Baytree Bistro & Bar Ltd v The Pensions Regulator

Mode of hearing

1. Both parties consented to a determination without a hearing and I am satisfied that I can properly determine this appeal without a hearing pursuant to rule 32(1)(b) of The Tribunal Procedure (First-tier Tribunal)(General Regulatory Chamber) Rules 2009, as amended (“the Rules”). I have considered the bundle comprising 241 pages. Background

2. The Pensions Regulator (“TPR”), the Respondent, is responsible for the regulations of work-based pension schemes. Established by the Pensions Act 2004 (‘PA 2004’), its objectives are set out in s.5 of the PA 2004. These include maximising compliance with automatic enrolment duties under Chapter 1 of Part1 of the Pensions Act 2008 (“PA 2008”) and safeguards in ss.50 and

54.

3. This reference, the appeal, is in respect of a Fixed Penalty Notice issued on 9 December 2024 under s.40 of the Pensions Act 2008 (“PA 2008”). The Respondent issued the Fixed Penalty Notice because the Appellant failed to comply with the Compliance Notice issued under s.35 of the PA 2008 on 11 October 2024, by the deadline of 21 November 2024.

4. The Appellant, Baytree Bistro and Bar Ltd, is the employer for all purposes of the ‘Employer Duties’ under the PA 2008. The Appellant’s Duties Start Date (i.e. the date on which the automatic enrolment duties applied to the employer) was 10 April 2024 and its statutory deadline to submit its Declaration of Compliance was 9 September 2024.

5. The Respondent first wrote to the Appellant in August 2024 (Annex A). The letter and guidance leaflet advised the Appellant as employer of its upcoming duties and provided guidance as to how and when to complete these by and where to seek additional support if required. The letter confirmed the extended declaration deadline was 3 October 2024, as well as giving a short explanation of what was required by this date. The letter also advised that no email address was held by the Respondent for the Appellant and gave information as to where contact details could be updated. Since no email address was held by the Respondent, no email reminders were issued.

6. The Appellant did not submit a Declaration of Compliance by its statutory deadline of 9 September 2024 or the extended deadline of 3 October 2024.

7. There was no response from the Appellant and the Respondent issued a Compliance Notice to the Appellant on 11 October 2024 (Annex B). The Compliance Notice required the Appellant to complete and submit its Declaration of Compliance by the second extended deadline of 21 November 2024 (the original deadline of 9 September 2024 and first extended deadline of 3 October 2024 having passed). The Compliance Notice specified that a £400 penalty may be imposed if the Appellant failed to comply.

8. The Respondent attempted to telephone the Appellant on 6 November 2024, (Annex C), in order to remind the Appellant of its obligations, following the issue of the Compliance Notice. The Respondent left its contact details with the recipient of the call, who advised that they would pass on the information to the relevant person in charge of the AE duties for the employer.

9. The Appellant did not complete its Declaration of Compliance by 21 November 2024 as set down in the Compliance Notice (Annex B) and the Respondent issued a Fixed Penalty Notice to the Appellant on 9 December 2024 (Annex D). The Fixed Penalty Notice requested a penalty payment of £400 and compliance with the Compliance Notice no later than 6 January 2025.

10. The Appellant submitted a request for review of the Fixed Penalty Notice on 12 December 2024 (Annex E).

11. The Respondent sent a decision by email to the Appellant on 19 December 2024 (Annex F) which confirmed that the Fixed Penalty Notice had been upheld.

12. Subsequently on 4 January 2025 the Appellant submitted its Declaration of Compliance, which was acknowledged by the Respondent on 5 January 2025 (Annex G).

13. The Respondent received notice of the reference on 16 May 2025. Grounds of appeal

14. The Appellant relies on the following grounds of appeal: a) The Appellant did not receive the Welcome Pack. There was no opportunity for the Appellant to discuss if the Welcome Pack was received or not. b) Although not asserted explicitly, it is inferred that the Compliance Notice was not received. c) Unless the Welcome Pack was sent by recorded delivery then there might not be “proof.” d) It is not right for the Fixed Penalty Notice to be upheld, when there is no proof of delivery. e) Compliance was achieved as soon as the Appellant became aware of the issue. f) The Appellant is a busy company and post can be misplaced. g) No workers have been disadvantaged. Grounds of opposition

15. The Respondent relies on the following grounds of opposition: a) The grounds of appeal either individually or collectively do not amount to a reasonable excuse for the failure to comply with the Compliance Notice or comprise grounds to revoke the Fixed Penalty Notice. b) The Appellant bears a statutory responsibility for complying and providing the required information to the Respondent by the prescribed deadline. c) The Respondent opposes the reference and asks that the case is dismissed. Conclusions

16. This appeal is concerned with the duty under s.11 PA 2008 to give prescribed information, namely the Declaration of Compliance to the Respondent.

17. I find that the Respondent wrote to the Appellant in August 2024 (Annex A) advising the Appellant that the declaration deadline was 3 October 2024. The letter explained what was required by the date of 3 October 2024. The letter advised that no email address was held for the Appellant. As no email address was held no email reminders were issued to the Appellant.

18. I find that the Appellant did not submit a Declaration of Compliance by its statutory deadline of 9 September 2024 or by the extended deadline of 3 October 2024.

19. I find that the Respondent issued a Compliance Notice to the Appellant on 11 October 2024 (Annex B). The Compliance Notice required the Appellant to complete and submit a Declaration of Compliance by the extended deadline of 21 November 2024. The Compliance Notice stated that a £400 penalty may be imposed if the Appellant failed to comply.

20. I find that the Respondent telephoned the Appellant on 6 November 2024 and left contact details to pass on the information to the relevant person.

21. I find that he Appellant did not complete the Declaration of Compliance by 21 November 2024. The Respondent issued a Fixed Penalty Notice on 9 December 2024. The Fixed Penalty Notice required a penalty payment of £400 and compliance with the Compliance Notice no later than 6 January 2025.

22. The Appellant submitted a request for a review of the Fixed Penalty Notice on 12 December 2024 (Annex E).

23. The decision as sent by email to the Appellant on 19 December 2024 confirming that the Fixed Penalty Notice was upheld.

24. I find that the Welcome Pack, the Compliance Notice and the Fixed Penalty Notice were properly served and “received” by the Appellant. I find that on the evidence there is no basis for displacing the statutory presumption of due service.

25. S.7 of the Interpretation Act 1978 provides that where a document is properly addressed, prepaid, and posted, it is deemed served at the time it would ordinarily be delivered, unless the contrary is proved. In this case, the Welcome Pack and the Compliance Notice were sent by post to the Appellant’s registered office as recorded at Companies House. There is no evidence of returned mail or postal failure.

26. Regulation 15(4) of the Occupational and Personal Pension Schemes (Automatic Enrolment) Regulations 2010 provides that a notice served under the Pensions Act is deemed properly served if it is sent to the employer’s “proper address,” which ordinarily means the registered office recorded at Companies House. The onus is on the Appellant to provide the appropriate address for service. There is no material evidence of any error in addressing or any returned correspondence at any material time in this case. Service can therefore be deemed effective under Regulation 15(4), reinforcing the statutory presumption that the notices were received.

27. The combined effect of s.7  and Regulation 15(4) is to create a rebuttable presumption of service and receipt. Once the Respondent demonstrates that notices were properly addressed, prepaid, and posted to the registered office, the burden shifts to the Appellant to prove the contrary on the balance of probabilities. Mere assertions of non-receipt or reliance on circumstantial factors, such having a busy office and mail being overlooked, are insufficient. Cogent evidence—such as Royal Mail documentation of delivery failure or returned mail at any material time is required to displace the presumption. No such evidence has been provided. I consider it significant that the Fixed Penalty Notice sent to the same address was received. It is significant, also, that the address used by the Respondent was confirmed as the address in the Declaration of Compliance submitted on 4 January 2025 and was cited as the correspondence address for both directors for the Appellant (Annex J).

28. I find that the statutory requirements for service were met and that the presumptions of receipt under s.7 of the Interpretation Act 1978  and Regulation 15(4) of the 2010 Regulations have not been rebutted. The Compliance Notice, the Fixed Penalty Notice and the Welcome Pack were prima facie lawfully served and are deemed received, and the Appellant remains liable for the penalty imposed.

29. I find there is a duty on the Appellant to be aware of its legal duties and to ensure full compliance and on-time compliance. I find that there is no record of the Appellant attempting to or completing the Declaration of Compliance at any time before the Compliance Notice deadline of 21 November 2024.

30. I find that employers with workers as defined in the PA 2008 are required to comply with their statutory duties and within the timescales as provided in the legislation.

31. I find that there is no legislative obligation on the Respondent to send reminders. It is for the Appellant to be aware of its duties and ensure compliance with the legislation. It is the duty of a responsible employer to be aware of the legal duties and to ensure full and timely compliance with those duties.

32. I find it was reasonable and appropriate for the Respondent to issue a Compliance Notice. I find it was fair reasonable and appropriate for the Respondent to issue a Fixed penalty notice when the Appellant failed to comply with the Compliance Notice.

33. I find that there were statutory grounds for issuing the Fixed Penalty Notice. The amount of the Fixed Penalty Notice is prescribed in Regulation 12 of the Employers’ Duties (Registration and Compliance) Regulations 2010. There is no discretion as to the amount of the penalty.

34. I find that late compliance does not negate liability.

35. I find that the Appellant did not have a reasonable excuse for failing to complete the Declaration of Compliance on time.

36. Accordingly, the appeal is dismissed. SignedDate: 11 March 2026 J Findlay Judge of First-tier Tribunal