The interests of the UK’s private sector defined benefit (DB) pension scheme members, and the security of their vested benefits (ie the ones they are entitled to keep), were weakened this week. The Pensions Regulator, slow to act in many cases, bureaucratic and inconsistent in others, did at least have a coherent set of objectives which allowed it to focus on reducing the fragility of the pensions system overall. However this is not an example of how the Government wants its regulators to behave it seems. The announcement in the Budget in March that the Regulator is to get an additional statutory objective to encourage “sustainable growth” amongst scheme sponsors, following sustained lobbying from the National Association of Pension Funds and the Confederation of British Industry, led to a swift consultation on, and acceptance of, the proposals. It also appears to have led to an equally swift exit for the Regulator’s chief executive Bill Galvin (he leaves next month) who had had dared to reject calls for such an objective, pointing out reasonably that the existing arrangements required the Regulator and trustees to balance the interests of business, the pension scheme and the Pension Protection Fund.

So here it is, the Pensions Regulator’s first statement on DB pension schemes since the new objective was announced. The Regulator looks to have been very mindful of the not-yet-quite-existing objective in framing this statement and, although the precise wording of the objective is not expected until later in the year, has obviously already decided which way the wind is blowing. The key word that jumps out at you on a first skim is “flexibility”, which seems to be the new code for weakening regulation now that “light touch” has been discredited. This contrasts with last year’s statement, when the use of the word was accompanied by a warning that “we will consider whether the flexibility in the funding framework has been used appropriately”, ie emphasising the limits of flexibility rather than its possibilities.

There are also a number of areas where the position taken by the Regulator on funding appears to have noticeably weakened since 12 months ago. Here, in my view, are some of the main ones (italics are mine):

Section

Pension scheme funding in the current environment – April 2012

Section

Defined benefit annual funding statement – May 2013

17

In the regulator’s view, investment outperformance should be measured relative to the kind of near-risk free return that would be assumed were the scheme to adopt a substantially hedged investment strategy.

7

Trustees can use the flexibility available in setting the discount rates for technical provisions…to adopt an approach that best suits the individual characteristics of their scheme and employer.

19, 14

The regulator views any increase in the asset outperformance assumed in the discount rate to reflect perceived market conditions as an increase in the reliance on the employer’s covenant. Therefore, we will expect trustees to have examined the additional risk implications for members and be convinced that the employer could realistically support any higher level of contributions required if the actual investment return falls short of that assumed.

Where appropriate the use of actual post valuation experience is acceptable.

 

8

The assumptions made for the relative returns of different asset classes may rise or fall from preceding valuations reflecting changes in market conditions and the outlook for future returns. Trustees should ensure that they document their reasons for change and have due consideration to any increase in risk this might bring.

2

As a starting point, we expect the current level of de­ficit repair contributions to be maintained in real terms, unless there is a demonstrable change in the employer’s ability to meet them.

 

12

Where there are significant affordability issues trustees may need to consider whether it is appropriate to agree lower contributions and this may also include a longer recovery plan. Trustees should ensure that they document the reasons for any change and indicated that they have had due consideration of the risks.

Finally, under the heading what you can expect from us, the Regulator also mentions that it has discarded any triggers it had for subjecting schemes to further scrutiny “on individual items such as technical provisions”.

Unfortunately the combined impact of the changes in emphasis, specific wording and the ditching of the triggers would appear to directly conflict with two of the Pensions Regulator’s definitely-still-existing objectives, namely:

  • to protect the benefits under occupational pension schemes of, or in respect of, members of such schemes; and
  • to reduce the risk of situations arising which may lead to compensation being payable from the Pension Protection Fund.

The House of Lords Select Committee on Regulators in 2007 concluded that:

  • Independent regulators’ statutory remits should be comprised of limited, clearly set out duties and that the statutes should give a clear steer to the regulators on how those duties should be prioritised.
  • Government should be careful not to offload political policy issues onto unelected regulators.

We will have to wait and see exactly where this new objective is to be pitched, but, on the evidence of this funding statement from the Regulator, there must now be considerable doubt that either of the select committee principles will be met.

Set any organisation conflicting objectives and no clear way of prioritising between them and the chances are they won’t achieve any of them. The Pensions Regulator has already started to run this risk.

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