Virgin Media – Pensions Regulator Guidance for Trustees on Remediation

The Pension Schemes Bill (the Bill) includes a legislative remedy for issues arising out of the Virgin Media judgments. The remedy will enable trustees to obtain retrospective actuarial confirmation that historic changes to contracted-out benefits met the relevant statutory requirements. For more information, please see our Legal Update, Virgin Media – Details of Legislative “Fix” Published.

The Pensions Regulator (TPR) has now published guidance on remediation for trustees of pension schemes affected by the Virgin Media judgments. The guidance is aimed at reminding trustees of their statutory duties and TPR’s expectations of the standards for achieving compliance. The key points are summarised below.

• Deciding whether to use the legislative remedy: Trustees should decide whether their scheme is affected by the Virgin Media judgments and, if so, whether to use the legislative remedy. They will normally need legal advice, and may also need input from their actuary and administrator. It may be helpful to discuss the position with the employer, and trustee training may also be beneficial.
• Instructing the actuary: If trustees decide to use the legislative remedy, they must provide a written instruction to the actuary for the purposes of obtaining the retrospective confirmation. The instruction should specify the alterations to be considered, and whether multiple alterations that occurred at the same time should be assessed together or separately. Trustees may need legal assistance to prepare this instruction.
• Timescales: There is no deadline in the Bill for using the legislative remedy. Trustees should agree a practical and realistic timetable with the actuary and the employer, taking account of their scheme’s circumstances. Preparation of a written instruction to the actuary can start now even though the Bill has not received Royal Assent.
• Information-gathering: Trustees should confirm what information the actuary will require to complete their assessment, although TPR does not expect trustees to carry out exhaustive searches.
• Where retrospective confirmation cannot be provided: If the actuary is unable to provide the required retrospective confirmation, trustees should seek legal advice on appropriate next steps. The actuary’s reasons and the scheme’s specific circumstances should be taken into account.
• Reporting to TPR: Trustees do not need to report their remediation actions to TPR.
• Member communications: As good practice, trustees may wish to prepare a reactive response to member queries on this issue to ensure queries are handled clearly and consistently.
• Practical tips: Trustees are expected to make a reasonable decision on whether to use the legislative remedy by considering the circumstances impartially and taking account of relevant facts. These include considering which alterations required actuarial confirmation and, if the confirmation cannot be found easily, weighing up the cost and benefit of tracking down evidence versus moving directly to remediation.

Next Steps

Many trustees of schemes affected by the Virgin Media judgments paused work in this area pending the legislative remedy coming into force. While it is not certain when the Bill will receive Royal Assent, this is likely to be in April. In light of this and TPR’s guidance, we will be contacting our clients to discuss their scheme’s circumstances and potential next steps.