Channel Tunnel Group Pension Fund · CAS-53574-F3Y2 — Pensions Ombudsman determination

CAS-53574-F3Y2

Ombudsman’s Determination Applicant: The Trustees of the Channel Tunnel Group Pension Fund (the Trustees)

Scheme: The Channel Tunnel Group Pension Fund (the Fund)

Respondent: The Board of the Pension Protection Fund (the Board)

Outcome

Referral summary

Background On 23 October 2019, the Board issued an invoice (10012891-20-03) in respect of the Funds’ levy for the year 2019/20. The calculation for the Fund’s risk-based levy had referred to the 2016 Accounts for the May 2018 employer insolvency score.

Under Section 175(5), Pensions Act 2004, the Board is required to publish an annual determination of the rules relating to the calculation of the levy for that year (the Levy Rules). The provisions relating to the calculation of the insolvency risk for an employer or parent company are set out in Part E and the Insolvency Risk Appendix. Relevant extracts from the Levy Rules for 2019/20 are provided in the Appendix to this Opinion.

The Trustees submitted a review application on 15 November 2019. This asked that the Board recalculate the May 2018 employer insolvency score by reference to Getlink SE’s 2017 accounts (the 2017 Accounts). The Board issued a review decision on 12 March 2020. It declined to review the Fund’s risk-based levy.

The Trustees submitted a reconsideration application on 8 April 2020. This was considered by the Board’s Reconsideration Committee (the Committee). The 1 CAS-53574-F3Y2 Committee issued its decision on 4 June 2020. The decision is summarised as follows:-

• The Levy Rules did not permit Autorité des Marchés Financiers (AMF) to be used as a source for collecting the 2017 Accounts.

• Because the 2017 Accounts were not publicly available on the AMF website, the accounts could not be considered to have been Filed, as defined in the Levy Rules.

• Even if it were to accept the Trustees’ arguments as to this, the Levy Rules required a data hierarchy to be applied and the 2016 Accounts took precedence.

• The invoice had been correctly calculated by reference to the 2016 Accounts. The 2017 Accounts were not required to be taken into account as at the May 2018 Score Measurement Date, as defined in the Levy Rules.

• The Committee had considered two discretions: Rule B2 and Rule B4. It had concluded that neither were applicable to the Trustees’ application for reconsideration.

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“We will only consider correction requests, not updates. A correction is where, at the relevant deadline, the information was available to the scheme and the levy requirements could, in principle, have been met. We regard an update as where some or all of the information or requirements were obtained/met after the deadline.”

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Grounds on which the reference is made

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Written representation by the Board

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Adjudicator’s Opinion

9 CAS-53574-F3Y2 • Rule E2.2 provided that the Board had instructed Experian to collect such of the data referred to in Rule E2.2(2) as was either Filed with one of the sources referred to in Rule E2.2(3) or available from such other sources as the Board instructed Experian to collect from and use from time to time.

“… the following sources (or any successor entity carrying out the functions of the source named below):

(a) the Higher Education Funding Council for England;

(b) the Certification Officer appointed pursuant to the Trade Union and Labour Relations (Consolidation) Act 1992;

(d) the Homes & Communities Agency.”

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“Experian can only change an Appealable Score when all other provisions of Rules E7.1 – E7.4 have been satisfied and one (or more) of the following applies: … (b) In the case of: (i) matters to be dealt with under these Rules in accordance with Experian’s ordinary course of business … it is data which would normally have been available to, and would normally have been taken into account by, Experian and that lack of access was not related to any action or inaction of any of the following …”

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The Trustees did not accept the Adjudicator’s Opinion and the referral was passed to me to consider. The Trustees provided a supplementary statement which is summarised below. The Board also provided further comment which is summarised below. I have considered the supplementary statement and comment but I find that they do not change the outcome. I agree with the Adjudicator’s Opinion.

Supplementary statement

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Ombudsman’s decision

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“… at the relevant deadline the information was available to the scheme and the levy requirements could, in principle, have been met.”

“… where some or all of the information or requirements were obtained/met after the deadline.”

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In conclusion, I find that the Committee’s decision was reached correctly and the Board is not required to take any further action.

Anthony Arter Pension Protection Fund Ombudsman

30 March 2022

16 CAS-53574-F3Y2 Appendix The Levy Rules for the year 2019/20

“… either:

(a) publicly available on the official website of … Companies House, the Charity Commission, or an Other Permitted Source;

(b) provided to Experian pursuant to Rule E2.3.”

“… the following sources (or any successor entity carrying out the functions of the source named below):

(a) the Higher Education Funding Council for England;

(b) the Certification Officer appointed pursuant to the Trade Union and Labour Relations (Consolidation) Act 1992;

(d) the Homes & Communities Agency.”

“… the final day of any month from and including April 2018 to and including March 2019.”

B2.1 When could data be corrected?

(1) Subject to Rule B2.1(2) and (3), this Rule B2 applies if it appears to the Board that either:

(a) the information supplied for or used in the calculation of the Levies (including information contained in any data Submitted) is incorrect in a material respect;

(b) a notification required by or under a certificate in relation to Contingent Assets has not been duly given; or

(c) a confirmation, certificate or declaration given for the purposes of these Rules was improperly given or contained information which was incorrect in a material respect.

17 CAS-53574-F3Y2 (2) Save for:

(a) information relating to the identity of the Employer or Certified Guarantor; and

(b) information used to calculate an Appealable Score or Monthly Score (or an Appealable Score or Monthly Score itself) in respect of which the manner in which it is said to have been incorrect is not a matter capable of being dealt with through Rule E7,

and without prejudice to Rule E7.8, this Rule B2 does not apply in relation to any information which is used to calculate an Appealable Score or a Monthly Score, or to Appealable Scores or Monthly Scores themselves.

(3) For the purposes of Rule B2.1(1)(a), information is not incorrect where it is correct and legitimate in itself, but it would have been open to the person supplying it to supply some different or additional information which might have caused these Rules to be applied differently.

B2.2 Correction of the data

(1) Where Rule B2.1(1)(a) applies, the Board may calculate the Levies on the basis of information which appears to it to be correct for the purposes of these Rules. Where the Levies have already been calculated … the Board may review and revise the amount of the Levies … but it shall not be under an obligation so to act.

(2) The Board is under no obligation to take into account corrected information merely because the Scheme has been disadvantaged by the failure of the trustees or those acting on its or their behalf to supply correct information at the proper time.”

“B4.1 … the Board may at its discretion take account of information Submitted after any applicable deadline but only in circumstances where it appears to the Board that:

(1) the information was despatched at an appropriate time, but was delayed or lost in transit; or

(2) both:

(a) the provider of the information was prevented from meeting the deadline by the temporary inaccessibility of the PPF website or Exchange, or the interruption of electronic communications, or other (in the opinion of the Board) comparable cause; and

18 CAS-53574-F3Y2 (b) the information was Submitted as soon as reasonably practicable thereafter.”

“E2.1 Data collection and use for Monthly Scores

Monthly Scores and Adjusted Monthly Scores will be calculated in accordance with these Rules by reference to the position as at each Score Measurement Date, using data … which either:

(1) has been collected by Experian under Rule E2.2;

(2) has been provided to Experian under Rule E2.3; …

in each case, by the time stipulated in Rule E2.8.

E2.2 Routine Collection for Monthly Scores

(1) The Board has instructed Experian to collect … such of the data referred to in Rule E2.2(2) … as is either Filed with one of the sources referred to in Rule E2.2(3), or available to Experian from such other sources as the Board instructs Experian to collect and use from time to time …

(2) The data to be collected is:

(a) the Latest Accounts …

(3) The relevant sources are:

(a) Companies House;

(b) the Charity Commission;

E2.3 Voluntary provision of data

Scheme Employers, Ultimate Parents, Group Subsidiaries and trustees may voluntarily provide to Experian the following information …

E2.6 Data hierarchy

(1) Subject to (2) below, in the event that the collection of data in accordance with Rule E2.1 results in conflicting data items, the following hierarchy will be applied to resolve the conflict (and, for the avoidance of doubt, no account will be taken of which source provides the most recent data):

(a) A Company/Charity Source;

19 CAS-53574-F3Y2 (b) any Other Permitted Source …

(d) voluntary provision …

E2.7 Data Quality

Save to the extent expressly set out in these Rules and the Insolvency Risk Appendix, Experian shall apply such data quality procedures and shall resolve conflicts between data items using the same approach that it would adopt in its ordinary course of business from time to time.

E2.8 Timing of data collection and use

(1) Except where (2), (3), (4), (6) or (7) below applies, the Board and Experian will use such data as has either:

(a) been collected or received … and which Experian … has been able to process by the Score Measurement Date in question; or

(b) has been Filed at least one calendar month before the Score Measurement Date …”

“E7.1 What elements of the levy calculation can be appealed to Experian?

Experian can only deal with appeals relating to an Appealable Score …

E7.2 Who can appeal to Experian?

The following can appeal to Experian:

(1) a Scheme trustee in relation to any Appealable Score relating to the Scheme of which he is a trustee; …

(5) the Board

…

E7.4 What are the time limits?

Save where an appeal is made by the Board, Experian can only deal with an appeal if:

(1) either:

(a) it is sent to Experian by email no later than 28 days after the date shown on the notification of the Levies …

(b) it is sent by registered first class post no later than 26 days after the date shown on the notification of the Levies … 20 CAS-53574-F3Y2 (c) the circumstances of a case are such that, in the opinion of the Board, it is reasonable for an appeal to be sent after the end of the period mentioned in (a) or (b) … and the Board confirms this in writing to Experian; …

E7.5 When can Experian change an Appealable Score?

Experian can only change an Appealable Score where all other provisions of Rules E7.1 – E7.4 have been satisfied and one (or more) of the following applies:

(1) Experian did not have access to or did not process data which would otherwise have been used for calculation pursuant to Rule E2.1 and one of the following applies:

(a) That data had been Filed at least one calendar month before the Score Measurement Date; or

(b) In the case of:

(i) matters to be dealt with under these Rules in accordance with Experian’s ordinary course of business …

it is data which would normally have been available to, and would normally have been taken into account by, Experian and that lack of access was not related to any action or inaction of any of the following:

(A) the trustee(s) of the relevant Scheme;

(B) any Employer in relation to that Scheme;

(D) any Ultimate Parent or Group Subsidiary relating to any Employer in relation to the Scheme.

…

E7.8 Statutory Review Rights

For the avoidance of doubt and without prejudice to Rule E7.7, the Board may review an Appealable Score pursuant to section 207 of the Act on the grounds that the decision reached by Experian following an appeal pursuant to this Rule E7 was incorrect.

E7.9 Determination by Board

Experian and the Board may agree that an appeal to Experian is to be determined by the Board.”

Full determination