings belonging to the same group as the employer, and
(i) for the purposes of paragraph (h), shall, where a scheme is sponsored by a number of employers, invest in those employers prudently and shall take into account the need for proper diversification.
(3) In the case of investment in derivative instruments referred to in subsection (2)(e) and for the purposes, by the trustees of a scheme or trust RAC, of such investment, such investment by trustees of a scheme or trust RAC shall be possible insofar as such instruments contribute to a reduction in investment risks or facilitate efficient portfolio management and –
(a) they shall be valued on a prudent basis, taking into account the underlying asset,
(b) they shall be included in the valuation of the assets of the scheme or trust RAC, and
(c) the trustees shall avoid excessive risk exposure to a single counterparty and to other derivative operations.
(4) The Pensions Authority shall –
(a) monitor the adequacy of the credit assessment processes of schemes, and
(b) assess the use of references to credit ratings issued by credit rating agencies as defined in point (b) of Article 3(1) of Regulation (EC) No. 1060/2009 of the European Parliament and of the Council [OJ No. L302, 17.11.2009, p.1], in their investment policies and, where appropriate encourage mitigation of the impact of such references, with a view to reducing sole and mechanistic reliance on such credit ratings.
(5) For the purposes of subsection (2) –
(a) investment in a collective investment undertaking shall be treated as being invested in a regulated market in accordance with subsection (2)(d) and diversified in accordance with subsection (2)(f) to the extent that the investments held by that undertaking are themselves
so invested,
(b) investment in an insurance policy falling within the class of insurance specified at paragraph III of Annex II of Directive 2009/138/EC of the European Parliament and of the Council [OJ No. L 335, 17.12.2009, p.1] shall be treated as invested on a regulated market in accordance with subsection (2)(d) and diversified in accordance with subsection (2)(f) to the extent that the selection, by the trustees referred to in subsection (2), of the investments by which the return on the insurance policy will be determined complies with those subsections,
(c) investment in an insurance policy the terms of which provide that the proceeds of the insurance policy at maturity will be equal to or greater than the amount of the investment over the term of the insurance policy, shall be treated as invested on a regulated market in accordance with subsection (2)(d) and diversified in accordance with subsection (2)(f),
(d) investment in an insurance policy of a type to which Article 2(3)(a)(ii) of Directive 2009/138/EC of the European Parliament and of the Council relates shall be treated as invested on a regulated market in accordance with subsection (2)(d) and diversified in accordance with subsection (2)(f), and
(e) investment in bonds issued by the government of any Member State shall be treated as diversified in accordance with subsection (2)(f).
(6) Subsection (2)(d) applies in respect of the proportion of the assets of the scheme or trust RAC attributable to each individual member of the scheme or trust RAC in the same manner as they apply to the assets of the scheme or trust RAC as a whole.
(7) For the purposes of subsection (4) and the monitoring by the Pensions Authority referred to in that subsection, the trustees of a scheme shall –
(a) notify the Pensions Authority, in such form as the Pensions Authority may specify, where all or part of the resources of the scheme are directly invested in debt instruments, excluding investments in collective investment undertakings and investments in an insurance policy, and
(b) on request by the Pensions Authority, furnish it with all relevant information on the credit assessment process applied by a scheme.
(8) For the purposes of subsection (2)(h) and (2)(i) and subject to subsection (9), in the case of a scheme investment of all or part of the resources of the scheme in the employer or, where the employer belongs to a group, that group, such investment –
(a) shall be deemed to include investment in –
(i) property, other than land or buildings, which is used for the purpose of any business carried on by the employer, or as the case may be, that group,
(ii) loans to the employer or as the case may be, that group,
(iii) moneys due to the scheme held by the employer or as the case may be, that group, or
(iv) shares or other securities issued by a person in that group, and
(b) shall not include –
(i) investment in a cash deposit with any person in that group who, in accordance with, or pursuant to, any enactment, is an authorised deposit taking institution, or
(ii) investment in –
(I) an insurance policy or contract of assurance issued by a person in that group who is the holder of an authorisation within the meaning of Article 2 of the European Communities (Life Assurance) Framework Regulations 1994 (S.I. No. 360 of 1994),
(II) a segregated fund or a managed fund, or other collective investment fund, managed by a person in that group who is the holder of an authorisation issued by the Central Bank of Ireland pursuant to –
(A) the Investment Intermediaries Act 1995,
(B) the European Union (Markets in Financial Instruments)
Regulations 2017 (S.I. No. 375 of 2017), or
(C) any other enactment,
(III) a unit trust scheme authorised by the Central Bank of Ireland under the Unit Trusts Act 1990 and managed by a person in that group,
(IV) an investment company authorised by the Central Bank of Ireland under Part 24 of the Companies Act 2014,
(V) a collective investment scheme authorised by the Central Bank of Ireland under the European Communities (Undertakings for Collective Investment in Transferable Securities) Regulations 2011 (S.I. No. 352 of 2011),
(VI) an undertaking for collective investment in transferable securities authorised by a competent authority in another Member State in accordance with Council Directive 2009/65/EC5 of the European Parliament and of the Council, or
(VII) bonds issued by the government of any Member State.
(9) For the purposes of subsection (8)(a), a reference to ‘investment’ shall be deemed to include the proportion attributable to the resources of the scheme (whether directly or through any intervening fund) of any investment in the group referred to in that subsection –
(a) by the manager of –
(i) a segregated fund,
(ii) a managed fund,
(iii) any other collective investment fund,
(iv) a unit trust scheme,
(v) an investment company, or
(vi) a collective investment scheme, or
(b) which is comprised in an investment fund to which an insurance policy or contract of assurance falling within Class III or Class VII of the classes of insurance specified in Annex I to the European Communities (Life Assurance) Framework Regulations, 1994 is connected.
(10) In this section –
‘collective investment undertaking’ means –
(a) an investment undertaking within the meaning assigned to it by section 739B of the Taxes Consolidation Act 1997,
(b) a unit trust which neither is, nor is deemed to be, an authorised unit trust scheme within the meaning of the Unit Trust Act 1990,
(c) an undertaking for collective investment in transferable securities within the meaning assigned to it by Directive 2009/65/EC of the European Parliament and of the Council of 13 July 2009, situate in any Member State,
(d) a common contractual fund within the meaning of section 739I(1)(a)(i) of the Taxes Consolidation Act 1997, or
(e) an alternative investment fund within the meaning assigned to it by Directive 2011/61/EU of the European Parliament and of the Council of 8 June 2011 [OJ No. L 174, 1.07.2011, p. 1], situated in any Member State;
‘insurance policy’ means an insurance policy or contract of assurance issued by any person who is the holder of an authorisation –
(a) granted by the Central Bank of Ireland under the European Union (Insurance and Reinsurance) Regulations 2015 (S.I. No. 485 of 2015), or
(b) granted by the authority charged with the duty of supervising the activities of insurance undertakings in a Member State other than the State in accordance with Directive 2009/138/EC of the European Parliament and of the Council of 25 November 2009.
(11) This section shall not apply in respect of investments made by the trustees of a one-member arrangement before the coming into operation of the European Union (Occupational Pension Schemes) Regulations 2021.
59B.
Reduction of benefit.
(1) Subject to subsections (2) and (2A), notwithstanding anything in the rules of a scheme, where a benefit provided for under the rules is payable in the form of an annual pension and such benefit has commenced, the trustees of the scheme shall not reduce the amount of the benefit payable to such person in any subsequent year below the amount of benefit payable in the preceding year.
(2) The trustees of a scheme may reduce the amount of a benefit to which a person is in receipt under the scheme –
(a)
(i) where the benefit has been determined without taking into account a pension payable to the person and where the rules of the scheme permit the subsequent reduction of the benefit by taking into account such pension at or after the date at which that pension commences to be payable to the person, or
(ii) where such benefit has been determined taking into account a pension payable to the person where such pension is less than the full personal rate of old age (contributory) pension then payable and where the rules of the scheme permit the subsequent reduction of the benefit by taking into account the full personal rate of old age (contributory) pension or retirement pension at or after the date at which that full rate of old age (contributory) pension or retirement pension commences to be payable to the person,
(b) where the rules of the scheme permit –
(i) the conversion into a capital sum of part of the benefit,
(ii) a pension payable to a dependant in return for a surrender of part of the benefit,
(iii) forfeiture of or the exercise of a lien on the benefit not prohibited by section 36 of this Act,
(iv) a reduction of the benefit as a consequence of dependency ceasing,
(v) a reduction or cessation of the benefit prior to normal pensionable age where the member had retired prior to that age on account of ill-health and subsequently recovers, or
(vi) a reduction of the benefit as a consequence of the exercise of an option by the member,
or
(c) where the reduction is required to comply with other provisions of this Act.
(2A) Subsection (1) shall not apply in relation to a scheme where a direction has been made under section 50(1B).
(3) In subsection (2) –
‘old age (contributory) pension’ means old age (contributory) pension under Part II of the Social Welfare (Consolidation) Act, 1993;
‘pension’ means –
(a) disablement pension,
(b) death benefit under sections 60, 61 or 62,
(c) old age (contributory) pension,
(d) retirement pension,
(e) invalidity pension,
(ea) surviving civil partner’s (contributory) pension,
(f) widow’s (contributory) pension, or
(g) widower’s (contributory) pension,
under Part II of the Social Welfare (Consolidation) Act, 1993;
‘retirement pension’ means retirement pension under Part II of the Social Welfare (Consolidation) Act, 1993.
(4) Where the Minister considers that it would be unreasonable, having regard to their nature and character, and would be contrary to the interests of their members, to require specified schemes or categories of schemes to comply fully with specified provisions of this section, he may by regulations made with the consent of the Minister for Public Expenditure and Reform provide that those provisions shall apply in relation to those schemes or categories of schemes with specified modifications, being modifications that, in the opinion of the Minister, are reasonable and do not materially alter those provisions.
(1) In this section –
59C.
Increases to pensions in payment.
“integrated pension”
means a scheme pension, the calculation of the amount of which involves a State pension offset;
“scheme pension”
means a pension payable under an occupational pension scheme;
“State pension” means –
(a) disablement pension,
(b) death benefit under section 60, 61 or 62,
(c) old age (contributory) pension,
(d) retirement pension,
(e) invalidity pension,
(ea) surviving civil partner’s (contributory) pension,
(f) widow’s (contributory) pension, or
(g) widower’s (contributory) pension,
under Part II of the Social Welfare (Consolidation) Act, 1993; “State pension offset”
in relation to the calculation of a scheme pension, means a deduction or offset, the amount of which depends on the amount of a State pension;
“updated State pension offset”
in relation to the calculation of an increase to a scheme pension after its commencement, means a State pension offset, the amount of which depends on the amount of a State pension at, or during a period up to, the date the increase to the scheme pension is calculated or made.
(2) Where the trustees of a scheme increase an integrated pension at any time after it has commenced, notwithstanding the rules of the scheme they shall not calculate the increase by reference to an updated State pension offset.
(3) Where, but for subsection (2), the trustees of a scheme would calculate an increase to an integrated pension by reference to an updated State pension offset, notwithstanding the rules of the scheme they shall instead calculate the increase by:
(a) calculating the amount of the scheme pension which would notionally be payable immediately before the increase if the amount of the State pension offset had at all times been nil;
(b) calculating the percentage by which the scheme pension, as so calculated, would be increased if the amount of the State pension offset continued to be nil; and
(c) increasing the scheme pension actually in payment by that percentage.
59D.
Duties of trustees on winding-up of scheme.
Regulations may provide that, in relation to a scheme which is wound up on or after the commencement of section 43 of the Pensions (Amendment) Act, 2002, –
(a) the trustees shall, within such period and in such manner as may be prescribed, notify such persons as may be prescribed of the winding-up of the scheme,
(b) the trustees shall, in the course of applying the resources of the scheme in consequence of the winding- up, provide such information to such persons in such circumstances as may be prescribed, and
(c) neither the trustees nor any employer to whose employment the scheme relates, shall exercise any discretion –
(i) as to the payment of any of the resources of the scheme to any such employer, or
(ii) as to the abatement of benefits in case of an insufficiency of resources,
unless the members have first been afforded such opportunity as may be prescribed to make observations to the trustees or the employer, as may be appropriate, and unless the trustees or employer (as the case may be) have given due consideration to such observations.
59E. Duties of trustees in connection with bulk transfer.
(1) In this section, “bulk transfer” means the transfer by the trustees of a scheme of an amount of money or other resources in discharge of their liability under the scheme to provide benefits in respect of a group of members –
(a) to the trustees of another scheme or schemes where either –
(i) the scheme under which the transfer is made and the scheme under which the transfer is received apply to employment with the same employer, or
(ii) the scheme under which the transfer is made and the scheme under which the transfer is received apply to employment with different employers, and
(I) the transfer is made in consequence of a financial transaction between the employers, or
(II) one of the employers is a subsidiary (within the meaning of section 155 of the Companies Act, 1963) of the other, or both are subsidiaries of the same company, or
(b) to Personal Retirement Savings Accounts where either –
(i) the person, being the employer to whose employment the scheme under which the transfer is made relates (“the first-mentioned employer”), will contribute to those accounts, or
(ii) an employer, other than the first-mentioned employer, will contribute to those accounts, and
(I) the transfer is made in consequence of a financial transaction between that employer and the first-mentioned employer, or
(II) one of those two employers is a subsidiary (within the meaning of section 155 of the Companies Act, 1963) of the other, or both are subsidiaries of the same company.
(2) Regulations may provide that, before any bulk transfer is effected –
(a) the trustees of the scheme under which the bulk transfer is to be made shall provide such information to such persons in such circumstances as may be prescribed,
(b) in cases where the consent of the members in respect of whom the transfer is to be effected is not to be obtained, such persons as may be prescribed shall be afforded such opportunity as may be prescribed to make observations to the trustees of the scheme under which the bulk transfer is to be made or to any employer to whose employment the scheme applies, and the trustees or the employer, as the case may be, shall give due consideration to such observations,
(c) the trustees of the scheme under which the bulk transfer is to be made shall ensure that such other conditions as may be prescribed have been satisfied, and
(d) the trustees of a scheme under which the bulk transfer is to be received shall provide such information to such persons in such circumstances as may be prescribed.
59F.
Invalidity of amendments to scheme rules and of exercises of discretion in certain circumstances.
(1) This section shall apply to –
(a) any amendment to the rules of a scheme, and
(b) any exercise of any discretionary power under a scheme,
which has the effect of augmenting the benefit of any member or members so as materially to alter the balance of interests between the members, or between the members and the employer or employers (other than an amendment or exercise made or done pursuant to section 50) which is made or done –
(i) within twelve months before or six months after –
(I) the making of a bulk transfer within the meaning of section 59E,
(II) the making of an agreement or arrangement relating to or connected with the sale of all or part of the business or interests of a person, being the employer of any employees who are members of the scheme,
(III) the making of an agreement or arrangement relating to or connected with the purchase by a person, being the employer of any employees who are members of the scheme, of all or part of the business or interests of another person or persons, where, pursuant to that purchase, the trustees or the said employer propose or are required to take any action in relation to the scheme, or
(IV) the making of any amendment to the rules of the scheme which would cause the scheme or any part of it to become a defined contribution scheme,
or
(ii) within twelve months before, or at any time after, the winding-up of the scheme.
(2) Regulations may provide that any amendment of rules, or any exercise of a power to which this section applies shall be invalid unless –
(a) the members affected by the amendment have consented in writing to the amendment,
(b) the actuary has provided a certificate to the trustees containing such statements by the actuary in respect of such matters as may be prescribed,
(c) the trustees are satisfied that the changes effected by such amendment or exercise were not effected with a view to altering materially the balance of interests under the scheme between members or groups of members, or between members and the employer or employers, by reason only of the fact that the bulk transfer, arrangements or agreement or winding-up had taken place or were to take place, as the case may be, or
(d) such other conditions as may be prescribed are satisfied.
(3) No legal proceedings shall lie against a person by reason only of anything which that person has done or omitted to do in reliance in good faith on an amendment of rules or exercise of a power rendered invalid by virtue of regulations under subsection (2).
(4) No person who receives any money under a scheme in reliance in good faith on an amendment of rules or exercise of a power rendered invalid by virtue of regulations under subsection (2) shall be required to repay such money.
59G.
Trustee consent for early retirement.
In the case of a defined benefit scheme the rules of which include an early retirement rule, notwithstanding the terms of that rule –
(a) if the actuary advises the trustees that he or she is reasonably satisfied that if the actuary were to prepare an actuarial funding certificate under section 42 having an effective date of the day on which any member’s immediate retirement benefit by virtue of that early retirement rule is expected to commence, the actuary would not certify that the scheme satisfies the funding standard provided for in section 44(1), or
(b) on or after 1 January 2016, if the actuary advises the trustees that he or she is reasonably satisfied that if the actuary were to prepare a funding standard reserve certificate under section 42 having an effective date of the day on which any member’s immediate retirement benefit by virtue of that early retirement rule is expected to commence, the actuary would not certify that the scheme satisfies the funding standard reserve provided for in section 44(2),
the member’s right to the immediate retirement benefit by virtue of that early retirement rule is subject to the consent of the trustees of the scheme.
59H.
Power to amend scheme rules in certain circumstances
(1) Notwithstanding anything in this Act or any other enactment or any rule of law or the rules of a scheme –
(a) where the trustees of a scheme are permitted to reduce the amount of a benefit in accordance with section 59B(2)(a), they may make such amendments to the rules of the scheme as they consider appropriate to permit the reduction of the benefit payable to a person who reaches the age of 65 years on or after 1 January 2014 as if the State pension (contributory) commenced to be payable to that person from the age of 65 years, and
(b) where the trustees of a scheme are required by the rules of the scheme to pay an integrated pension calculated by reference to the State pension (contributory) payable from the age of 65 years to a person who reaches the age of 65 years on or after 1 January 2014, they may make such amendments to the rules of the scheme as they consider appropriate to permit the application of the State pension offset in respect of that person by reference to a notional amount as if the State pension (contributory) had commenced to be payable to that person from the age of 65 years.
(2) In subsection (1) –
‘integrated pension’ has the meaning assigned to it by section 59C;
‘State pension (contributory)’ means the State pension (contributory) under Part 2 of the Social Welfare Consolidation Act 2005;
‘State pension offset’ has the meaning assigned to it by section 59C.
60.
Duty to register scheme.
(1) Subject to the following subsections, it shall be the duty of trustees of a scheme or trust RAC to ensure that the scheme or trust RAC is registered with the Board.
(2) A scheme shall be registered not later than –
(a) in case the scheme commenced before the commencement of this section, one year after such commencement,
(b) in any other case, one year after the commencement of the scheme. (2A) A trust RAC shall be registered not later than—
(a) in case the trust RAC commenced before the commencement of Part 1 of Schedule 2 to the Social Welfare and Pensions Act 2007, one year after such commencement,
(b) in any other case, one year after the commencement of the trust RAC.
(3) It shall be the duty of the trustees of a scheme or trust RAC to provide the Board, in such a manner as may be prescribed, with such information as may be prescribed for the purposes of this section.
61. Restriction of Perpetual Funds (Registration) Act, 1993.
(1) Sections 7, 8, 10, 12(2), and, in so far as it relates to those sections, section 14 of the Perpetual Funds (Registration) Act, 1933 shall not apply in the case of a scheme.
(2) The validity or effect of any alteration in the rules of a scheme shall not be affected by the failure to register such alteration in the Register of Perpetual Funds notwithstanding any provision in the rules of the scheme requiring such registration.
61A.
Rule against perpetuities.
(1) The rules of law and equity relating to perpetuities, inalienability and accumulations and the provisions of the Accumulations Act, 1892, shall not apply and shall be deemed never to have applied to any trust to which this section applies.
(2) Subject to subsection (3), this section shall apply to –
(a) any trust which as created had or subsequently has as its main purpose the provision of relevant benefits within the meaning of section 13(1) of the Finance Act, 1972, and which is capable of receiving approval under Chapter II of Part I of that Act, and
(b) any trust which is also an occupational pension scheme notwithstanding that it may cease to be an occupational pension scheme.
(3) This section shall not apply to any trust the resources of which have, whether in whole or in part, been returned before the passing of the Pensions (Amendment) Act, 1996, by reason of the rules or provisions referred to in subsection (1).
(4) The persons (if any) having the power to amend a trust to which this section applies may amend the said trust so as to dispense with any limitations on the duration of the said trust the purpose of which is to ensure compliance with the rules or provisions referred to in subsection (1), notwithstanding any provision of the said trust to the contrary.
61B.
Restriction on borrowing.
(1) Notwithstanding anything in the rules of the scheme or trust RAC and subject to regulations under subsection (2), trustees of a scheme or trust RAC may neither borrow money nor act as a guarantor on behalf of a third party.
(2) Subject to the Directive, regulations may provide that in the circumstances and subject to the conditions and restrictions that may be prescribed, trustees of a scheme or trust RAC may borrow money.
(3) This section shall not apply in respect of borrowing arrangements entered into by the trustees of a one- member arrangement before the coming into operation of the European Union (Occupational Pension Schemes) Regulations 2021.
62. Selection by members of funded schemes of persons for appointment as trustees.
(1) The Minister, subject to section 59A shall provide by regulations, in respect of schemes having not less than a specified number of members, that the members of any such scheme may select, or approve of the selection by the employer concerned, of a person or a specified number of persons who shall be appointed to be a trustee or trustees of the scheme (or who shall be retained as such trustee or trustees, as the case may be).
(2) Regulations under this section –
(a) shall determine the circumstances in which a person, or category of persons, who, having been admitted to membership of the scheme and remaining entitled to any benefit under the scheme, is or are to be regarded for the purpose of this section as being a member or members of the scheme,
(b) may specify the manner in which the selection, or the approval of the selection by the employer concerned, of a person or persons for appointment or retention as a trustee or trustees by members of schemes, for the purpose of subsection (1), shall be made, and
(c) may make such other provision as the Minister considers necessary or expedient for the purpose of this section and for enabling it to have full effect.
(3) Notwithstanding anything in subsection (1), regulations under that subsection may provide that they shall not apply to multi-employer schemes or to specified multi-employer schemes or classes of such scheme.