Jurisdiction(s):
United Kingdom

Auto-enrolment UCNs and penalties: non-receipt as reasonable excuse, rebutting presumed service and out-of-time reviews—A&P Trading Solutions v The Pensions Regulator [2023] UKFTT 772 (GRC)

Published on: 11 October 2023

Published by a LexisNexis Pensions expert

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Auto-enrolment and penalty notices—a reasonable excuse for non-compliance? (A&P Trading Solutions v Pensions Regulator)

A&P Trading Solutions Ltd v Pensions Regulator [2023] UKFTT 772 (GRC) What are the practical implications of this case?

Under section 44 of the Pensions Act 2008 (PA 2008), an employer may appeal to the FTT against a determination of the Pensions Regulator issuing an unpaid contributions notice (UCN), a fixed penalty notice, or an escalating penalty notice. In theory, an employer can advance a reasonable excuse for failing to comply with a UCN, which could result in penalty notices being set aside. In reality, attempts to overturn such notices almost always fail. In this matter, the reference relied on the oft-raised contention of reasonable excuse arising from non-receipt of the relevant correspondence. Such submissions must be assessed in light of the facts that (i) regulation 15(4)(c) of the Employers’ Duties (Registration and Compliance) Regulations 2010, SI 2010/5, provides a statutory presumption that a notice reached its intended recipient, and (ii) while that presumption is capable of being rebutted, it cannot be displaced by bare assertion alone, nor by unparticularised claims of non-delivery, however emphatically or repeatedly they might be put forward by an employer...

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