Commentary on Sections Scheme funding Section 231: Powers of the Regulator
843.This section confers powers on the Regulator to take action aimed at resolving difficulties arising in the operation of the scheme funding provisions. Subsection (1) specifies the circumstances in which these powers may be used, and the powers themselves are set out in subsection (2).
844.The powers conferred by this section will be exercisable where it appears to the Regulator (whether as a result of a report made to the Regulator or otherwise) that:
	the trustees or managers have failed to comply with the requirement in section 223 with respect to the preparation and revision of the statement of funding principles, or to review and revise such a statement;
	the trustees or managers have failed to obtain an actuarial valuation as required by section 224(1);
	the actuary is unable to certify the calculation of the scheme’s technical provisions or its schedule of contributions;
	the trustees or managers have failed to comply with the requirements of section 226 with respect to the preparation and revision of a recovery plan;
	the trustees or managers: have failed to comply with the requirements of section 227 with respect to the preparation and revision of a schedule of contributions;
	the actuary is unable to certify a schedule of contributions;
	the employer has failed to make payments in accordance with the schedule of contributions (or payments treated as a debt under section 228(3), and that failure is of material significance to the Regulator in the exercise of its functions.
	the trustees or managers have been unable to reach agreement with the employer within the prescribed timescale about one or more of the matters on which agreement is required under section 229.
845.Subsection (2) confers the following powers, any (or all) of which the Regulator will be able to use by means of an order:
	to modify future benefit accruals under the scheme;
	to give directions about the manner in which the scheme’s technical provisions should be calculated, including the methods and assumptions which should be used in the calculation;
	to give directions about how, and over what period, any failure to meet the statutory funding objective should be rectified;
	to impose a schedule of contributions on the scheme setting out the contributions to be paid and the dates by which they are to be paid.
846.Subsection (3) prohibits any modification under subsection (2) that would adversely affect the subsisting rights of any scheme member or their survivor. For the purposes of this legislation the definition of “subsisting right” and “survivor” is given in Section 67A of the Pensions Act 1995.
847.Subsection (4) provides a power to make regulations specifying requirements with which the Regulator must comply when exercising these powers. Subsection (4) makes it clear that these powers for the Regulator are additional to any others proposed by this Act, or conferred by the Pensions Act 1995 (c.26).