Moan v HMRC (First-tier Tribunal) – 4 April 2022


Introduction

The First-tier Tribunal has upheld an appeal against the loss of Fixed Protection 2016 (FP16) following the individual’s auto-enrolment (AE) into his new employer’s pension scheme. In reaching its decision, the Tribunal considered both employers’ duties to provide employees with information about AE, and the time limits for opting out of AE.

Background

Mr M had successfully claimed FP16 preserving a lifetime allowance of £1.25m. HMRC withdrew the protection after Mr M notified HMRC that he had inadvertently become a member of his new employer’s pension scheme. FP16 is lost in a number of circumstances, including if contributions are paid to a DC arrangement or a new arrangement is established in respect of the individual.

Mr M had received assurances from his employer that he would not be enrolled into the employer’s pension scheme, but in fact he was automatically enrolled after a purported postponement period. Mr M argued he had not received any of the emails that were sent to him about AE due to various IT issues. Therefore, Mr M was unaware he had joined the scheme until several months later, having gained access to his payslips and noticed that pension contributions had been deducted.

Aware of the conditions which needed to be met to retain his FP16, Mr M had tried to opt out of the scheme. However, the pension provider did not accept the opt-out on the basis that the relevant form was not handed over within one month of his enrolment.

Relevant AE legislation

Employers can postpone AE for up to three months in certain circumstances, provided prescribed information about postponement is given to the jobholder within six weeks of their start date.

Jobholders have one month to opt out after the later of:

  • the date they become an active member of a scheme, and
  • the date they have been given all of the enrolment information required under the regulations.

If a jobholder opts out within the one-month period, their contributions will be refunded and they are treated as never having joined the scheme.

Judgment

The Tribunal found the postponement period stated by the employer was not valid for a number of reasons. Therefore, while the employer had provided certain enrolment information to Mr M this did not include the correct AE date.

In this case, the purported postponement was longer than three months and, in addition, Mr M had not been given the necessary information within the required six-week period. This meant that the correct AE date coincided with the start date of Mr M’s employment.

As Mr M was not told the correct AE date, the one month opt-out period under AE legislation had not started to run. Mr M’s opt-out notice was therefore not out of time. As such, he had submitted a valid opt-out notice and should be treated as never having joined the scheme. On that basis, HMRC was not entitled to withdraw his FP16.

The judge commented that had the enrolment information been correct, he would have dismissed the appeal since he considered the emails sent to Mr M were a valid method of giving him the necessary enrolment information, despite Mr M’s IT issues.

Comment

This case concerned very specific facts in relation to loss of FP16, but is a helpful summary of some of the employer requirements to provide information about AE to jobholders. As the judge commented, the AE regime is “highly prescriptive” and employers should be aware of the strict timeframes for provision of information, particularly in relation to postponement periods.

Although, as an aside, the judge considered email was a valid method of providing information in this situation, this may not always be the case. If employers are aware of issues with email access they should consider providing pensions information by alternative means to ensure their AE duties are satisfied.