4 Wheeler Ltd v The Pensions Regulator

The decision of the Tribunal is that the reference is struck out for want of jurisdiction and the matter remitted to the Pensions Regulator. Reasons Introduction

1. The Appellant runs a small business in Surrey.

2. The Respondent (‘TPR’) is the statutory regulator with responsibility for the automatic enrolment pension scheme. All notices issued and other enforcement action referred to below were his acts.

3. By this reference (or appeal, as I will call it from now on) presented on 20 June 2024, the Appellant challenges: (1) A Fixed Penalty Notice (‘FPN’) dated 14 September 2022 (‘FPN1’) requiring it, no later than 12 October 2022, to pay a penalty of £400 for failing to comply with an Unpaid Contributions Notice (‘UCN’) dated 18 July 2022 (‘UCN1’); (2) An Escalating Penalty Notice (‘EPN’) dated 14 October 2022 (‘EPN1’) for failure to comply with UCN1 by the stipulated deadline; (3) A FPN dated 9 May 2023 (‘FPN2’) requiring it, no later than 6 June 2023, to pay a penalty of £400 for failing to comply with a UCN dated 10 March 2023 (‘UCN2’) by the stipulated deadline; (4) An EPN dated 8 June 2023 (‘EPN2’) for failure to comply with UCN2 by the stipulated deadline.

4. It is not in dispute that the actions and payments required by the notices on which TPR relies were not taken by the stipulated dates. The central question in the case is whether the Appellant was duly ‘issued’ with the relevant notices.

5. The matter came before me for determination on the papers, both parties having stated that they were content for no hearing to be held. I was satisfied that it was just and in keeping with the overriding objective to adopt that procedure. The Legal Framework Statutory provisions

6. The Pensions Act 2008 (‘the 2008 Act’) imposes a number of requirements on employers in relation to the automatic enrolment (‘AE’) of certain ‘job holders’ in occupational or workplace personal pension schemes. These include the duty to pay contributions into relevant pension schemes. TPR has statutory responsibility for securing compliance with AE requirements. If he is of the opinion that an employer has failed to pay a contribution which it is liable to make, he may issue an UCN requiring it, by a specified date, to pay the contribution into the scheme and confirm to TPR that it has done so (s37).

7. By the 2008 Act, s40, TPR may issue an FPN in the sum of £400 The figure is prescribed by the Employers’ Duties (Registration and Compliance) Regulations 2010, reg

12. to a person if he is of the opinion that he or she has failed to comply with (among other things) a UCN. And in the event of a failure to remedy the breach by the date specified by the FPN, TPR may issue an EPN under s41, imposing escalating financial sanctions.

8. If he considers it ‘appropriate’ to do so, TPR may review an FPN or EPN, on the written application of the person affected or on his own initiative (the 2008 Act, s43(1)(a) and (b) respectively). The institution of a review has the effect of suspending the relevant notice pending the outcome of the review (s43(4)). The possible outcomes are confirmation, variation and revocation of the Notice. In the event of revocation, TPR may substitute a different notice (s 43(6)).

9. By the Employers’ Duties (Registration and Compliance) Regulations 2010 The Regulations were made pursuant to powers under the 2008 Act, s43(3). (‘the 2010 Regulations’) reg 15(1) and (2), time limits for seeking a review under the 2008 Act, s43(1)(a) or performing a review under s43(1)(b) are set at 28 days and 18 months respectively. There is no power to extend either period.

10. By s44 of the 2008 Act, provision is made for references to the First-tier Tribunal (‘FTT’) or (in circumstances which do not apply here) Upper Tribunal (‘UT’) in (so far as material) the following terms: (1) A person to whom a notice is issued under section 40 or 41 may, if one of the conditions in subsection (2) is satisfied, make a reference to the Pensions Regulator Tribunal Now the First-tier Tribunal in respect of— (a) the issue of the notice; … (2) The conditions are— (a) that the Regulator has completed a review of the notice under section 43; (b) that 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.

11. In dealing with a reference the powers of the FTT are very wide. The Pensions Act 2004 (‘the 2004 Act’), s103 includes: (3) On a reference, the tribunal concerned must determine what (if any) is the appropriate action for the Regulator to take in relation to the matter referred to it.

12. Under the Tribunals Procedure (FTT) (General Regulatory Procedure) Rules 2009 (as amended) (‘the 2009 Rules’) r8(2)(a) the FTT is under a duty to strike out proceedings, or any part of part of proceedings, in respect of which it lacks jurisdiction. Case-law

13. In Philip Freeman Mobile Welders Ltd v TPR [2022] UKUT 62 (‘Freeman’) the UT allowed an appeal against a decision to strike out in a case in which the appellant denied receiving the relevant notices. UTJ Wright reviewed the law relating to jurisdiction and the substantive dispute in some detail.

14. In JM Kamau Ltd v TPR [2025] UKFTT 484 (GRC) (‘Kamau’), another appeal in which service of statutory notices was in issue, Judge O’Connor, Chamber President, sitting in the FTT, considered a test case with a view to providing guidance on the proper interpretation of the applicable statutory provisions in the light of Freeman. Although Kamau does not have the status of a binding authority, I attach importance to it for three main reasons. First, the decision is that of the Chamber President, given in a test case after full argument, including submissions from a solicitor-advocate on behalf of TPR. Second, it is obviously desirable, so far as is compatible with the principle of judicial independence, for other constitutions of the FTT to apply the law in a way which is consistent with the President’s guidance. Third, I respectfully agree with the reasoning which underpins that guidance.

15. From Freeman and Kamau I draw the following propositions in relation to the issue of jurisdiction (where it arises): (1) As already noted, if the FTT does not have jurisdiction, it must strike out the claim under the 2009 Rules, r8(2). It follows that jurisdiction must be addressed first: Kamau [8] and [9]. (2) For the purposes of determining jurisdiction (if it is in question), it is for TPR to show, first, that the relevant notice was in fact ‘issued’ to the employer: Freeman [32], Kamau [29]. (3) The question whether the notice was ‘issued’ involves, in the ordinary case, The ‘ordinary case’ is where the notice is sent by post in accordance with the 2008 Act, s303(2)(c). inquiring whether (a) the notice was sent by post to the employer’s ‘proper address’ In the case of a body corporate, the registered or principal office (Interpretation Act 1978, s7 read with the 2004 Act, s303(6)(a)) and (b) it was received by the employer: Freeman [32]-[33]; Kamau [28]. (4) For the avoidance of doubt, sub-question (b) under proposition (3) above does not engage any statutory presumption Under the Interpretation Act 1978 and/or the 2004 Act, s303 and/or the 2010 Regulations, reg 15(4). of receipt: Freeman [34]; Kamau [28]. The burden is on TPR to establish receipt. (5) As to sending, the FTT is now, unless otherwise directed in any particular case, entitled to rely on the evidence concerning the system for issuing notices given by his witness Ms Doherty in Freeman and Kamau,without producing a witness statement repeating that evidence: Kamau [80]. (6) As to receipt, the duty of the Tribunal is to consider, weigh and evaluate the employer’s evidence seeking to challenge TPR’s evidence in support of the assertion that any notice was sent. To repeat, no legal presumption of receipt applies here (see proposition (4) above). TPR’s case on sending may be persuasive but that does not make the outcome on the question whether the notice was issued inevitable: Freeman [32]-[33]. ‘Evidence of non-receipt needs to be addressed, weighed and evaluated by the Tribunal against the evidence put forward by [TPR]’: Kamau [85]. (7) A purported application for review made after expiry of the 28-day period specified in the 2008 Act, s43(1)(a) is not an ‘application under’ that provision for the purposes of s44(2)(b): Kamau [124].

16. The logic of the above, as I understand it, is that, in any case such as this where jurisdiction is in question because of a dispute about whether the relevant notice was duly received, the well-known legal presumptions as to receipt (see proposition (4) above and footnote 6) are irrelevant. It is for TPR to show ‘issue’, which involves proving that the relevant notice was both sent and received. If (for any reason) ‘issue’ is not shown to the satisfaction of the FTT, the appeal inevitably falls for want of jurisdiction, but despite that technical outcome the appellant will suffer no prejudice since (barring any appeal to the UT on the question of ‘issue’) TPR must be expected to revoke the notice or, if there is some procedural obstacle to doing so, acknowledge its invalidity and renounce any further attempt to enforce it. Conversely, if the FTT finds that due ‘issue’ of the notice is shown and that it has jurisdiction, any presumption about receipt becomes redundant since receipt will already have been established on evidence by TPR, being an inherent element of the prior determination as to jurisdiction.

17. If the FTT has jurisdiction to consider the appeal, it must perform a broad, evaluative assessment in discharging its duty under the 2004 Act, s103. In In the matter of the Bonas Group Pension Scheme [2011] UKUT B 33 (TCC) Warren J, sitting in the UT, held that there was nothing to constrain the FTT’s approach. Its function is not that of an appellate court considering an appeal. It must simply make its own decision on the evidence before it (which may differ from that before TPR at the time of his decision). One question which it may well be appropriate to take into account is whether the employer has shown a good excuse for its failure to comply with the AE duty which it has infringed: The Pension Regulator v Strathmore Medical Practice [2018] UKUT 104 (AAC). Key Facts and Procedural History

18. The material facts, which are mostly undisputed, can be summarised shortly as follows. 16.1 FPN1 was issued on 14 September 2022, as a result of the Respondent failing to comply with UCN1. It stated that any objection to the notice must be submitted within 28 days of issue. 16.2 EPN1, dated 14 October 2022, followed, as a result of the Respondent failing to comply with UCN1 by the (extended) deadline under FPN1. Likewise, EPN1 stated that any objection to the (escalated) penalty must be submitted within 28 days of issue. 16.3 No objection (in the form of a request for review or otherwise) was submitted on behalf of the Respondent within the deadlines referred to in paras 16.1 and 16.2 above. 16.4 TPR did receive a request dated 9 January 2023 for a review of FPN1 and EPN1, sent by a firm of accountants which introduced itself as the Respondent’s ‘new accountants’ and attributed the (undisputed) non-compliance with prior notices to the failure of the previous accountants to cooperate. TPR responded on 18 January 2023, declining to conduct reviews on the ground that the request (in relation to both notices) was out of time. 16.5 FPN2, dated 9 May 2023, required the Respondent, no later than 6 June 2023, to pay a penalty of £400 for failing to comply with UCN2 by the stipulated deadline. 16.6 EPN2 was issued on 8 June 2023 as a result of the Respondent’s failure to comply with UCN2 by the deadline of 6 June 2023 by the deadline referred to in para 16.5. 16.7 No review request was submitted in respect of either FPN2 or EPN2. 16.8 By its notice of appeal dated 20 June 2024, the Respondent challenged all four penalties on the grounds that it had not received the relevant communications from TPR and so had been unaware of the obligations it was accused of infringing. 16.9 The proceedings were stayed pending promulgation of the decision of the FTT in Kamau (see above), which was published on 17 April 2025. The stay was lifted on 20 June 2025. 16.10 On 8 July 2025 TPR issued an application for the reference (hereafter referred to as the appeal) to be struck out on the grounds that the Tribunal was without jurisdiction because neither of the conditions in the 2008 Act, s44(2) had been met. 16.11 On 6 October 2025 Judge Saward decided that the appeal was not amenable to striking-out on paper since the application involved disputed facts which needed to be determined on the basis of evidence and argument. 16.12 Accordingly, TPR presented an amended response renewing the strike-out submissions, but also containing grounds for resisting the appeal on its substantive merits. The Appeal 17 The notice of appeal and two further documents authored by Mr Conor Murphy, Operations Manager of the Appellant, raise four main points or arguments responding to the strike-out application: (1) The Appellant received no notice or other relevant communication from TPR at any time and first became aware of its alleged liability only on receipt of communications from a debt recovery agency in May 2024. (2) The review application apparently made in the name of the Appellant in relation to the 2022 notices had not been made with the authority or knowledge of the company. The Appellant believed that it had been made by its previous accountant, falsely identifying himself as a director of the company. He had not informed the Appellant of the application or its outcome and, his retainer having been terminated, he had retained relevant documents and not passed them on to the newly-appointed accountants. Moreover, the fact that the review application had been made without the knowledge or authority of the Appellant meant that it was not an application within the scope of the 2008 Act, s43(1)(a). (3) The Appellant had an impeccable record of maintaining pension contributions and adhering to its AE obligations. (4) The Appellant’s rapid response in May 2024 following contact by the debt collection agency was further evidence of its good faith and reinforced the credibility of its contention that it had not had sight of material communications before May 2024. 18 In summary, TPR responds as follows (paragraph numbers refer to the final iteration of his case, contained in the undated ‘Application to strike out pursuant to rule 8(2)(a) and Response’): (1) The statutory presumptions as to delivery Under the Interpretation Act 1978, s7, the 2004 Act, s303 and the 2010 regulations, reg 15(4) of notices apply (para 18). (2) The Appellant raises no more than a ‘bare assertion’ of non-receipt of the notices and accordingly (a) there is no obligation on TPR to ‘prove service’ and Runa Akhter principles apply (para 19) and (b) Freeman is ‘distinguishable’ (para 20). (3) Alternatively, if the Appellant raises more than a ‘bare assertion’ and ‘so the Freeman test applies’, it nonetheless fails because it has not put forward evidence, or credible evidence, to rebut the presumption of service (para 21). (4) Neither of the conditions in the 2008 Act, s44(2) is satisfied. (5) The law as set out in Mosaic Community Care Ltd v TPR PEN/2015/0004 applies and the appeal must be struck out. Discussion and Conclusions 19 As I have noted, the Tribunal’s jurisdiction to consider an appeal depends on two things. First, the notice under challenge needs to have been ‘issued’ (s44(1)). This involves two questions of pure fact: (a) Was it sent by post to the Appellant’s ‘proper address? (b) Was it received? 20 As to (a), adopting the line taken by the FTT in Kamau at [80], I find that the generic TPR evidence, read with the documents in the bundle before me, establishes that the notices were sent to the ‘proper address’, namely the Appellant’s registered office, in accordance with the robust service system which TPR operates. I have been shown no evidence of any malfunction of the system in this case and my conclusion and reasoning in relation to sub-question (b) argue powerfully against any inference of a failure of the system. 21 That brings me to sub-question (b). In my view, it is clearly established on a balance of probabilities that the 2022 notices were received at the Appellant’s proper address in the ordinary course of post. How else, one might ask, could they have come into the hands of its accountant (or former accountant)? 22 In these circumstances, I find that TPR has done enough to demonstrate that it is more likely than not that the 2023 notices were also received at the Appellant’s proper address in the ordinary course of post. 23 It follows that I am satisfied that TPR has discharged the burden of showing that all four notices were duly ‘issued’. 24 The second requirement for jurisdiction is that one of the conditions in the 2008 Act, s44(2) must be satisfied, namely that TPR has either carried out a review or received an application for review made under s43(1)(a) but determined not to carry out such a review. It is common ground that no review has been carried out. It is also beyond dispute that an application was purportedly made for a review of FPN1 and EPN1, which TPR rejected as out of time, and that no application for review of FPN2 and/or EPN2 has been made. So, in respect of the 2023 notices, it is clear beyond argument that neither of the s44(2) conditions is satisfied. As to the 2022 notices, the only point raised by the Appellant seems to be that the purported application for review of 9 January 2023 was made without its authority and so was invalid. This argument goes nowhere. In the first place, the application seems to have been made by accountants retained (at some point) by the Appellant with authority, ostensible if not actual, to act for it in making the application. If that is right, basic principles of agency make the accountant’s action in law that of the Appellant. On this analysis, the Appellant (through its agent) made an application but, being out of time, not one under the 2008 Act, s43(1)(a) (see Kamau [124). Alternatively, if the Appellant is right that the (purported) application for review was, on agency law grounds, a nullity, the same result follows: there was no ‘application under’ s43(1)(a). However one looks at the matter, neither of the s44(2) conditions is satisfied in relation to the 2022 notices since there has been no review and no application for review. 25 In summary, for the reasons stated, I am satisfied that, on a proper application of the 2008 Act, s44(1) and (2), the four notices under challenge were duly ‘issued’ to the Appellant and neither of the conditions on which the Tribunal’s jurisdiction to consider the appeal depends has been met. Outcome and Postscript 26 The appeal is struck out for want of jurisdiction. 27 Although I have reached a clear conclusion, I take this opportunity to register two concerns. First, the evident zeal of TPR’s staff to secure enforcement of AE obligations must not be allowed to override its obligation as a statutory regulator to act fairly and with due regard to the applicable law. This is particularly important given the fact that a large proportion of the employers against whom AE enforcement measures are taken are small, unrepresented organisations with very limited resources and little if any grasp of the complex legal framework which applies. In these circumstances, it is alarming to see legal arguments advanced on behalf of TPR which woefully miss-state the applicable law. Of the five core submissions advanced in the name of TPR in this case (listed above), three are simply wrong. For the purposes of jurisdiction (and specifically the question of ‘issue’ of notices) (a) the statutory presumptions as to service are not applicable; (b) Runa Akhter principles are not applicable, and it is not arguable that Freeman is ‘distinguishable’; (c) Freeman does not place the burden on the employer to prove non-delivery (it says the opposite). Moreover, as to a fourth of the five core submissions, (d) it is at very best unhelpful to cite the Mosaic case (a decision of the FTT) PEN/2015/0004 : that decision was explicitly declared by the UT in Freeman to be wrong on one important point going to the substance of the appeal and determines nothing material to jurisdiction which is not covered at binding, UT level in Freeman. In my view TPR should urgently review its standard pleadings and submissions to ensure that the curse of ‘cut and paste’ (which, with stretched resources, pressure of work and similar factors may explain the errors in this case) does not result in further indefensible arguments being advanced in future which might be seen as prejudicing the fair and proper administration of justice. 28 Second, given the stress which the case-law places on the importance of evaluating evidence in appeals turning on disputes about service (whether jurisdiction is in question or not), it seems to me that TPR, acting as a fair-minded regulator, should discourage appellants from running fact-based appeals on the strength of written representations alone, rather than requesting a hearing. At the very least, any response in which TPR consents to a ‘paper determination’ (and any other relevant standard documentation) should make the point that an appellant giving similar consent may be disadvantaged by failing to take the opportunity to attend a hearing, explain (through the evidence of witnesses and by reference to documentary evidence) all facts and circumstances relied on to show that the relevant notice(s) was/were not received and answer any questions which the Tribunal may wish to ask. As matters currently stand, appellants are faced with the decision of whether to opt for a hearing or not without being given any inkling of the implications which one choice or another may involve. Without suitable measures being taken to protect disadvantaged appellants, TPR should not be surprised by Tribunals presented with ‘paper determinations’ deciding, in appropriate cases, that justice can be done only by adjourning the matter and insisting on a hearing. (Signed)Anthony Snelson Judge of the First-tier Tribunal Date: 30 January 2026