Jigsaw Business Group Limited v The Pensions Regulator

This is a reference against a fixed penalty notice (“FPN”) issued under section 40 of the Pensions Act 2008 (“the Act”) and Escalating Penalty Notice (“EPN”) under section 41 of the Act by the Pensions Regulator (“the Regulator”). The Regulator has invited the Tribunal to strike out the reference under Rule 8(2)(a). This is on the basis that the Tribunal does not have jurisdiction because no review has been undertaken by the Regulator.

Under Rule 8(2) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009, the Tribunal “must strike out the whole or a part of the proceedings if the Tribunal - (a) does not have jurisdiction in relation to the proceedings or that part of them; and (b) does not exercise its power under rule 5(3)(k)(i) (transfer to another court or tribunal) in relation to the proceedings or that part of them”

Under section 43(1) of the Pensions Act 2008, the Regulator may review a fixed penalty and escalating penalty notice, “(a) on the written application of the person to whom the notice was issued, or (b) if the Regulator otherwise considers it appropriate”. The prescribed period for a written application for a review under section 43(1)(a) is 28 days from the date of the notice.

Under section 44 of the Pensions Act 2008, a person can make a reference to the Tribunal in respect of the issue or amount of a penalty notice. The conditions are that the Regulator has completed a review under section 43, or “the person to whom the notice was issued has made an application for the review of the notice under section 43(1)(a) and the Regulator has determined not to carry out such a review” (section 44(2)(b).

I have considered the background information provided by both parties.

The Regulator issued the Appellant with a Compliance Notice on 15 February 2023, an FPN on 14 April 2023 and an EPN on 16 May 2023. The Appellant requested a review of the FPN and EPN on 26 June 2023 and again on 14 July 2023. The Respondent declined to conduct a review because it had been received outside the 28-day time frame for doing so and declined to conduct a review on its own initiative.

The Appellant made a reference by way of form T98 dated 15 August 2023. Its grounds for appeal gave the following reasons why the decision was wrong.

The Regulator applied by way of form GRC5 dated 16 March 2026 for the reference to be struck out under rule 8(2)(a) as the Tribunal lacks jurisdiction. I gave directions on 26 March 2026 that the Appellant should provide any representation by 13 April 2026. The Appellant has not responded, but I am satisfied that that the Appellant has had an opportunity to comment on the proposed striking-out under Rule 8(4).

The Regulator says that the Tribunal does not have jurisdiction because the conditions in section 44(2) of the Pensions Act 2008 are not met. The Regulator refers to the decision in Mosaic Community Centre Limited v Pensions Regulator (PEN/2015/0004) as showing that the Tribunal only has jurisdiction when a review under section 43 has been undertaken by the Regulator. The Regulator says there was no review in this case. There was also no refusal to carry out a review within the meaning of section 44(2) because the Appellant had not requested a review in the prescribed 28-day period which is set down in Regulation 15(1) of the Employers’ Duties (Registration and Compliance) Regulations 2010. The Regulator therefore says that the necessary conditions in section 44 to permit a reference to the Tribunal are not met.

The Regulator relies on the presumptions of service set out in section 303(6)(a) of the Pensions Act 2004 and Regulation 15(4) of the Regulations for the service of the FPN and EPN. It has provided evidence to show that the last known address of the Appellant was the registered office recorded at Companies House, which was the address to which the notices were sent. The Appellant does not dispute that the address to which the documents were sent is the registered address.

I considered the Upper Tribunal authority in Philip Freeman Mobile Welders Ltd v The Pensions Regulator [2022] UKUT 62 (AAC). This confirms that the presumption of service is not irrebuttable, and the rebuttable presumption of service applies to the question of whether a notice has been received for the purposes of the time limits for a review. Where there is a dispute about receipt of notices which may affect the relevant time limits, the evidence should be considered by the Tribunal.

The Appellant says that it did not receive the FPN, EPN or earlier CN. The Appellant said it was unable to comply with the notices because it did not receive them.

The Appellant has not provided any evidence of circumstances that might have prevented delivery, simply saying that the registered office has a mail facility and the Appellant has its own independent post box from which a director regularly collects mail, but that no one has seen the correspondence or notices.

The Regulator argues that the Appellant’s bare assertion of non-receipt is not sufficient to overturn the presumption of service, as was the finding of the Upper Tribunal in the case of London Borough of Southwark v Akhtar 2017 UKUT 150, where the Upper Tribunal stated at paragraph 82 that mere assertion of non-receipt was insufficient to rebut the presumptions of service provided by s.7 of IA78. This principle has been adopted by the First Tier Tribunal (General Regulatory Chamber), one case example being Keith’s Rubbish Clearance Limited v The Pensions Regulator (PEN 2020 0203) (judgment dated 8 April 2021) (‘Keith’s Rubbish Clearance’). In Keith’s Rubbish Clearance, Judge Hunter found that “the Regulator is entitled to rely on the strong statutory presumptions...The Employer has made a bare “paper” assertion of non-delivery. That falls far short of the proof necessary to overturn the presumption” (paragraph 32).

Having reviewed all the evidence before the Tribunal, I find that the Appellant has not put forward any case that would potentially rebut the presumption of service because, at the time the FPN and EPN were issued, it was issued to the Appellant’s registered office. This means there is no evidence about receipt of the notice in this case that needs to be tested at a hearing before the First-Tier Tribunal.

It is clear from the information provided by both parties that no request for a review of the FPN was made within the 28-day time limit. The Regulator refused to conduct any review for this reason. This means that the conditions of Section 44 of the Pensions Act are not met.

The Tribunal does not have jurisdiction to consider this reference and so it is struck out under Rule 8(2)(a).