TG Hawthorne Limited v The Pensions Regulator

1. This reference concerns a Fixed Penalty Notice (“FPN”) which was issued by the Pensions Regulator (“the Regulator”) on 21 February 2025 (notice number 141647024860) to TG Hawthorne Limited (“the Employer”).

2. The FPN was issued under section 40 of the Pensions Act 2008 (“the Act”). It required the Employer to pay a penalty for failing to comply with the requirements of a Compliance Notice issued under section 35 of the Act and dated 27 December 2024.

3. The Regulator completed a review of the decision to impose the FPN and informed the Employer on 5 March 2025 that the penalty was upheld and confirmed. The Employer referred the matter to the Tribunal by way of form GRC1 dated 21 March 2025. The law

4. The Pensions Act 2008 imposed a number of legal obligations on employers in relation to the automatic enrolment of certain ‘jobholders’ into occupational or workplace personal pension schemes. The Pensions Regulator has statutory responsibility for securing compliance with these obligations and may exercise certain enforcement powers.

5. Each employer is assigned a ‘staging date’ from which the timetable for performance of their obligations is set. The Employer’s Duties (Registration and Compliance) Regulations 2010 specify that an employer must provide certain specified information to the Regulator within five months of their staging date. This is known as a ‘Declaration of Compliance’. An employer is required to make a re-declaration of compliance every three years. Where this is not provided, the Regulator can issue a Compliance Notice and then a Fixed Penalty Notice for failure to comply with the Compliance Notice. The prescribed Fixed Penalty is £400.

6. Under section 44 of the 2008 Act, a person who has been issued with a Fixed Penalty Notice may make a reference to the Tribunal provided that a review has been carried out or an application for review has been made to the Regulator. The role of the Tribunal is to make its own decision on the appropriate action for the Regulator to take, considering the evidence before it.

7. The Tribunal may confirm, vary or revoke a penalty notice and when it reaches a decision, must remit the matter to the Regulator with such directions (if any) required to give effect to its decision. Evidence

8. The Tribunal read and took account of a bundle of 50 pages of documents. The facts

9. The Employer’s re-declaration of compliance was not completed by the deadline of 6 December 2024, so the Regulator issued a Compliance Notice dated 27 December 2024 with a deadline of 6 February 2025. As this was not complied with, a FPN was issued on 21 February 2025 requiring the Employer to pay a penalty of £400. The FPN directed the Employer to comply with the Compliance Notice by completing the re-declaration and pay the fine by 21 March 2025.

10. The re-declaration of compliance was completed on 25 February 2025.

11. On 25 February 2025, the Employer requested a review of the FPN. The Regulator conducted a review and the penalty was confirmed on 5 March 2025.

12. The Employer referred the matter to the Tribunal on 21 March 2025. Submissions

13. The Notice of Appeal relies on the following grounds: a. The Employer thought that they had completed and submitted the re-declaration on 28 January 2025 (before deadline in the Compliance Notice and before the FPN was issued) so had no reason to contact the Regulator. b. The Employer only realised that the re-declaration had not been submitted when they received the FPN and they called the Regulator for help with completing and submitting it. c. The Employer argues that they did not have full knowledge of the steps necessary to complete a re-declaration online and the failure to submit it was an honest mistake.

14. The Regulator’s response submits that the Employer was aware of the need to make a re-declaration but submits that the appeal grounds do not offer a reasonable excuse for non-compliance. The Employer was given ample time to complete the re-declaration and the Employer was sent reminders and offers of support in March 2024 and September 2024. However the re-declaration was not completed by the extended deadline of 6 February 2025, and it appears that the Employer did not attempt to complete it until January 2025, which was after the deadline was extended by the Compliance notice, so the FPN was appropriately and properly issued. The Employer had already completed online their first declaration of compliance in a similar form and process so should have been aware of how to fully complete and submit the re-declaration. The Respondent also submits that all Notices were correctly and appropriately served on the Employer. Conclusions

15. The timely provision of information to the Regulator, so it can ascertain whether an employer has complied with its duties under the Act is crucial to the effective operation of the automatic enrolment scheme: unless the Regulator is provided with this information, it cannot effectively secure the compliance of employers with their duties. It is for this reason that the provision of a re-declaration of compliance within a specified timeframe is a mandatory requirement. Even though the Employer has now complied with this duty, this does not excuse a failure to comply.

16. The Tribunal finds that issuing the Fixed Penalty Notice was appropriate, unless there was a reasonable excuse for the Employer’s failure to comply with the requirements of the Compliance Notice.

17. All letters and notices were sent to the Employer’s current registered address.

18. The Employer should have been aware of its obligations in any event. The declaration of compliance had been completed, and the Employer ought to have known when the re-declaration was due.

19. The Tribunal concludes that the Employer did not have a reasonable excuse for failing to comply.

20. For the above reasons we are satisfied that the Employer has not provided a reasonable excuse for not complying with the Compliance Notice. We determine that issuing the Fixed Penalty Notice was the appropriate action to take in this case. We remit the matter to the Regulator and confirm the Fixed Penalty Notice. No directions are necessary.