In June 2023, the High Court held that amendments to certain post-April 1997 contracted-out rights (section 9(2B) rights) that were not accompanied by the actuarial confirmation required under legislation (a section 37 confirmation) are void. For more information on the Court’s decision, please see our legal update.

The Court has now granted permission for the employer to appeal the Court’s decision on the following points:

  • An amendment to section 9(2B) rights made without a section 37 confirmation is void.
  • Prior to April 2013, the requirement to obtain a section 37 confirmation applied to amendments to section 9(2B) rights in respect of both past and future service.

A date for the appeal hearing has not yet been scheduled.

In light of the appeal, we would continue to advise trustees of schemes that may be affected by the decision to wait and see how the situation develops before taking any action. We will cover any developments, including the outcome of the appeal, in future newsletters. The exception to this advice is where the scheme is currently undertaking a transaction such as a buy-in or buy-out, a scheme merger or other bulk transfer or a benefit change project. In those cases, the trustees should speak to their legal advisers to understand the impact that the decision may have on the transaction.