Guidance

CA14F Contracted-out decision making and appeals

Published 13 November 2014

Glossary of Terms

This glossary is made up of definitions taken and adapted from various sources. Where it is necessary to the meaning of the guidance, definitions reflect those in legislation.

For ease of reference and consistency with the pensions industry some definitions have been taken in whole, or in part, or adapted from the joint Pensions Management Institute and Pensions Research Accountants Group publication “Pensions Terminology”. Copies of this are available from the Pensions Management Institute.

Earner

An earner construed in accordance with Sections 3, 4 and 112 of the Social Security Contributions and Benefits Act 1992.

Employer

A person, Government Department or public authority who is treated as the employer for the purposes of the Occupational Pension Schemes (Contracting-Out) Regulations 1996.

Trustee

A person or company appointed to carry out the purposes of a trust in accordance with the provisions of the trust instrument and general principles of trust law, or in relation to a scheme which is not set up or established under a trust, the managers or administrators of the scheme.

1. Introduction to this manual

About this manual

1.1 This manual gives general guidance only and should not be treated as a complete and authoritative statement of the law.

Comments on our service

1.2 We welcome any comments you have on how to improve our service to all customers, including your future requirements and expectations. You can let us know, by phone or by writing to:

HM Revenue and Customs
National Insurance Services to Pensions Industry
Benton Park View
Newcastle upon Tyne
NE98 1ZZ

Telephone: 03000 553 567

Fax: 03000 553 603

1.3 We would also like to hear from you if you think you have received a particularly good service. However, if you have a complaint, we will do our best to settle it quickly and to your satisfaction.

Data Protection

1.4 HM Revenue and Customs is a Data Controller under the Data Protection Act. We hold information for the purposes specified in our notification made to the Data Protection Commissioner, and may use this information for any of them.

We may get information about you from others, or we may give information to them. If we do it will only be as the law permits, to check accuracy of information, prevent or detect crime, or protect public funds.

We may check information we receive about you with what is already in our records. This can include information provided by you as well as by others such as other Government Departments and agencies and overseas tax authorities. We will not give information about you to anyone outside HM Revenue and Customs unless the law permits us to do so.

Contacts

1.5 Any enquiries relating to this guidance should be sent to

HM Revenue and Customs
National Insurance Services to Pensions Industry
Benton Park View
Newcastle upon Tyne
NE98 1ZZ

Telephone: 03000 553 567

Lines are open 8am to 5pm Monday to Friday. Calls will be charged at local rates.

1.6 The information and instructions in this manual also apply to Northern Ireland.

Background to Contracted-Out Decision Making and Appeals

2.1 This guidance relates to decisions made by the HM Revenue and Customs National Insurance Contributions Office under Sections 8, 9 and 10 of the Social Security Act 1998.

2.2 Formal notifications of decisions relating to contracting-out issues, for example, the issue, cancellation and variation of a contracting-out certificate carry the right of appeal to an independent Appeal Tribunal.

2.3 Informal notifications, for example Guaranteed Minimum Pension statements, are classed as outcome decisions.

2.4 Outcome decisions do not attract the right of appeal, however you have the right to query any discrepancies. Where, after investigations are exhausted, a query cannot be resolved and it is still disputed, a formal decision will be issued which will carry the right of appeal to an Appeals Tribunal.

If you disagree with a decision

2.5 If you disagree with a decision you should contact us within one calendar month of the date of the decision, requesting a mandatory reconsideration giving your reasons for disputing the decision, together with any new evidence or information.

2.6 You will be advised whether, in light of what you have said or any evidence you have provided, a revised decision can be issued. If that is the case a revised decision will be issued.

2.7 If, however, the decision cannot be revised, you will be advised of this, then, if you want to appeal against the decision your appeal must be received within one calendar month of the date of this notification.

2.8 If you want more information about the decision you should contact the person who made the decision and ask for an explanation.

3. Appeals

Right of appeal

3.1 You have the right of appeal against a decision to an Appeals Tribunal. If you want to do this you must send your appeal direct to Her Majesty’s Court and Tribunal Service (HMCTS), within one calendar month of receiving your mandatory reconsideration notice 3.

When should you appeal?

Time limit

3.2 You have one calendar month from the date of the mandatory reconsideration notice in which to appeal.

3.3 Do not delay submitting your appeal because you need further time to gather information to support your appeal. Lodge your appeal and let us know how much time you will need to provide this information.

Late appeals

3.4 If you appeal outside the time limit and can satisfy the person who made the decision that there were good reasons for this your late appeal may be accepted.

3.5 If your late appeal cannot be accepted The Tribunals Service will consider your application and advise you of the outcome. Their decision is final and is not subject to appeal.

Who can appeal?

3.6 You can appeal against a decision if you are:

• a member of the pension scheme
• a trustee or manager of the scheme
• an employer of earners in an employment to which the scheme applies.

How to appeal

3.7 If you want to appeal against the decision you should do so by writing to Her Majesty’s Court and Tribunal Service (HMCTS) within the time limit, explaining that you want to appeal.

4. The Tribunals Service

4.1 The Tribunals Service handles the administration of appeals and arranges for appeals to be heard.

4.2 We will send you a “pre-hearing” enquiry form, which must be completed and returned to The Tribunals Service in the enclosed pre-paid envelope. The Tribunals Service must receive the form within 14 days of the date of issue. If the form is not received within this time limit it will be assumed that you do not wish to continue with your appeal and it will be brought to an end without a hearing.

4.3 The pre-hearing enquiry form asks whether you and/or your representative will be attending the hearing or whether you are content for the appeal to proceed without an oral hearing.

Withdrawing an appeal

4.4 You can withdraw your appeal at any stage up until the Appeals Tribunal considers the appeal. If you decide to withdraw your appeal you must notify The Tribunals Service. You can either tick the box on the pre-hearing enquiry form or send a letter. You can also withdraw your appeal verbally at an oral hearing.

You do not need to give any reason for withdrawing your appeal.

4.5 If you withdraw your appeal that will bring the matter to a close and no further action will be taken.

Misconceived appeals

4.6 If, in the opinion of the person who made the original decision against which you are appealing, your appeal has no reasonable prospect of success you will be given the reason why this is so. You will also receive a pre-hearing enquiry form.

4.7 The pre-hearing enquiry form asks you to provide reasons why you think your appeal can succeed either in writing or by requesting an oral hearing so that you can be present to explain your reasons. The prehearing enquiry form should be returned to The Tribunals Service.

4.8 If The Tribunals Service does not receive the pre-hearing form within 14 days of the date of issue the appeal may not be heard.

4.9 When you return the pre-hearing enquiry form a legally qualified tribunal member will consider the case and decide whether there are sufficient grounds for the appeal to be heard.

4.10 Where you are advised that there are insufficient grounds for the appeal to be held and you disagree with this notification you may inform the clerk to the Appeals Tribunal that you want a tribunal to determine whether the appeal is misconceived, as a preliminary issue at an oral hearing.

4.11 You will be advised of the decision from the oral hearing.

Appeal hearing

4.12 The Tribunals Service will give you at least 14 days notice of the date of the hearing. If you had originally indicated that you and/or your representative wished to attend the hearing but are unable to attend on that date you must inform The Tribunals Service as soon as possible.

4.13 Hearings can only be postponed in exceptional circumstances.

Composition of Appeal Tribunals

4.14 The Appeal Tribunal may consist of one, two or three members chosen by the President of Appeals Tribunals from the panel of persons appointed by the Lord Chancellor. At least one member must be legally qualified, so where a tribunal consists of only one member, that member must be legally qualified.

4.15 Where the appeal is complex, the Tribunals Service will invite an expert witness, who has knowledge of contracting-out procedures, to attend the Tribunal to provide advice and guidance.

4.16 Where the tribunal consists of more than one member, the President nominates one of the members as a chairman. This will usually be the legally qualified member. Decisions in these tribunals are made by a majority of votes.

4.17 After the appeal has been heard you will be notified, in writing, of the tribunal’s decision as soon as possible.

5. Application for leave to appeal to The Office of Social Security and Child Support Commissioners (The Commissioner)

5.1 If you disagree with the Appeal Tribunal’s decision, you have the right to appeal to The Office of Social Security and Child Support Commissioners (The Commissioner) but only on a point of law and with the approval of the chairman of the Appeal Tribunal.

5.2 An application for leave to appeal to The Commissioner can be made in writing to the chairman of the tribunal at the relevant Tribunals Service office. Where the tribunal announces its decision orally after a hearing, an application for leave to submit a further appeal can be made orally at the hearing.

5.3 The application should cover details of the grounds on which it is made. The Tribunals Service must receive it within one calendar month of the date on which a copy of the record of the full decision was issued.

5.4 A copy of all documentation relating to the original decision and the tribunal decision will be passed to The Commissioner to consider.

5.5 You will be notified of The Commissioner’s decision as soon as possible.

6. Appeals to the Court of Appeal, Court of Session or Court of Appeal in Northern Ireland

6.1 An appeal against a Commissioner’s decision on a question of law can only be made to either:

• The Court of Appeal in England and Wales
• The Court of Session in Scotland, or
• The Court of Appeal in Northern Ireland

6.2 An appeal to the Court of Appeal in England and Wales, the Court of Session in Scotland or the Court of Appeal in Northern Ireland can be made only:

• with the leave of The Commissioner who made the decision
• with the leave of The Chief Commissioner in certain cases, or
• if The Commissioners refuse leave, with leave of the appropriate court

Time limit

6.3 The application for leave to appeal to the Court of Appeal in England and Wales, the Court of Session in Scotland or the Court of Appeal in Northern Ireland must be received within one calendar month from the date of The Commissioner’s decision being issued.

7. Judicial Review

7.1 The High Court has legal authority to decide questions affecting people’s rights.

7.2 The decision-making authorities are subject to Judicial Review, that is the controlling jurisdiction of the High Court.

7.3 A Judicial Review differs from an appeal. An appeal considers a case with the aim of substituting a correct decision for a wrong one. A Judicial Review considers a case to find out if a decision under review is wrong in law. If there has been an error of law the High Court quashes the original decision.

7.4 The High Court can quash a Commissioner’s decision by Judicial Review only if there are compelling reasons in the interest of justice.