In the recent case, Pi Consulting (Trustee Services) Ltd v The Pensions Regulator (and Others), the High Court ruled that the suspected pension liberation schemes were 'occupational pension schemes' within the statutory definition.
It means they fall under the jurisdiction of the Pensions Regulator and, as such, the Pensions Regulator had power to appoint independent trustees to the schemes.
An ancillary effect of the court's conclusion is that member transfers to the schemes in question are unlikely to constitute unauthorised payments, so members and transferring schemes would not be liable for tax charges in consequence of transferring to the schemes.
This does of course depend on the outcome of any future litigation regarding the nature of these schemes. It was agreed between the parties that the court would not rule on whether the schemes were fraudulent pension liberation schemes.
Further clarity around the nature of such schemes is required. In particular, trustees of genuine occupational pension schemes continue to face the challenge of balancing a member's statutory right to a transfer value with the Pensions Regulator's guidance on pensions liberation which currently places trustees at the vanguard of industry attempts to prevent liberation activity from taking place.
HMRC has indicated - www.hmrc.gov.uk/news/pensionliberation.htm - changes to its processes in an attempt to help attack pensions liberation and make it more difficult for schemes to be set up as registered pension schemes.
From 21 October 2013, HMRC will no longer confirm that a new scheme is a registered pension scheme on submission of the online form. More detailed investigations will be done first, meaning new schemes will not be able to undertake any activities restricted to registered pension schemes until registration is confirmed.
Additionally, if HMRC is asked to confirm a receiving scheme's status as a registered scheme in relation to a transfer request, HMRC will only provide this if the receiving scheme is registered and there is no information held by HMRC suggesting the scheme has been set up to, or is being used to, enable pensions liberation. If these conditions are not met, HMRC will notify the transferring scheme.
For more information, please contact Suzanne Burrell or your usual pensions contact.