Janda Trust: Determination notice

Standard Procedure Determination Notice under section 96(2)(d) of the Pensions Act 2004 and section 7(3) of the Pensions Act 1995.

Janda Trust (the Scheme)

The Pensions Regulator case ref: C187023837

1. By a request dated 14 June 2023 (the Request) the case team (the Case Team) of The Pensions Regulator (TPR) asked the Determinations Panel (the Case Panel) of TPR to consider the issues in a Warning Notice dated 5 August 2022.

Matters to be Determined

The Warning Notice asked the Panel to determine whether to make an Order appointing a trustee to the Scheme under section 7(3)(a) and/or (c) of the Pensions Act 1995 (PA 95) following an application made under section 7(5A) PA 95 and section 10(2)(b) of the Pensions Act 2004 (PA 04) (the Application) by XX XXXXXXXX XXXXXXX (XX XXXXXXX) Trustee A.

The Decision

The Case Panel determined to make an Order appointing 20-20 Trustees Limited (20-20 Trustees) to the Scheme together with further associated orders under sections 8 and 9 PA 95. The terms of the Order are recited at the conclusion of this Determination Notice. This Notice gives the Case Panel’s reasons for that order.

Directly Affected Parties

Under section 96(2)(d) PA 04, the Panel must give notice of its determination to such persons as appear to be directly affected by it. In this case the Case Panel considered the following persons to be directly affected by its determination:
1. XX XXXXXXX Trustee A;
2. XXXXXXX XXXXXXXX (XXX XXXXXXXX) Trustee B;
3. TM Trustees Limited (TM Trustees); and
4. 20-20 Trustees (the Proposed Trustee).
The Warning Notice gives the following information (set out in paragraphs 6 to19 below).

The Scheme

The Scheme is a defined contribution scheme with two members, XX XXXXXXX Trustee A and XXX XXXXXXXX Trustee B. The trustees of the Scheme are XX XXXXXXX Trustee A, XXX XXXXXXXX Trustee B (together the General Trustees as defined in the Scheme’s Deed and Rules) and TM Trustees, a corporate independent trustee (all three together the Trustees).
It is not in dispute that the Scheme is an occupational pension scheme within the meaning of section 1 of the Pension Schemes Act 1993.
It is understood that the Scheme is a 'small scheme' within the definition of Regulation 1 of the Occupational Pension Schemes (Investment) Regulations 2005 (the Investment Regulations)

The Application

The Application comprises a letter from XX XXXXXXX Trustee A’s legal advisors (Nelsons) to TPR dated 26 August 2020 together with supporting documents. Further to the Case Team seeking clarification from Nelsons, the Application was confirmed as being made under section 7(5A) PA 95; and given that the applicant is both a trustee of the scheme, and a scheme member, both s7(5A)(a) and s7(5A)(c) are met.
The Application argued that it was necessary to appoint an independent trustee in order:
1. to secure that the trustees as a whole have or exercise the necessary knowledge and skill for the proper administration of the Scheme pursuant to section 7(3)(a) PA 95;
2. to secure the proper use or application of the assets of the Scheme pursuant to section 7(3)(c) PA 95; and
3. otherwise to protect the interests of the generality of the members of the Scheme pursuant to section 7(3)(d) PA 95.
As well as requesting the appointment of an independent trustee under section 7 PA 95, the Application requested that:
1. TM Trustees be removed as a trustee of the Scheme under section 8(5)(c) PA 95; and
2. an order be made that the appointed independent trustee exercise the trustee’s powers to the exclusion of the other trustees.
The Application set out the following background and allegations:
1. XX XXXXXXX Trustee A and XXX XXXXXXXX Trustee B are siblings who both worked as directors of XXXXXXX X XXXXX XXXXXXX (the Employer). XX XXXXXXX Trustee A resigned as a director of the Employer in September 2013, and the Application alleged that this resignation left 'a significant amount of ill-feeling' between himself and XXX XXXXXXXX Trustee B;
2. Between 2014 and 2017, XX XXXXXXX Trustee A unsuccessfully sought to transfer his benefits out of the Scheme. The Application alleged that the transfer did not proceed due to XXX XXXXXXXX Trustee B’s failure to sign the necessary paperwork;
3. XX XXXXXXX Trustee A made a complaint to the Pensions Ombudsman in May 2017 about how his transfer request had been handled by Sheafmoor Money Management Limited (acting for the Trustees and members of the Scheme), which was partially upheld;
4. In May 2017, the Trustees received an offer from Smithfield Options Limited to enter into an option to purchase property at Cross Smithfield, Sheffield which was owned by the Scheme (the Property) for £300,000 (Offer 1). It is stated that XX XXXXXXX Trustee A did not accept the valuation of the property prepared by Lambert Smith Hampton dated 1 November 2017 and Offer 1 was ultimately not accepted;
5. In February 2018, XX XXXXXXX Trustee A sought to draw his 25% tax-free lump sum. The Application alleged that XXX XXXXXXXX Trustee B would only agree to the transfer if XX XXXXXXX Trustee A agreed to Offer 1;
6. In June 2018, the Trustees of the Scheme received a further offer from Smithfield Options Limited to enter into an option agreement to purchase the Property for £776,658 (Offer 2). This was with a view to Smithfield Options Limited selling the entire two-acre site to Godwin Developments. They had at this stage reached agreement with all landowners on the site except for the Trustees, the Employer (who owned another property on the site) and Sheffield County Council. The Application stated that XX XXXXXXX Trustee A was happy to agree Offer 2 but that it was not accepted because XXX XXXXXXXX Trustee B failed to sign the necessary paperwork, as she was attempting to negotiate a better deal in relation to the property owned by the Employer on the same site. Wake Smith, solicitors on behalf of XXX XXXXXXXX Trustee B, acknowledged that those negotiations were taking place but stated it had nothing to do with the Scheme or XXX XXXXXXXX Trustee B’s role as a trustee of the Scheme. In July 2020, Godwin Developments withdrew from the development scheme proposed by Smithfield Options Limited for apparently several reasons including the impact of Covid and the amount of time taken by the Employer to agree a sale.

The Case Team’s statement of merits in the Warning Notice

The Case Team’s position on the merits of the application set out in the Warning Notice can be summarised as follows:
The absence of definitive evidence, or any agreed narrative of events regarding Offer 1 and Offer 2, meant that it is not possible to rely on those events as demonstrating a lack of knowledge or understanding by XXX XXXXXXXX Trustee B. The Case Team also stated that the application offered little evidence to support the history of either Offer 1 or Offer 2, and in particular, no evidence to confirm XXX XXXXXXXX Trustee B’s role in decision-making as regards those offers.
Nevertheless, it seemed clear to the Case Team that the General Trustees had, in practice, failed to reach any agreement in relation to a number of key scheme issues over the period from 2014 to 2020, with the result that this period has been characterised by inaction, rather than proper scheme administration.
As TM Trustees did not have the power to make decisions unilaterally, or override the General Trustees, it followed that the Trustees as a whole were not exercising the necessary knowledge and skill for the proper administration of the Scheme, and there would appear to be grounds for an appointment under s7(3)(a) in order 'to secure that the trustees as a whole ... exercise ... the necessary knowledge and skill for the proper administration of the scheme'.
The inability to make decisions by the Trustees as a whole appeared to the Case Team to also be affecting their ability to secure the proper use or application of the assets of the Scheme, as they had been unable to reach decisions about Offer 1 or Offer 2, or indeed progress the Applicant’s requests for a transfer out or lump sum payment. Therefore, the appointment of a trustee under s7(3)(c) in order 'to secure the proper use or application of the assets of the scheme' would also appear to be reasonable.
The Case Team stated that while there was no evidence to suggest that TM Trustees was failing in their trustee responsibilities, they considered that 'by appointing TM Trustees (who are not on TPR’s register of Independent Trustees) the scheme would no longer fall within the definition of a small scheme pursuant to Regulation 1 of The Occupational Pension Schemes (Investment) Regulations 2005. The Case Team therefore considers the Proposed Trustee to be the most appropriate for this appointment'.
As regards the Applicant’s request for an appointment on the grounds of section 7(3)(d) of PA 95, the Case Team set out that a third-party application may only be made under s7(5A) of PA 95 on the grounds of 7(3)(a) or (c).

Representations

TM Trustees submitted representations to the Case Team by letter dated 22 August 2022, which can be summarised as follows:
1. in light of the Scheme Rule 8.3 which requires decisions to be by unanimous agreement of the General Trustees, it was assumed that the Determinations Panel would have authority to appoint an independent trustee with exclusive powers to the Scheme with the ability to override the existing scheme rules, General Trustees and independent trustee. If not, the Applicant would not get the desired outcome he is seeking;
2. any new independent trustee appointed with exclusive powers 'will have sole responsibility for superseding the existing scheme rules';
3. TM Trustees were both a trustee and Scheme Administrator to the Scheme. If they were removed as trustee, they would not continue to carry out the role of Scheme Administrator to the Scheme;
4. despite the breakdown in communications between the General Trustees and the inability to agree on Scheme decisions, they had been involved in trying to resolve the 'current impasse' and 'perhaps breaking up the SSAS';
5. discussion was ongoing to transfer XXX XXXXXXXX Trustee B out of the Scheme which would leave XX XXXXXXX Trustee A as the sole remaining member and give him the power to make all Scheme decisions including withdrawing his benefits from the Scheme. The General Trustees were in agreement on the proposal for XXX XXXXXXXX Trustee B to transfer out and in the process of agreeing the 'finer details'.
Wake Smith Solicitors on behalf of XXX XXXXXXXX Trustee B submitted representations to the Case Team by letter dated 30 September 2022. These representations referred to an earlier letter dated 10 July 2020 to the other trustees of the Scheme in which they had indicated that, in the event that the 'land transactions' fell through and 'to the extent absolutely necessary to improve the functionality of the trusteeship' XXX XXXXXXXX Trustee B would not necessarily oppose the appointment of an independent trustee. The July 2020 letter had asked for confirmation of who the intended new trustee would be, and further stated that XXX XXXXXXXX Trustee B’s agreement was subject to:
1. the new Trustee being 'suitable' and its fees being met out of Scheme assets;
2. there being no finding of fault on the part of XXX XXXXXXXX Trustee B (noting that a finding of fault was not necessary);
3. the Order under section 8(4) not resulting in the Scheme no longer qualifying as a 'small scheme' in accordance with the Investment Regulations.
In XXX XXXXXXXX Trustee B’s representations, it was noted that the 'land transactions' had fallen through, and that XXX XXXXXXXX Trustee B would be content for the Proposed Trustee to be appointed. A concern was raised in relation to the possibility that fees could continue to be charged by TM Trustees even if a new trustee were appointed.
The representations also raised the following:
1. that the Warning Notice didn’t appear to be seeking to find fault with XXX XXXXXXXX Trustee B and an express denial of any fault on the part of XXX XXXXXXXX Trustee B;
2. a rejection of any suggestion that XXX XXXXXXXX Trustee B would fail to give effect to a proper transfer of Scheme assets but an acceptance that there had been a 'breakdown of relations between herself and her brother, the Applicant' and that it was desirable for TPR to exercise its powers to improve the functioning of the Trustees as a body;
3. a query as to the power of the Determinations Panel to make a vesting order in the Proposed Trustee only and a suggestion that this is prevented by section 44 of the Trustee Act 1925. As XXX XXXXXXXX Trustee B remains a trustee of the Scheme it was stated that she is 'entitled to have the legal title to the trust property vested in her jointly with the other trustees';
4. an assumption that the Proposed Trustee would meet the requirements as to independence and be on TPR’s register of Independent Trustees, and that neither of the General Trustees would cease to be a trustee of the Scheme;
5. a comment that 20-20 Trustees, if appointed, would need to address the issues facing the scheme including its 'liquidity problems';
In the Case Team’s Response to the Representations, it stated that its statement of merits remained unchanged, as did the proposed action as set out in the draft order which included a vesting order under section 9 PA 95.

Other matters and further representations

On 4 August 2023 the Case Panel received an email from Wake Smith Solicitors (the Email) on behalf of XXX XXXXXXXX Trustee B indicating that:

'… preparations for the proposed transfer out are at an advanced stage whereby the process now requires XX XXXXXXX Trustee A’s written consent, as a co-Trustee of the Scheme, for the proposed transfer out to proceed. We understand that this consent will need to be in the form of XX XXXXXXX Trustee A’s signature on certain key documents, which will permit the transfer out of our client’s benefits and her subsequent removal as a Trustee of the Scheme. Further, we understand that these documents, together with a transfer value will be provided to XX XXXXXXX Trustee A shortly.'
On 9 August 2023 the Case Panel wrote to the Directly Affected Parties asking for representations on the contents of the email and on whether the proposed Determination Meeting should be postponed. On 11 August 2023 the Case Panel received representations from Nelsons disputing the fact that the Applicant, had received any documentation requiring his signature. It further stated that if all that was required was the Applicant’s signature then 'very little time should be required for completion' and that the Case Panel 'may wish to make an appointment of the independent trustee conditional' on the documentation and the process for completing the transfer out of XXX XXXXXXXX Trustee B from the Scheme being finalised 'within a month of the decision reached'.
On 14 August 2023 Wake Smith wrote to the Case Panel indicating that: 'it would be in the interests of the scheme and sensible in the circumstances for the Determination meeting to be postponed as our client [XXX XXXXXXXX [Trustee B] assumes that the proposed transfer out will take place shortly'.
By letter dated 14 August 2023 in response to the correspondence received, the Case Panel stated that:
1. there was no power to appoint an independent trustee on a conditional basis and as such;
2. it intended to proceed with the Determination Meeting;
3. but that did not preclude arrangements continuing for the transfer out of XXX XXXXXXXX Trustee B from the Scheme;
4. finally, the Case Panel noted that the Applicant could withdraw the Application in the event that the transfer out was achieved before a Determination Notice was issued.

The Law

Section 7(3) PA 95 allows TPR to appoint a trustee where they are satisfied that it is reasonable to do so in order:

“(a) to secure that the trustees as a whole have, or exercise, the necessary knowledge and skill for the proper administration of the scheme,
(b) to secure that the number of trustees is sufficient for the proper administration of the scheme,
(c) to secure the proper use or application of the assets of the scheme, or
(d) otherwise to protect the interests of the generality of the members of the scheme.”
Section 7(5A) PA 95 provides:

“An application may be made to the Authority in relation to a trust scheme by—

(a) the trustees of the scheme,
(b) the employer, or
(c) any member of the scheme,

for the appointment of a trustee of the scheme under subsection (3)(a) or (c).”
Section 8 PA 95 provides:

“(1) An order under section 7 appointing a trustee may provide for any fees and expenses of trustees appointed under the order to be paid— (a) by the employer, (b) out of the resources of the scheme, (c) or partly by the employer and partly out of those resources.

(2) Such an order may also provide that an amount equal to the amount (if any) paid out of the resources of the scheme by virtue of subsection (1)(b) or (c) is to be treated for all purposes as a debt due from the employer to the trustees of the scheme.

(3) Subject to subsection (4), a trustee appointed under that section shall, unless he is the independent trustee and section 22 applies in relation to the scheme, have the same powers and duties as the other trustees.

(4) Such an order may make provision— (a) for restricting the powers or duties of a trustee so appointed, (b) for powers or duties to be exercisable by a trustee so appointed to the exclusion of other trustees.”
Section 9 PA 95 provides:

“Where the Authority have power under this Part to appoint or remove a trustee or a trustee is removed under section 3A, they may exercise by order the same jurisdiction and powers as are exercisable by the High Court or, in relation to a trust scheme subject to the law of Scotland, the Court of Session for vesting any property in, or transferring any property to, trustees in consequence of the appointment or of the removal.”
Section 10(1) and (2) PA 04 provides:

“(1) The Determinations Panel is to exercise on behalf of the Regulator—

(a) the power to determine, in the circumstances described in subsection (2), whether to exercise a reserved regulatory function,
(b) where it so determines to exercise a reserved regulatory function, the power to exercise the function in question.

(2) Those circumstances are—

(a) where the Regulator considers that the exercise of the reserved regulatory function may be appropriate, or
(b) where an application is made under, or by virtue of, any of the provisions listed in subsection (6) for the Regulator to exercise the reserved regulatory function.”
Section 10(6) PA 04 provides:

“The provisions referred to in subsection (2)(b) are— […]

(g) section 7(5A) of that Act (application for appointment of a trustee under section 7(3)(a) or (c) of that Act)”.
Section 100 PA 04 provides:

“(1) The Regulator must have regard to the matters mentioned in subsection (2)—

(a) when determining whether to exercise a regulatory function—
(i) in a case where the requirements of the standard or special procedure apply, or
(ii) on a review under section 99, and (b) when exercising the regulatory function in question.

(2) Those matters are—

(a) the interests of the generality of the members of the scheme to which the exercise of the function relates, and
(b) the interests of such persons as appear to the Regulator to be directly affected by the exercise.”
Regulation 1 of the Investment Regulations provides (where relevant) that:

"……..

“small scheme” means a scheme with fewer than 12 members, where—

(a) all the members are trustees of the scheme and either—
(i) the provisions of the scheme provide that all decisions which fall to be made by the trustees are made by the unanimous agreement of the trustees who are members of the scheme, or
(ii) the scheme has a trustee who is independent in relation to the scheme for the purposes of section 23 of the 1995 Act (power to appoint independent trustees), and is registered in the register maintained by the Authority in accordance with regulations made under subsection (4) of that section;

…”

Reasons for Decision

The Case Panel’s sole role in this case is to decide whether to make an Order appointing a trustee along with various associated orders (including whether any such appointment should be with exclusive powers) with reference to the legislative tests set out in sections 7, 8 and 9 PA 95. The Case Panel’s conclusions and reasons in relation to this exercise are set out below.
In making its decision the Case Panel had regard to the representations received by the Case Team following the issue of the Warning Notice, the further representations made to the Case Panel by the Directly Affected Parties, and the matters set out in section 100 PA 04.
Section 7 PA 95 gives the Case Panel the power to appoint a trustee to an occupational pension scheme, including on application from a third party under section 7(5A). It is not in dispute that the Scheme is such a scheme. The Case Panel accordingly found that it is.

Section 7(3)(c) - Proper use or application of scheme assets

The Case Panel was satisfied that it was reasonable to appoint an independent trustee under section 7(3)(c) PA 95 as the relationship between the General Trustees had broken down over a long period and showed no signs of improving. The Applicant alleged that there was 'a significant amount of ill feeling' between him and XXX XXXXXXXX Trustee B which she denied but accepted that 'they do not get on'. The Case Team stated that both General Trustees 'acknowledge that relations between them are not ideal'. The Case Panel found on facts that were not in dispute (save as regards to who might be to blame for any inaction) that the Scheme was unable to operate effectively between the period 2014 to date due to the inability of the Trustees to make decisions on Scheme assets. This was demonstrated in the following:
1. the inability of the General Trustees to access benefits from the Scheme – in 2018 the Applicant had tried unsuccessfully to draw his 25% tax free lump sum from his benefits under the Scheme;
2. the inability of the General Trustees to agree in respect of two separate and consecutive offers made for the Property resulting in neither offer being either accepted or rejected;
3. the inability of either of the General Trustees to agree requests to transfer out of the Scheme - the Applicant had tried unsuccessfully to transfer out his benefits to a SIPP between 2014 and 2017. More recently, by email from her solicitors in April 2023, XXX XXXXXXXX Trustee B indicated steps were being taken for her to transfer out of the Scheme to a SIPP but four months later the transfer had still not happened.
4. due to the Scheme rules, the inability of the existing independent trustee to act unilaterally to properly administer the Scheme and secure the proper use or the application of the Scheme assets in the absence of agreement between the General Trustees.
The Case Panel noted that this situation was still continuing and that none of the Directly Affected Parties had opposed the appointment of a new independent trustee with exclusive powers.
Accordingly, the Case Panel was satisfied that it was reasonable to appoint an independent trustee in order to secure the proper use or application of the assets of the Scheme.

Section 7(3)(a) – knowledge and understanding of the trustees

Although the Case Panel noted that both Nelsons on behalf of the Applicant and the Case Team appeared to attribute the situation described at paragraph 41-43 above to a lack of knowledge and skill of the Trustees, it took the view that the problem was more about exercising knowledge and skill, rather than the Trustees not having it. The Case Panel did not consider the information and evidence provided to be sufficient to establish a lack of knowledge and understanding of the Trustees, particularly as the Trustees included a professional independent trustee whose competence was not in dispute.
The Case Panel made no findings further to section 7(3)(a) on the knowledge and understanding of the Trustees as it was satisfied that the matters set out above provided sufficient grounds for the appointment of an independent trustee to the Scheme under section 7(3)(c).

Section 7(3)(d) - to protect the interests of the generality of the members of the scheme

The Case Panel agreed that section 7(3)(d) was not applicable in the circumstances of this case and did not consider this ground further. Section 7(5A) only permits applications in relation to sections 7(3)(a) and 7(3)(c) PA 1995.

Exclusivity

The Case Panel was satisfied that the Scheme’s Trust Deed and Rules requiring the General Trustees’ unanimous agreement and for the independent trustee to be impartial was preventing the proper administration of the Scheme.
The Case Panel in particular noted, and agreed with the comments from TM Trustees that:

“Given the scheme has two member trustees, decision making is difficult and protracted where the members do not agree with each other, which is the case here.

By executing the Establishing Trust Deed dated 19 February 2009 and the Trust Deed adopting replacement provisions dated 20 October 2011, both members have signed up and agreed to adhere to the scheme rules.

Considering the aforementioned scheme rule, we presume TPR have taken this into account and the Determination [sic] Panel will have authority to appoint an independent trustee with exclusive powers to the Scheme with the ability to override the existing scheme rules, general trustees and independent trustee. Should this fail to be the case, we do not believe any new appointment will have the desired outcome the applicant is looking for."

In order for an independent trustee to be able to take the appropriate steps, and regardless of disagreement between the General Trustees, the Case Panel agreed that the proper administration of the Scheme can only be achieved if an exclusive powers appointment is made. Without exclusive powers, a new independent trustee would be no better placed to make decisions on the matters in dispute. The Case Panel therefore considered it is reasonable, indeed necessary, for any independent trustee to have exclusive powers.
The Panel noted that TM Trustees had indicated that, if it no longer has a trustee role, it will no longer provide scheme administrator services to the Scheme. The Case Panel had no reason to believe that the Proposed Trustee would not be able to appoint a new scheme administrator should it become necessary to do so.

Choice of independent trustee

The Warning Notice stated that 20-20 Trustees (the Proposed Trustee) be appointed as the independent trustee following a selection process. The Warning Notice explained that '…the Case Team considers that by appointing TM Trustees (who are not on TPR’s register of Independent Trustees) the scheme would no longer fall within the definition of a small scheme pursuant to Regulation 1 of The Occupational Pension Schemes (Investment) Regulations 2005. The Case Team therefore considers the Proposed Trustee to be the most appropriate for this appointment'.
The Directly Affected Parties had raised no objections to the Proposed Trustee and the Case Panel therefore accepted the Proposed Trustee be appointed as the independent trustee to the Scheme.
In her representations, XXX XXXXXXXX Trustee B had expressed some concern about fees continuing to be charged by TM Trustees. The Case Panel noted, however, that no application for the removal of any trustee has been put before the Determinations Panel and TM Trustees will technically remain as trustee, albeit with no power to act, until they resign or are removed.

Consequential Orders

The Case Panel considered it appropriate that an order be made that the fees of the Proposed Trustee be met from the Scheme assets. (The Case Panel noted that this is what is provided for in the 20 October 2011 Trust Deed and Rules and is how TM Trustees fees and expenses have been paid.)
For the reasons set out in paragraphs 47–50 above the Case Panel ordered that the powers and duties exercisable by the Proposed Trustee should be exercised to the exclusion of all other trustees.
Finally, the Case Panel considered whether to order the property of the Scheme to vest in the Proposed Trustee of the Scheme under section 9 PA 95. The Case Panel noted the representations made on behalf of XXX XXXXXXXX Trustee B which argued that XXX XXXXXXXX Trustee B was entitled to have 'legal title to the trust property vested in her jointly with the other trustees' and questioned the Determinations Panel’s power to vest property in the Proposed Trustee. The Case Panel noted the Case Team’s Response to these representations which clarified that an order of the Determinations Panel under PA 04 is equivalent to a High Court order under the Trustee Act 1925 and confirmed that the Determinations Panel had power to make such an order.
The Case Panel agreed and determined it was necessary to vest Scheme property in the Proposed Trustee to ensure that the appointment was effective. In particular, it was necessary so that the independent trustee was able to secure the proper use and application of the Scheme’s assets for the benefit of the members of the Scheme and without requiring the unanimous agreement of the General Trustees.

Conclusion

For the reasons outlined above the Case Panel determined that an order be made in the following terms:
"The Pensions Regulator hereby orders as follows:
1. 20-20 Trustees Limited (the Independent Trustee) is hereby appointed as trustee of Janda Trust (the Scheme), with immediate effect.
2. The order at (1) is made because the Determinations Panel of the Pensions Regulator is satisfied that it is reasonable to do so in order to secure the proper use or application of the assets of the Scheme pursuant to section 7(3)(c) of the Pensions Act 1995.
3. The powers and duties exercisable by the independent trustee shall until further order be to the exclusion of all other trustees of the Scheme pursuant to section 8(4)(b) of the Pensions Act 1995.
4. The Independent Trustee’s fees and expenses in respect of the Scheme shall be paid out of the resources of the Scheme pursuant to section 8(1)(b) of the Pensions Act 1995.
5. All property and assets of the Scheme, heritable, moveable, real and personal, of every description and wherever situated and all rights pertaining to that property be vested in, assigned to and transferred to the independent trustee as trustee of the Scheme pursuant to section 9 of the Pensions Act 1995.
6. The appointment of the independent trustee may be terminated, or the independent trustee replaced, at the expiration of 28 days’ notice from the Pensions Regulator to the Independent Trustee, pursuant to section 7(5)(c) of the Pensions Act 1995 and such power to terminate or replace the appointment shall be exercised by the Pensions Regulator in accordance with its delegation policy."
Appendix 1 to this Determination Notice contains important information about the rights to refer this decision to the Upper Tribunal.

Signed:

Chair: Megan Forbes

Dated: 26 September 2023

Appendix 1

Referral to the Tax and Chancery Chamber of the Upper Tribunal

If you are a directly affected party identified by the Case Panel in paragraph 4 above, you have the right to refer the determination to which this Determination Notice relates to the Tax and Chancery Chamber of the Upper Tribunal (the Tribunal)

A reference to the Tribunal is made by way of a written notice signed by you or your representative on your behalf and sent or delivered to the Tribunal with a copy of this Determination Notice. The reference notice must be received by the Tribunal no later than 28 days after this Determination Notice is given to you, unless you obtain an extension from the Tribunal.

The Tribunal’s address is:

Upper Tribunal
(Tax and Chancery Chamber)
Fifth Floor
Rolls Building
Fetter Lane
London
EC4A 1NL

Tel: 020 7612 9730

The detailed procedures for making a reference to the Tribunal are contained in section 103 PA 04 and the Tribunal procedure rules.

You should note that the Tribunal procedure rules provide that at the same time as sending or delivering a reference notice with the Tribunal, you must send a copy of the reference notice to The Pensions Regulator. Any copy reference notice should be sent to:

Determinations Panel Support
The Pensions Regulator
Telecom House
125-135 Preston Road
Brighton
BN1 6AF

Tel: 0345 600 0707

Email: panelsupport@tpr.gov.uk

A copy of the form for making a reference, FTC3 ‘Reference Notice (Financial Services)’, can be found on the government site.