There has been a lot of hot air expended and I fear a lot of money spent by trustees, scheme managers, lawyers and actuaries working out whether a DB pension scheme is invalidly changing things because it failed to do the red tape around contracting the best part of ten years ago.
In a nutshell, the case confirmed that where such schemes amended their rules, but failed to obtain an actuarial confirmation where required by Section 37 of the Pension Schemes Act 1993 and Regulation 42 of the Occupational Pension Schemes (Contracting-out) Regulations 1996, the amendment was invalid and void.
Since the case, many schemes have been waiting for news on whether the Government would act to regularise the position. On 5 June 2025, the Government confirmed that it would introduce legislation to allow affected schemes retrospectively to obtain written actuarial confirmation that historic benefit changes met the necessary standards. This legislation has now been introduced by a series of amendments to the Pension Schemes Bill.
The Pension Schemes Bill is going to include a way for schemes who didn’t bother with the actuarial red-tape around contacting out the scheme of the second state pension to take remedial position. Here’s Linklaters
In a nutshell, the case confirmed that where such schemes amended their rules, but failed to obtain an actuarial confirmation where required by Section 37 of the Pension Schemes Act 1993 and Regulation 42 of the Occupational Pension Schemes (Contracting-out) Regulations 1996, the amendment was invalid and void. You can read more about the case in our earlier client alert.
Since the case, many schemes have been waiting for news on whether the Government would act to regularise the position. On 5 June 2025, the Government confirmed that it would introduce legislation to allow affected schemes retrospectively to obtain written actuarial confirmation that historic benefit changes met the necessary standards. This legislation has now been introduced by a series of amendments to the Pension Schemes Bill.
So this is the way out for pension schemes on the naughty step
They’ll be off the naughty steps if they follow their processes and provided the Bill turns to Act.
What was all the fuss about? Well of course if there hadn’t been all this legal fuss and worry, we wouldn’t have the one major amendment to the Pension Schemes Bill. There are a few more but very minor, all of the amendments to the Bill from other parties other than that in Government have not been accepted.
So far so good and perhaps we’ll have a little less moaning from the lawyers, a little less pressure on actuaries ; oh and pension scheme managers doing other things than worry about having Virgins… For now we have
Draft legislation which aims to give schemes affected by the Virgin Media decision the ability retrospectively to obtain actuarial confirmation
The hiatus created by the Virgin Media case may have given pension schemes and employers the opportunity to reassess whether a buy-out is really the best lowest risk “end game” for the particular scheme.
If the employer has to write a cheque to meet the annuity purchase price, is it really in the employer’s interest to lose the benefit of those additional assets when they could retain both the existing scheme assets and the further contributions from both the employer and employees for the purpose they were originally paid, namely directly and solely providing future pension benefits to past, present and future employees? In other words re-opening DB accrual with a future benefit level they can afford and control.
There have also been significant changes in the risk profiles of the BPA insurers since the initial judgement.
For the sake of the British economy and particularly the financial viability of the employer, lets hope the opportunity to re-assess previous plans is not ignored.
I don’t think many “buy-outs” are happening Oldie! I think schemes have been staying open because they don’t have a way of dealing with not having a contracting out certificate, and if it’s not that – it’s GMP equalisation or some oddity or otherwise. The net result is that the scheme stays with assets bought out by insurers who are inside but not taking over the admin or the scheme’s responsibility. This means the scheme is still a liability to the employer and all the “players” from trustees to lawyers can continue to submit bills. Maybe Virgin Media’s resolution will speed up “buy ins to buy outs” but I’m not sure!
Thanks Pension Oldie, I will think about this as I’m sure will other readers