Social Welfare and Pensions Act 2005

Qualifications of trustees.

34

34.—The Principal Act is amended—

( a) in section 26, in subsections (1) and (6), by inserting “,59A” after “58” in each place where it occurs,

( b) by re-numbering section 59A (inserted by section 23 of the Act of 1996) as section 59AA,

( c) by inserting the following after section 59:

“Qualifications of trustees.

59A.—(1) A person shall not act as a trustee of a scheme where the person—

( a) is an undischarged bankrupt, or

( b) has made a composition or arrangement with his creditors and has not discharged his obligations under that composition or arrangement, or

( c) has been convicted of an offence involving fraud or dishonesty, or

( d) is a company and any director of the company is prohibited under this section from being a trustee of the scheme, or

( e) is a person in respect of whom a declaration under section 150 of the Companies Act 1990 has been made.

(2) Regulations shall—

( a) provide that trustees of a scheme shall possess, or employ or enter into arrangements with advisers who possess, the qualifications and experience specified in those regulations, and

( b) specify the circumstances in which trustees will be regarded as possessing the specified qualifications and experience referred to in paragraph ( a).

(3) Any question as to whether a trustee or a person proposing to act as trustee satisfies the requirements of this section shall be determined by the Board—

( a) on its own initiative for the purpose of carrying out its supervisory functions under this Act, or

( b) at the request in writing of the trustee or person to whom the question relates.

(4) For the purpose of making a determination under subsection (3), the Board may by giving notice in writing in that behalf require any trustee of a scheme or any other person to submit to it the information that may be prescribed in the form and manner and within the time that may be prescribed.

(5) The Board shall notify in writing the trustee or person to whom the question relates of its determination and of its reasons for the determination.

(6) No claim shall lie against the Board arising directly or indirectly from any determination of the Board under this section.

(7) Subject to subsection (9), a person to whom a determination under subsection (3) relates may appeal to the High Court from the determination on a point of law within 21 days after the date of the notification of the determination to the person under subsection (5).

(8) In the case of a person who is a trustee of a scheme, a determination by the Board under subsection (3) that the person does not satisfy the requirements of this section shall have the effect of removing that person as trustee but without prejudice to the validity of any acts done by the trustee before removal under this section.

(9) ( a) A trustee in respect of whom a determination is made under subsection (3) that the trustee does not satisfy the requirements of this section may, within 21 days after the date of the notification under subsection (5) (or such longer period as the High Court may fix, being a period that, having regard to the circumstances of any particular case, the court considers to be reasonable), appeal to the High Court against the making of the determination to which the notification relates.

( b) On an appeal under this subsection the High Court may make such order confirming, annulling or varying the determination concerned and such order as to costs as it thinks fit.

( c) The Board, the trustees, the employer and the members of the scheme concerned shall be entitled to be represented and heard on any appeal under this subsection.

( d) A determination under this section shall not come into operation—

(i) during the period of 21 days after the date of the notification under subsection (5), or

(ii) if an appeal against the determination is brought during the period referred to in subparagraph (i), before the final determination of the appeal or any appeal from such determination or the withdrawal of either such appeal.

(10) In the case of a person who is a trustee of a scheme, a determination by the Board under subsection (3) shall not operate as a discharge of any liabilities of that person.”,

( d) in section 62(1) (inserted by section 15 of the Social Welfare (No. 2) Act 1993 ), by inserting “, subject to section 59A,” after “The Minister shall”, and

( e) in section 63B (inserted by section 27 of the Act of 1996) by inserting “prohibited from being a trustee of a scheme under section 59A or” after “while”.