Tribunal holds no exceptional circumstances prevented Regulator from imposing penalty notice for failure to prepare chair’s statement

There is a legal requirement for trustees of DC schemes to prepare an annual governance statement, signed by the chair of trustees, within seven months of the end of each scheme year. This is referred to as the "chair's statement".  In Caldwell (Trustee of the Smith & Wallace & Co 1988 Pension Plan) v Pensions Regulator [2024] the First-tier Tribunal dismissed an appeal by a trustee of a DC scheme against the imposition of a Regulator’s penalty notice for failing to prepare a chair's statement.

The Regulator submitted that it had no option but to issue a penalty notice in relation to a failure since the use of the word "must" in the relevant legislation allowed no discretion, no matter how compelling the circumstances.   

The tribunal did not accept that the "mere use of mandatory language … excludes from consideration any explanation offered for the breach, however compelling". It considered that Parliament's intention was that a penalty should ordinarily follow a breach, but that the Regulator should refrain from penalising trustees where "wholly exceptional circumstances fully explained and excused their non-compliance and imposition of a penalty would be manifestly unjust".   

However, the tribunal accepted that in this case the trustee had failed to present valid mitigating circumstances and therefore the Regulator was obliged to impose the penalty notice. There was also no basis on which the Regulator could properly have revoked the penalty notice under appeal.