Commentary on Sections Summary Schedule 9: Reviewable matters
734.This Schedule lists the “reviewable matters” for the purpose of section 206.
735.Where an insolvency event has occurred in relation to the employer, section 122 (insolvency practitioner’s duty to issue notices confirming status of scheme) requires an insolvency practitioner to issue one of the following notices in relation to the occupational pension scheme:
	a “scheme failure notice”, if able to confirm that a scheme rescue is not possible;
	a “withdrawal notice”, if able to confirm that a scheme rescue has occurred; or
	a notice to the effect that he has not been able to confirm whether a scheme rescue is not possible/has occurred.
736.If the Board is satisfied that the insolvency practitioner’s notice was correct, it issues a “determination notice” in accordance with section 123(approval of notices issued under section 122). The Board’s determination notice, is a reviewable matter under paragraph 1.  The Board’s failure to issue a determination notice is a reviewable matter under paragraph 2.
737.If the Board determines not to approve the notice issued by the insolvency practitioner under section 122(insolvency practitioner’s duty to issue notices confirming status of scheme); or the insolvency practitioner has failed to issue a notice under that section, the Board is required, under section 124 (Board’s duty where there is a failure to comply with section 122) to issue the notice that the insolvency practitioner should have issued. The notice issued by the Board (or the Board’s failure to issue the required notice) is reviewable under paragraph 3.
738.Section 130(Board’s duty where application or notification received under section 129) requires a scheme’s trustees/managers to apply for the Board to assume responsibility for the scheme if they believe that the employer is unlikely to continue as a going concern and requirements to be prescribed (under section 129(1)) are met. If the Regulator becomes aware that the circumstances which would require such an application exist, it must notify the Board accordingly (section 129(4)). In either of these circumstances, under section 130(Board’s duty where application or notification received under section 129) the Board is required to issue either a “scheme failure notice” confirming that a scheme rescue is not possible, or a “withdrawal notice” if a scheme rescue has occurred. Paragraph 4 allows a review to be requested in respect of the Board’s determination to issue either a “scheme failure notice” or a “withdrawal notice”. A review may also be requested if the Board fails to issue such a notice.
739.Paragraph 5 provides that any direction given, during an assessment period, by the Board under section 134(2), (the investment of the scheme’s assets, for example) including any variation or revocation of a direction, can be reviewed.
740.In general terms, section 135(restrictions on winding up, discharge of liabilities etc) precludes a scheme that is eligible to enter the Pension Protection Fund from starting to wind up during an assessment period or from otherwise discharging any liabilities of the scheme. However, the Board may validate (or not validate) any actions by a scheme’s trustees or managers to wind up the scheme where such restrictions apply. Paragraph 6 allows the Board’s determination to be reviewed.
741.Section 139(loans to pay scheme benefits) provides for the Board to make short term loans to eligible schemes, to enable the trustees or managers to pay the Pension Protection Fund level of benefits when the scheme is unable to do so during an assessment period. The Board’s determination under section 139(2) regarding the making of a loan, the amount of any such loan and the failure to make such a loan is reviewable under paragraph 7.
742.Paragraph 8 provides for the Board’s failure to obtain a valuation under section 143(2)(Board’s obligation to obtain valuation of assets and protected liabilities) to be reviewed.
743.The Board’s approval of the valuation under section 144(approval of valuation), or failure to approve the valuation, may be reviewed under paragraph 9.
744.The Board of the Pension Protection Fund may refuse to assume responsibility for an occupational pension scheme if:
	An eligible scheme has not satisfied the eligibility conditions throughout a prescribed period under section 146(schemes which become eligible schemes); or
	A new scheme has been created to replace an existing scheme under section 147(new schemes created to replace existing scheme).
745.The Board’s determination to issue a withdrawal notice, or failure to do so, in either of these situations, is reviewable.
746.In certain circumstances where a former insolvency practitioner has not been able to confirm whether a scheme rescue has occurred/is not possible, he issues a notice to the Board to this effect (section 122(4) refers). Following receipt of that notice, the Board is required to issue a determination notice if satisfied that the insolvency practitioner’s notice was correct (section 123).
747.When the insolvency practitioner’s notice becomes binding, if the Board is able to decide that no insolvency event has occurred (or is likely to occur within six months from the date that the insolvency practitioner issued the section 122(4) notice), it issues a withdrawal notice. Conversely, if the Board is unable to decide that no insolvency event will occur, it waits until the end of the six month period, and if no insolvency event has occurred, it must issue a withdrawal notice. The issue of the withdrawal notice by the Board under section 148 (or the failure to issue it) is reviewable under paragraph 11.
748.Where it has been confirmed that a scheme rescue is not possible during an assessment period and the Pension Protection Fund valuation has become binding, section 154(requirement to wind up schemes with sufficient assets to meet protected liabilities) requires the scheme to be wound up by the trustees or managers if the scheme’s assets are sufficient to meet its Pension Protection Fund level of liabilities. In such cases, the scheme’s trustees or managers can apply to the Board under section 151(application for reconsideration).
749.Section 152(duty to assume responsibility following reconsideration) requires the Board of the Pension Protection Fund to issue a determination notice to assume responsibility for the scheme at reconsideration, if satisfied that certain criteria are met regarding the value of the scheme’s assets at the reconsideration date. The Board’s determination notice under section 152(3), or failure to issue such a notice, is reviewable under paragraph 12.
750.Where a scheme rescue is not possible for a large scheme and the scheme has sufficient assets to meet its Pension Protection Fund level of liabilities, the trustees or managers must apply to the Board for authority to continue as a closed scheme if they are unable to obtain a full buy-out quotation. The Board is then required to issue a determination to the scheme. The determination notice issued by the Board under section 153(6) (closed schemes) is reviewable under paragraph 13, as is the Board’s failure to issue such a notice.
751.Where it has been confirmed that a scheme rescue is not possible during an assessment period and the Pension Protection Fund valuation has become binding, the scheme is to be wound up by the trustees or managers if the scheme’s assets are sufficient to meet its Pension Protection Fund level of liabilities in accordance with section 154(requirement to wind up schemes with sufficient assets to meet protected liabilities). In such cases, the Board may direct the scheme trustees or managers as to the manner of winding up the scheme. The Board may also vary or revoke a direction that it has given. Under paragraph 14 any direction given by the Board is reviewable, as is a variation or revocation of a Board’s direction.
752.Paragraph 15 provides for a review to be requested where the Board has failed to issue a transfer notice under section 160(transfer notice).
753.Paragraph 16 deals with the Board’s determination of a person’s entitlement to Pension Protection Fund compensation. So a person can challenge, for example, the number of years’ accrued rights on which his compensation is based. A review may also be requested where the Board fails to determine a person’s entitlement to Pension Protection Fund compensation.
754.Where the Board of the Pension Protection Fund assumes responsibility for a scheme, and the benefits paid (excluding money purchase benefits) during the assessment period were less than the entitlement rate, section 163(adjustments to be made where the board assumes responsibility for a scheme) requires the shortfall to be paid, with interest. Paragraph 17 allows for a review to be requested where the Board has failed to pay the shortfall.
755.The Board’s determination, or failure to reach a determination, under section 181(3)(a)(calculation, collection and recovery of levies) that a scheme is eligible to pay the initial or pension protection levy is reviewable under paragraph 18.
756.The Board’s calculation under section 181(3)(b)(calculation, collection and recovery of levies) in relation to the amount of initial or pension protection levies payable is reviewable under paragraph 19. (So where the calculation was based on 500 members, for example, but the scheme had only 50 members, this matter is reviewable. But the formula for calculating the levies is not reviewable).
757.The Board can make fraud compensation payments to occupational pension schemes in circumstances to be prescribed under section 182(1) (cases where fraud compensation payments can be made). Paragraph 20 allows for the Board’s determination of whether to make a fraud compensation payment, the amount of any payment and the Board’s failure to make such a payment, to be reviewed.
758.This paragraph deals with certain types of schemes that are not eligible for Pension Protection Fund compensation, but can apply for fraud compensation (typically most defined contribution schemes). In such cases, if the Board decides that a scheme rescue has occurred or is not possible, section 183(2) (Board’s duties in respect of certain applications under section 182) requires the Board to issue a notice to that effect. Paragraph 21 allows the Board’s notice (or a failure to issue the notice) to be reviewed.
759.The Board may not make a fraud compensation payment unless it has determined a settlement date (i.e. a date after which no further recoveries of value are likely to be made) under section 184(2)(recovery of value). The Board’s determination regarding the settlement date, and its failure to determine such a date, are reviewable under paragraph 22.
760.In fraud compensation cases, if the scheme trustees or managers receive a payment, section 184(4)(recovery of value) requires the Board to determine whether the payment is to be treated as relating to the alleged fraud. The Board’s determination can be reviewed under paragraph 23, as can the Board’s failure to make a determination.
761.Section 186(interim payments) allows the Board to make interim fraud compensation payments in certain circumstances. Paragraph 24 allows the making of an interim payment, the amount of any such payment and the failure to make a payment to be reviewed.
762.Fraud compensation payments (including interim payments), made by the Board may be subject to certain terms and conditions (sections 185(2)(fraud compensation payments) and 186(4) (interim payments) refer). The Board’s terms and conditions may be reviewed under paragraph 25.
763.In general terms, where interim fraud compensation payments have been made, section 186(interim payments) provides for the Board to recover any amount that it determines was excessive. The Board’s determination of the amount that was excessive is reviewable under paragraph 26.
764.The Board can determine that a payment is to be transferred from the fraud compensation fund to the pension protection fund. Section 187(4)(Board’s powers to make fraud compensation transfer payments), provides that such payments cannot be made before the date determined by the Board (i.e. the date that no further recoveries in relation to the fraud are likely to be obtained without disproportionate costs and within a reasonable time). The Board’s determination regarding the date can be reviewed under paragraph 27.
765.Section 187(6) requires the Board to determine whether anything received by it relates to repayment in an alleged fraud case. The Board’s determination can be reviewed under paragraph 28.
766.A determination by the Board (or failure to reach a determination) under section 189(7)(a)(fraud compensation levy) that a scheme is eligible to pay a fraud compensation levy is reviewable under paragraph 29.
767.Paragraph 30 allows for the Board’s calculation to be reviewed in relation to the amount of fraud levy payable (as calculated under section 189(7)(b)(fraud compensation levy)).