JAG Training Limited v The Pensions Regulator

JAG Training Limited ('the Employer') challenges an Escalating Penalty Notice ('EPN') issued by the Respondent ('the Regulator') on 16 August 2023 under Notice number 249477921509.

On 20 December 2023, the Employer requested a review. The Regulator noted the request was out-of-time but conducted a review on its own initiative. On 4 January 2024, the Regulator notified the Employer that the EPN was confirmed.

On 7 February 2024, the Employer appealed to the Tribunal, seeking an oral hearing.

The Employer's appeal grounds are:

The Employer asks for reconsideration of the Regulator's decision to uphold the penalties and instead to cancel them.

In its response dated 13 May 2025, the Regulator opposed the appeal on the basis that the Employer has provided no evidence to overturn the statutory presumptions of service, delivery and receipt of the EPN, and none of the above grounds amount to a reasonable excuse for its non-compliance with the Unpaid Contributions Notice (UCN) which led to the EPN.

There have long been issues with the Employer's postal address. For many years, Nos. 12-14 Newmarket Green, Eltham SE9 were one property. Now they are separate properties, there is no dedicated mailbox for the Employer's ground floor premises (at No. 12) which has a shutter covering the entire frontage. Accordingly, mail addressed to the Employer is sometimes delivered to the flat upstairs (No. 12A) and sometimes to the unit closed for several years (No. 14). There is a pharmacy in between at No. 13.

Regular postal staff are aware of delivery difficulties, but relief staff are not.

The Employer contacted the Regulator more than once about these issues:

As a result of these communications, the Regulator was on notice that, since the pandemic, the Employer's staff have been working remotely so the principal office is not regularly occupied.

The Regulator never indicated that its request for email communication would not be accommodated. Indeed, the Regulator did communicate with the Employer via email - for example its email reminder about the EPN on 3 October 2023 - yet sent the Notices themselves by post. However, the Employer does not dispute that the Regulator is statutorily entitled to serve notices by post.

As advised by Royal Mail, the Employer has submitted an application for adjustments which have been in place since January 2026.

Between May and August 2023, an Unpaid Contributions Notice ('UPN'), Fixed Penalty Notice ('FPN') and EPN were all sent by post to the Employer but none were received.

The Regulator's email on 3 October 2023 alerted the Employer for the first time that escalating penalties were accruing, by then amounting to £5,000. The Employer responded immediately and engaged with the Regulator.

The Employer submits that on the balance of probabilities, the Notices were not received - and as the Regulator was repeatedly advised by the Employer of unreliable postal deliveries, the presumptions of delivery and receipt are rebutted.

The Employer does not invite the Tribunal to depart from the Kamau case, but this case is factually different because here there is documented unreliability of post by repeated emails to the Regulator which therefore had actual knowledge of the postal difficulties.

Even if, technically, the EPN was 'received', in this case there is reasonable excuse because written notice was repeatedly given to the Regulator:

The EPN should be revoked in the interests of fairness and proportionality.

The Employer does not challenge issue of the EPN, only receipt.

The Regulator did not seek service via email under section 304(6) Pensions Act 2004, so was entitled to rely on section 303 of the same Act to send Notices by post.

There is no evidence in this case that the Regulator agreed to serve any Notices on the Employer by email. Since Notices are sent to employers by an automated process, to send them by email would require manual intervention.

The Regulator has no record of an email in December 2021 as the Employer claims: no evidence of it is included in the bundle or was produced at the hearing.

The Regulator relies upon the statutory presumptions of service and receipt in section 144 of the Pensions Act 2008; section 303(6)(a) of the Pensions Act 2004; and Reg. 15(4) of the Employers' Duties (Registration and Compliance) Regulations 2010.

The EPN was correctly addressed and sent to the Employer's registered office.

No evidence has been provided to support the Employer's assertion that the EPN was not delivered, nor detail or evidence as to how its registered address is physically divided.

The Regulator does not have to provide evidence of delivery: the burden of rebutting the presumption of delivery lies on the Employer.

The Regulator does not use recorded or other tracked delivery methods to issue Notices because intended recipients could too easily refuse delivery.

The Employer made no alternative arrangements for receipt of post despite its assertion that its current registered office address had been problematic for some time.

The appeal should be dismissed as the Employer has provided no evidence to rebut the presumptions of service and therefore has no reasonable excuse for its non-compliance which led to issue of the EPN.

Based on the written and oral evidence, the Tribunal finds the following facts proved on the balance of probabilities:

Because the Employer does not challenge that the EPN was issued, the only dispute in this case is whether the EPN was 'received'.

While the Tribunal accepts that the Employer emailed the Regulator more than once to explain that since COVID the Employer's office is rarely occupied and has no mail box, there is no evidence of an explicit request by the Employer for the Regulator to send all future communications via email, nor that the Regulator ever agreed to depart from its usual practice of sending Notices by post.

Because the Regulator did not expressly respond to the Employer's reported problems with postal reliability, and some communications with the Regulator did take place via email, the Employer seemingly assumed that the Regulator was willing to send all communications by email.

Given the chronology of the Employer's purported email requests (see paragraph 8 above), the Employer was - or should have been - aware by late 2022 that the Regulator had not agreed to communicate with the Employer (only) via email: between June and September 2022, the Regulator sent to the Employer by post three Notices, culminating in an Escalating Penalty Notice.

The Tribunal considers it important to note that the Pensions Act 2004 gives the Regulator the choice to serve Notices by post. Because using post rather than email triggers the statutory presumptions of issue, delivery and receipt, use of post is understandably the Regulator's preferred option - and, in the Tribunal's judgment, should be assumed to be the Regulator's default method of issuing Notices in the absence of its express agreement or its own request to the contrary.

On the Employer's own version of events, unreliability in receiving post at the registered office address was a longstanding issue. However, no documentary evidence of this was provided to the Tribunal apart from the Employer's own emails and witness statement.

Nor was any evidence produced to substantiate the Employer's claims that (a) 'this ongoing issue has been formally raised with delivery providers' or (b) a recent 'application' to the Post Office had been made and 'adjustments' in place since January 2026.

Strikingly, however, in oral evidence, the Employer told the Tribunal that because the business needed a physical address for OFSTED purposes, the Employer's address for OFSTED was changed to the director's home address. The Tribunal saw no evidence of a similar approach being adopted to recognise the Regulator's use of a physical postal address for the service of Notices.

All company directors should understand the purpose of a registered office address, the details of which are publicly available via the Companies House website: it is to enable anybody, whether a public body or other body needing to contact the company with important information, to have a reliable means of doing so.

Under section 86 of the Companies Act 2006, a company must ensure that its registered office is at all times an "appropriate address". The section provides that appropriate address means one where "a document addressed to the company and delivered there by hand or by post would be expected to come to the attention of a person acting on behalf of the company". Failing to comply with this requirement without reasonable excuse is a criminal offence on the part of the company and every company officer who is in default.

If the Employer is correct that there have been long-standing issues with post brought or sent to the registered office, then section 86 may have been breached.

In any event, it is the responsibility of the directors of the Employer to ensure that post sent to its registered office comes to their attention. Far from this, the Employer's evidence suggests that such post has not just once but on several other occasions failed to come to directors' attention.

The Tribunal notes that before the EPN under challenge in this appeal, the Employer had recently experienced other Notices from the Regulator reportedly failing to come to the Employer's attention. This resulted in a large escalating penalty which - though the Regulator took no further action in that case - should have alerted the Employer to the urgent need to rectify its postal issues. However, the Tribunal has seen no evidence that the Employer took any steps as a result of that experience to ensure that post sent to its registered office reliably came to its attention, or that its address was 'appropriate' under section 86 or, if was not, that it changed its registered office address.

In short, the Employer has provided no evidence sufficient to overturn the statutory presumptions that a notice correctly addressed to a company's registered office is both delivered and received at that address. As Judge O'Connor said at paragraph 22 of his decision in the Kamau case, where notices have been sent by the Regulator 'to the proper address...even though they did not reach the hands of [the director], the appellant has not rebutted the presumption that the notices were, as a matter of law, received.'

In this case, the Employer later made up the unpaid contributions (for the period 6 December 2022 to 5 April 2023) which had led to the issue of the EPN. But late compliance does not excuse earlier non-compliance: the deterrent effect of penalty notices would be greatly diminished if notices were revoked once compliance was eventually achieved. In this case, the Employer was several months overdue with its obligations to make pension contributions (for the second time in under a year).

This, coupled with the Employer's overdue request for the Regulator to review the EPN, and then its late appeal to the Tribunal, indicates that far from 'diligently' adhering to all regulatory duties and deadlines, as far as auto-enrolment duties are concerned, the Employer's recent conduct - while not wilful or intentional - shows a pattern of non-compliance and delayed responses.

In the Tribunal's judgment, the Employer's repeated notification to the Regulator of its postal difficulties and its unacknowledged (and inexplicit) preference for email, fall far short of rebutting the statutory presumptions of delivery and receipt of correctly addressed communications sent to the registered office.

It is the employer's responsibility to ensure that post correctly so addressed is capable of delivery and would be expected in the ordinary course to come to the attention of the company's officers. According to the Employer, its failure to receive the EPN was not an isolated incident but one of several instances of Notices sent by the Regulator not being received.

Quite apart from the UCN, FPN and EPN which are regulatory tools to ensure compliance with employers' auto-enrolment duties, the Employer is obliged to ensure timely payment of pension contributions. In this case, the contributions were paid late.

Overall, the Employer has given no reasonable excuse for failing to comply with the EPN (or the UCN and FPN which preceded it) or pay pension contributions on time.

In all these circumstances, the Tribunal considers there is no good reason to reduce the accrued EPN penalty of £5,000. Given the history of the Employer's non-compliance with regulatory notices and obligations to make timely pensions contributions, the Tribunal does not consider the penalty unfair or disproportionate.

If paying this penalty would cause financial hardship, the Employer can approach the Regulator to discuss possible payment terms.

The Tribunal accordingly concludes that there is no basis on which to revoke the FPN; it confirms the EPN and remits the matter to the Regulator. No directions are needed.