I Monitor FS Limited v The Pensions Regulator

1. This is a reference against an Escalating Penalty Notice (“EPN”) under section 41 of the Pensions Act 2008 (“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 an 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 16 April 2025, a Fixed Penalty Notice on 11 June 2025 and an EPN on 11 July 2025. The Appellant requested a review of the EPN on 18 August 2025. The Respondent declined to conduct a review because it had been received outside the 28-day time frame for doing so and declined to conduct a review on its own initiative. The Appellant submitted a further review request on 18 August 2025. The Respondent responded to this request on 27 August 2025 and again stated that it declined to conduct a review because it had been received outside the 28-day time frame for doing so and declined to conduct a review on its own initiative.

7. The Appellant made a reference by way of form GRC1 which was dated 27 August 2025. Its grounds for appeal gave the following reasons why the decision was wrong: “We only became aware of the penalty on 18th August 2025, when delayed post, originally sent to a neighbouring office in our shared building, was passed on to us. This included a letter dated 11th June 2025 notifying us of a fixed penalty charge, but we never received any prior correspondence informing us that a declaration of compliance was required. It is therefore our understanding that the initial notice was either never sent or never delivered. As soon as we received the letter, we submitted the declaration immediately and contacted The Pensions Regulator to confirm receipt. During this call, we were told the penalty had not been escalated, nor would it be escalated during our appeal. We later submitted an appeal, but were informed 7 days later it would not be reviewed because it was submitted more than 28 days after the notice, something that was impossible, as we only became aware of the issue on 18th August. We were also notified, unexpectedly, that the penalty had been escalated to £2,000, despite previous assurance that it had not. As a small business with limited resources, we find this deeply unfair and financially punitive. We have acted responsibly and transparently at every stage, and we believe that this escalation was both unjustified and avoidable had the original communication been received. We respecfully request that you take our circumstances into account and consider the burden this unexpected penalty places on a small operation like ours. We respectfully request that the £2,000 escalation penalty be removed, and confirm we are prepared to settle the £400 fixed penalty as a gesture of goodwill and in recognition of our responsibilities as a small business.”

8. The Regulator says that the Tribunal does not have jurisdiction 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 Regulator therefore says that the necessary conditions in section 44 to permit a reference to the Tribunal are not met.

9. 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.

10. The Appellant stated that its office “is located in a shared building where post is frequently misdelivered”. 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.

11. However, the Appellant has not put forward any case that would potentially rebut the presumption of service because at the time the EPN was issued it was 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.

12. It is clear from the information provided by both parties that no request for a review of the EPN 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 reference and so it is struck out under Rule 8(2)(a). SignedJudge HarrisDate: 14 January 2026