CBox Black Water Limited v The Pensions Regulator

1. This is a reference against a fixed penalty notice (“FPN”) issued under section 40 of the Pensions Act 2008 (“the Act”) and Escalating Penalty Notice (“EPN”) under section 41 of the Act by the Pensions Regulator (“the Regulator”). The Regulator has invited the Tribunal to strike out the reference under Rule 8(2)(a). This is on the basis that the Tribunal does not have jurisdiction because no review has been undertaken by the Regulator.

2. Under Rule 8(2) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009, the Tribunal “must strike out the whole or a part of the proceedings if the Tribunal – (a) does not have jurisdiction in relation to the proceedings or that part of them; and (b) does not exercise its power under rule 5(3)(k)(i) (transfer to another court or tribunal) in relation to the proceedings or that part of them”

3. Under section 43(1) of the Pensions Act 2008, the Regulator may review a fixed penalty and escalating penalty notice, “(a) on the written application of the person to whom the notice was issued, or (b) if the Regulator otherwise considers it appropriate”. The prescribed period for a written application for a review under section 43(1)(a) is 28 days from the date of the notice.

4. Under section 44 of the Pensions Act 2008, a person can make a reference to the Tribunal in respect of the issue or amount of a penalty notice. The conditions are that the Regulator has completed a review under section 43, or “the person to whom the notice was issued has made an application for the review of the notice under section 43(1)(a) and the Regulator has determined not to carry out such a review” (section 44(2)(b).

5. I have considered the background information provided by both parties.

6. The Regulator issued the Appellant with a Compliance Notice on 30 March 2023, an FPN on 18 May 2023 and an EPN on 19 June 2023. The Appellant requested a review of the FPN and EPN on 19 March 2025. The Respondent declined to conduct a review because it had been received outside the 28-day time frame for doing so and was outside the 18-month period to conduct a review on its own initiative.

7. The Appellant made a reference by way of form GRC1 which was dated 2 May 2025. Its grounds for appeal gave the following reasons why the decision was wrong. “1. As the company had significant percentage of employees from overseas, it was verbally stated by the employees that none of them wanted to be part of pension scheme due to the visa status. 2.Most of the employees are below 10,000 per annum. (p60 attached for every income tax year since incorporation. 3.We never received any letters from Pension regulator due to wrong physical address stored in Pension regulator data base, this has led to non compliance as a start-up business the directors were not aware about this regulation which has led to this noncompliance which was not intentional. 4.As a matter of fact we have enrolled all employees to nest pension from 1.04.2025,subsequently all have opted out.”

8. Following a hardship application, the Regulator agreed on 23 May 2025 that it would only pursue £500 of the £5000 accrued and the Appellant agreed to a payment plan to cover this.

9. On 24 September 2025, the Appellant filed a completed Pensions: Right to Appeal form which ticked the box stating that an application for review had been sent within 28 days of the date on which the notice was issued. It gave the following further explanation: “As per email dated 20th may from the pension regulator. We accepted to pay the penalty of £900 towards the settlement of this matter. As a matter of fact we paid £400.00 on 29.05.2025 and then monthly instalments of £100 pcm was paid on 30.06.2025-31.07.2025 and 31.08.2025 subsequently. We are perplexed why we received this notice when both the parties agreed to the payment plan.”

10. The Regulator says that the Tribunal does not have jurisdiction to deal with the reference because the conditions in section 44(2) of the Pensions Act 2008 are not met. The Regulator refers to the decision in Mosaic Community Centre Limited v Pensions Regulator (PEN/2015/0004) as showing that the Tribunal only has jurisdiction when a review under section 43 has been undertaken by the Regulator. The Regulator says there was no review in this case. There was also no refusal to carry out a review within the meaning of section 44(2) because the Appellant had not requested a review in the prescribed 28-day period which is set down in Regulation 15(1) of the Employers’ Duties (Registration and Compliance) Regulations 2010 (the “Regulations”). The Regulator therefore says that the necessary conditions in section 44 to permit a reference to the Tribunal are not met.

11. I considered the Upper Tribunal authority in Philip Freeman Mobile Welders Ltd v The Pensions Regulator [2022] UKUT 62 (AAC). This confirms that the presumption of service is not irrebuttable, and the rebuttable presumption of service applies to the question of whether a notice has been received for the purposes of the time limits for a review. Where there is a dispute about receipt of notices which may affect the relevant time limits, the evidence should be considered by the Tribunal.

12. The Appellant says that it did not receive the notices because the Regulator had the wrong address stored in its database. The Regulator relies on the presumptions of service set out in section 303(6)(a) of the Pensions Act 2004 and Regulation 15(4) of the Regulations for the service of the CN, FPN and EPN. It has provided evidence to show that the last known address of the Appellant was the registered office recorded at Companies House, which was the address to which the notices were sent.

13. However, the Appellant has not put forward any case that would potentially rebut the presumption of service because at the time the notices were issued they were issued to the Appellant’s registered office. This means there is no evidence about receipt of the notices in this case that needs to be tested at a hearing before the First-Tier Tribunal.

14. It is clear from the information provided by both parties that no request for a review of the FPN was made within the 28-day time limit. The Regulator refused to conduct any review for this reason. This means that the conditions of Section 44 of the Pensions Act are not met. There is no issue relating to receipt of notices. The Tribunal does not have jurisdiction to consider this appeal and so they are struck out under Rule 8(2)(a). SignedJudge HarrisDate: 8 December 2025