Sharp Minds Communications Ltd v The Pension Regulator

Neutral citation number: [2025] UKFTT 00693 (GRC) First-tier Tribunal (General Regulatory Chamber) Pensions Case Reference: FTT/PEN/2024/0262 Decided without a hearing Decision given on: 16 June 2025 Before

JUDGE SANGER Between

SHARP MINDS COMMUNICATIONS LTD and

THE PENSIONS REGULATOR Appellant Respondent Decision: The appeal is Dismissed.

REASONS 1. This is a reference application in relation to the Respondent’s Fixed Penalty Notice (“FPN”) number 109194908389, issued on 7th June 2024. For convenience the reference application is referred to as “the Appeal”.

2. The Tribunal received and considered an 80 page bundle of documents, and the parties agreed to the matter being determined on the papers.

3. The Tribunal is satisfied that this was a fair and just way to decide the Appeal. © CROWN COPYRIGHT 2024 Relevant law 4. Under the Pensions Act 2008 (the “2008 Act”), employers are required to enrol “job holders” in occupational or workplace personal pension schemes. The Pensions Regulator (“the Regulator”) monitors compliance with these requirements.

5. Under s11 of the 2008 Act, an employer who is subject to automatic enrolment duties must give prescribed information to the Regulator, known as a declaration of compliance. This information, and the time periods in which it must be provided, are prescribed by the Employers' Duties (Registration and Compliance) Regulations 2010 (the “2010 Regulations”): a. Regulation 3(1) requires the employer to provide information to the Respondent within five months of the “staging date” (the date on which automatic enrolment legislation first applies, usually the date on which staff are employed). b. Regulation 4(1) requires the employer to provide re-enrolment information within five months of every third anniversary of the staging date.

6. Under s35 of the 2008 Act, the Regulator can issue a Compliance Notice if an employer has contravened one of more of its employer duties. A Compliance Notice requires the employer to take certain steps in order to comply with these duties. It will usually specify a date by which this must be done.

7. The Regulator can issue a FPN if an employer has failed to comply with a compliance notice (s40 of the 2008 Act). This requires the employer to pay a penalty within a specified period. The amount of a fixed penalty is £400, set by regulation 12 of the 2010 Regulations.

8. The Regulator sends notices by post to an employer’s “proper address” (s303(3) (c) of the Pensions Act 2004 (the “2004 Act”)). The registered office or principal office address is the proper address on which to serve notices on a body corporate, as set out in s303(6)(a) of the 2004 Act (applied by s144A of the 2008 Act). Under regulation 15(4) of the 2010 Regulations, there is a presumption that a notice is received by a person to whom it is addressed. This includes compliance and fixed penalty notices issued under the Act.

9. An employer can make a reference to the Tribunal in respect of the issue of a notice and/or the amount of the penalty payable under the notice (s44 of the 2008 Act). This is only permitted if the Regulator has reviewed the notice or if an application for a review has been made to the Regulator under s43. Under s103 (3) of the Pensions Act 2004, the Tribunal must then “determine what (if any) is the appropriate action for the Regulator to take in relation to the matter referred to it.” The Tribunal must make its own decision on the evidence presented to it (which may be different from the evidence presented to the Regulator). In considering a penalty notice, it is proper to take “reasonable excuse” for compliance failures into account (Pensions Regulator v Strathmore Medical Practice [2018] UKUT 104 (AAC)).

10. In an appeal, the burden of proof rests with the Appellant. The relevant standard of proof is the balance of probabilities.

11. On determining the reference, the Tribunal must remit the matter to the Regulator with such directions (if any) as it considers appropriate. The Appeal 12. There is no dispute that the Appellant company is an employer, with duties to enrol employees in a relevant pension scheme.

13. The Respondent’s case is that the Appellant was required to re-declare compliance with its Employer Duties on 2nd April 2024 and that it failed to do so.

14. On 11th April 2024, a Compliance Notice was issued, directing the Appellant to declare compliance by 22nd May 2024.

15. No such declaration was received.

16. The Fixed Penalty Notice, for £400, was subsequently issued on 7th June 2024. The Appellant was directed to complete the declaration and pay the fine by 5th July 2024.

17. A review was requested on 11th June 2024 and, on 20th June 2024, the FPN was upheld by the Respondent.

18. The Appellant filed its appeal with the Tribunal on 18th July 2024. The Appellant argued that: a. the Compliance Notice had not been received and no correspondence prior to the FPN was received by the Appellant; b. the Respondent ought to have communicated with the Appellant by email as well as by post; c. the Appellant’s pensions administrator had also not received any correspondence relating to the duty to confirm compliance from the Respondent.

19. In its response to the appeal, the Respondent submitted that: a. the notice was properly served to the company’s registered address, as were three reminder letters; b. c. it is well established that the Respondent is entitled to rely on the presumption of service of the statutory notices; this is a rebuttable presumption, which the Appellant has failed to overturn; d. an assertion that the notice was not received is not enough (following London Borough of Southwark v (1) Runa Akhter v (2) Stel LLC 2017 UKUT); e. if more than a bare assertion has been raised, there is no credible evidence that is enough to prove that the assumption of service has been rebutted; f. although it issues reminders, there is no legislative requirement on the Respondent to make employers aware of their legal duties. The obligation to ensure that business is carried out lawfully and in compliance with the relevant regulations rests with the Appellant. The evidence 20. I read, and took account of, the bundle as described.

21. I note that the letters, as were the subsequent notices, were addressed to the Appellant at an address which was used by it in its GRC1 and which accords with the record of the registered address held at Companies House.

22. The Appellant had provided no witness evidence in respect of the non-receipt of the compliance notice. Discussion and issues 23. In order to determine this appeal the Tribunal needed to consider the following questions: a. Were the notices properly served? b. If so, did the Appellant have a reasonable excuse for non-compliance with the notice?

24. In coming to this decision I am bound by the burden of proof.

25. The Respondent is indeed entitled to rely on the rebuttable presumption that the notices were served.

26. The Appellant has made an assertion in its appeal form that the relevant correspondence was not received. It has not, however provided any witness evidence as to (for example) how post is treated when it arrives at the registered address and what enquiries were made once it came to light that the relevant correspondence had not been brought to the attention of the directors.

27. I therefore find that I am unable to conclude, on the balance of probabilities, that the notices were not delivered. I find that the Appellant has not overturned the presumption of service and therefore that the Compliance Notice was properly served by the Regulator.

28. The Appellant provided no evidence to suggest that there was a reasonable excuse for non-compliance, other than to suggest that it had not received the relevant documentation.

29. It is incumbent on employers to ensure that their businesses are compliant in this area, regardless of any reminders received or not received from the Regulator. The Appellant had previously complied with its duties, which suggests that it was aware of them.

30. I do not, therefore, find that there is any reasonable excuse for the Appellant’s failure to comply with its obligations. Conclusion 31. The Fixed Penalty Notice is upheld and the matter is remitted to the Respondent. No further directions are required. Signed: Judge Sanger Date: 12th June 2025 5