Key Facts
- •A & P Trading Solutions Limited (Appellant) appealed against a £400 fixed penalty notice and an escalating penalty notice from The Pensions Regulator (Respondent) for failing to comply with an unpaid contributions notice (UCN).
- •The UCN was sent to the Appellant's registered office address, which was easily confused with a nearby unoccupied flat.
- •The Appellant claimed non-receipt of the notices due to address confusion.
- •The Regulator argued the Tribunal lacked jurisdiction because the Appellant's review requests were out of time, relying on the presumption of service.
- •The late payment report was resolved by the pension scheme provider on 10 January 2023.
Legal Principles
Presumption of service of notices sent to a company's registered office.
Pensions Act 2004, section 303(6)(a); Pensions Act 2008, section 144A; Employers' Duties (Registration and Compliance) Regulations 2010, Regulation 15(4).
The presumption of service is rebuttable; a mere assertion of non-receipt is insufficient.
London Borough of Southwark v (1) Runa Akhter & (2) Stel LLC [2017] UKUT 0150; Philip Freeman Mobile Welders Ltd v The Pensions Regulator [2022] UKUT 62 (AAC).
Tribunal jurisdiction to consider penalty notices requires a completed review under section 43 or a refusal to review under section 43(1)(a).
Pensions Act 2008, section 44.
The Tribunal can consider 'reasonable excuse' for non-compliance.
Pensions Regulator v Strathmore Medical Practice [2018] UKUT 104 (AAC).
The Tribunal must determine the appropriate action for the Regulator, even if the original decision was within the range of reasonable decisions.
In the Matter of the Bonas Group Pension Scheme [2011] UKUT B 33 (TCC).
Outcomes
Appeals allowed.
The Tribunal found the Appellant had a reasonable excuse for non-compliance with the UCN because they did not receive it due to address confusion. The Regulator's refusal to review the penalties was deemed incorrect as the notices were not received within the relevant timeframe.