Social Welfare and Pensions Act 2008

27.

Registered administrators.

27.— The Principal Act is amended—

( a) in section 2(1) by—

(i) inserting the following after the definition of “ occupational pension scheme ”:

“‘ one-member arrangement ’ means a defined contribution scheme that has been established for one person only including a scheme so established that has another member by reason of the operation of a pension adjustment order;

‘ outsourcing arrangement ’ means an arrangement of any form between a registered administrator and another person for the performance by that other person of a process, service or activity which would otherwise be undertaken by the registered administrator itself, and ‘outsourced’ shall be construed accordingly;

‘ pension adjustment order ’ means an order under section 12(2) or (3) of the Family Law Act 1995 or section 17(2) or (3) of the Family Law (Divorce) Act 1996;

‘ pensioneer trustee ’ means a person who is for the time being approved by the Revenue Commissioners to act as such in accordance with requirements imposed under Part 30 of the Taxes Consolidation Act 1997;”,

(ii) inserting the following after the definition of “ preserved benefit ”:

“‘ professional trustee ’ means a person who—

( a) holds himself out as having special knowledge, skills and expertise with respect to pension trusts, and

( b) in the course of a profession or business provides trustee services to schemes or trust RACs;”,

(iii) inserting the following after the definition of “ reckonable service ”:

“‘ registered administrator ’ means a person registered with the Board as a registered administrator under Part VIA;”,

and

(iv) substituting the following for the definition of “ trustees ”,

“‘ trustees ’ means—

( a) in relation to a scheme established under a trust or to a trust RAC, the trustees of the scheme or trust RAC, and

( b) in relation to a scheme established otherwise than under a trust (except in sections 54(2), 55(1A), 59, 59A, 59AA, 62, 63 and 64), the administrator of the scheme;”,

( b) in section 3(1)—

(i) in paragraph ( a)—

(I) by substituting “a person,” for “a person, or” in subparagraph (v), and

(II) by substituting the following for subparagraph (vi):

“(vi) a registered administrator, or

(vii) any other person,”,

and

(ii) by inserting the following after paragraph ( c):

“( d) The defence set out in paragraph ( c) is not available to a registered administrator in respect of the failure by another person to perform any process, service, or activity outsourced to that person by the registered administrator.”,

( c) in section 3A by inserting the following after subsection (7):

“(8) This section does not apply to a registered administrator.”,

( d) in section 18—

(i) in subsection (1), by substituting the following for all the words after “investigate”:

“on its behalf—

( a) the state and conduct of a scheme or trust RAC,

( b) the state of a PRSA product, or

( c) the activities of a registered administrator in that capacity.”,

(ii) by substituting the following for subsection (2):

“(2) The Board or an authorised officer may, by notice in writing—

( a) in relation to a scheme or trust RAC, require the employer concerned or the trustees or the registered administrator of the scheme or trust RAC,

( b) in relation to a PRSA provider, require the officers and employees of the PRSA provider in respect of its PRSA activities,

( c) in relation to an employer, require him in relation to his obligations under section 121, and

( d) in relation to a registered administrator, require him,

to furnish it, within such reasonable period as is specified in the notice, with such information and explanations and such books of account and other documents in relation to the scheme, the trust RAC, the PRSA products provided by the PRSA provider or the activities of the registered administrator in that capacity, as the case may be, as are so specified.”,

(iii) in subsection (3A)—

(I) by substituting “a scheme, a trust RAC, a PRSA product or the activities of a registered administrator in that capacity” for “a scheme or trust RAC or a PRSA product”,

(II) in paragraph ( a), by inserting “registered administrator,” after “trustee,”,

(III) in paragraph ( c), by substituting “the scheme, the trust RAC, the PRSA product or the activities of the registered administrator in that capacity,” for “the scheme or trust RAC or the PRSA product,”, and

(IV) in paragraph ( d), by substituting “the scheme, the trust RAC, the activities of the PRSA provider as such a provider or the activities of the registered administrator in that capacity” for “the scheme or trust RAC or the activities of the PRSA provider as such a provider”,

(iv) in subsection (4)—

(I) by substituting “of the employer, of the PRSA provider in relation to its activities as such a provider, of the registered administrator in relation to its activities in that capacity, of a trustee or of an agent,” for “of the employer or the PRSA provider as such a provider or a trustee or agent,”, and

(II) by inserting “who” after “as the case may be, or”,

and

(v) by substituting the following for subsections (5), (6) and (7):

“(5) A person who—

( a) wilfully obstructs an authorised person in the exercise of his powers under this section, or

( b) refuses or fails without reasonable excuse to produce to the authorised person or to the Board any information, document, material or explanation when required to do so under this section, or

( c) refuses or fails without reasonable excuse to answer any questions put to him by the authorised person or by the Board with respect to—

(i) the affairs of the scheme or trust RAC, or

(ii) the activities of the PRSA provider as such a provider or of the registered administrator in that capacity,

commits an offence punishable—

(I) on summary conviction by a fine not exceeding €5,000 or imprisonment for a term not exceeding one year, or both,

(II) on conviction on indictment by a fine not exceeding €25,000 or imprisonment for a term not exceeding 2 years, or both.

(6) In this section ‘ agent ’ includes—

( a) in relation to a scheme, a trust RAC or a PRSA provider—

(i) the actuaries, administrators, registered administrators, auditors and other accountants, and

(ii) the financial and other advisers,

to the scheme, trust RAC or PRSA provider,

( b) in relation to a registered administrator—

(i) the auditors and other accountants, and the financial and other advisers, to the registered administrator, and

(ii) any person with whom the registered administrator has an outsourcing arrangement,

and

( c) in relation to an employer— the auditors and other accountants, and the financial and other advisers, to the employer.

(7) A reference in this section to an officer, employee or agent of an employer, scheme, trust RAC, registered administrator or PRSA provider includes a reference to a person who has been, but no longer is, an officer, employee or agent (as the case may be) of the employer, scheme, trust RAC, registered administrator or PRSA provider.”,

( e) in section 54—

(i) in subsection (1) by substituting “to, or the trustees or registered administrator of,” for “to or trustees of”,

(ii) by inserting the following after subsection (1):

“(2) For the purposes of facilitating the discharge by the trustees of a scheme or trust RAC (other than a small trust RAC) of their obligations under subsection (1), the trustees shall appoint a registered administrator to perform, in relation to that scheme or trust RAC, the duties specified in section 64G(1)( b).

(3) The appointment of a registered administrator under subsection (2) does not relieve the trustees of any of their obligations under subsection (1).”.

(iii) in subsection (4)—

(I) in paragraph ( a), by inserting “or a registered administrator” after “trustees”,

(II) in paragraph ( aa)—

(A) by inserting “or a registered administrator” after “request the trustees”, and

(B) by inserting “or that registered administrator, as the case may be,” after “and the trustees”,

(III) by inserting the following after paragraph ( aa):

“( ab) A registered administrator of a scheme or trust RAC may request the trustees or auditors of that scheme or trust RAC, or the actuary of a scheme, to furnish him with such information as he may reasonably require for the purposes of his functions under this Act or regulations thereunder, and the trustees, auditors or actuary shall comply with any such request.”,

(IV) in paragraph ( b)—

(A) by inserting “or registered administrator” after “request the trustees”, and

(B) by substituting “and the trustees, registered administrator or employer, as the case may be,” for “and the trustees or the employer”,

(V) in paragraph ( c)—

(A) by substituting “relates, or the actuary to or trustees or registered administrator of a scheme or trust RAC, to” for “relates or the actuary to or the trustees of a scheme or trust RAC to”, and

(B) by substituting “the employer, actuary, trustees or registered administrator, as” for “the employer, the actuary or the trustees, as”,

(VI) by inserting the following after paragraph ( c)—

“( ca) The Board may by notice in writing request a registered administrator to furnish to the Board such information relating to its activities in that capacity and within such time limits as the Board specifies in the notice, and the registered administrator shall comply with any such request.”,

and

(iv) by substituting the following for subsection (5):

“(5) A person who contravenes this section commits an offence punishable, on summary conviction, by a fine not exceeding €5,000 or imprisonment for a term not exceeding one year, or both.”,

( f) in section 55 by inserting the following after subsection (1)—

“(1A) For the purposes of facilitating the discharge by the trustees of a scheme or trust RAC (other than a one-member arrangement or a small trust RAC) of their obligations under subsection (1), the trustees shall appoint a registered administrator in relation to that scheme or trust RAC.

(1B) The appointment of a registered administrator under subsection (1A) does not relieve the trustees of any of their obligations under subsection (1) or under regulations made under this Act.”,

( g) in section 59(1)—

(i) in paragraph ( e), by substituting “section 48;” for “section 48.”, and

(ii) by inserting the following after paragraph ( e):

“( f) other than in the case of the trustees of a small trust RAC, to ensure that at all times there is a registered administrator appointed in compliance with subsection (1AA).”,

( h) by inserting the following after section 59(1A):

“(1AA) The trustees of a scheme or trust RAC may appoint different registered administrators to perform the duties specified, respectively, in paragraphs ( a) and ( b) of section 64G(1), together, in the case of each of those registered administrators, with the duty specified in paragraph ( c) insofar as that duty relates to whichever of the first-mentioned duties that administrator is appointed to perform, but, subject to subsection (1AC), must not appoint more than one registered administrator to perform any one of the first-mentioned duties.

(1AB) A person who—

( a) on the day immediately before the date of commencement of section 27 of the Social Welfare and Pensions Act 2008, was retained by the trustees of a scheme or trust RAC to perform on behalf of the trustees any of the duties specified in section 64G(1) under an arrangement having effect as between the parties beyond that day, and

( b) with effect from the date of that commencement, is a registered administrator,

is to be taken, for the purposes of this Part and Part VIA, to have been appointed, in pursuance of the requirements of this Part, to perform the duties to which the arrangement relates.

(1AC) Where, on the day immediately before the date of commencement of section 27 of the Social Welfare and Pensions Act 2008, more than one person was retained by the trustees of a scheme or trust RAC to perform on behalf of the trustees the duty specified in paragraph ( a) or ( b) of section 64G(1) under an arrangement having effect as between the parties beyond that day, the Board may, in its absolute discretion and subject to such conditions as it sees fit, allow more than one registered administrator to be appointed by those trustees in respect of that duty.”,

( i) by inserting the following after Part VI:

“PART VIA

Registered Administrators

Interpretation (Part VIA).

64B.— In this Part except where the context otherwise requires—

‘ annual benefit statement ’ means the statement required by regulations under this Act to be furnished—

( a) at least once in each scheme year, by the trustees of a scheme to a member whose service in relevant employment has not terminated before normal pensionable age, or

( b) at least once in each trust RAC year, by the trustees of a trust RAC (other than a small trust RAC) to a member who has not commenced to receive benefit in accordance with the rules of the trust RAC,

containing such information as is prescribed in relation to the member’s individual interest in the scheme or trust RAC, as the case may be;

‘ core administration functions ’ means the duties of a registered administrator specified in section 64G(1);

‘ Register ’ means the Register of Administrators referred to in section 64C;

‘ registration year ’, in relation to a registered administrator, means the period of 12 months commencing on the date on which the registration under section 64D(3), or the renewal of the registration under section 64E(2), of the registered administrator takes effect.

Register of Administrators.

64C.— (1) The Board shall establish and maintain for the purposes of this Act a register to be known as the Register of Administrators.

(2) Subject to such requirements as are prescribed for the purposes of this subsection, the Register shall be in such form, and contain such entries and additions, as the Board considers appropriate for the purpose of maintaining an accurate record of the names and other particulars of persons registered under this Part.

(3) The Register shall be kept at the offices of the Board and be made available for inspection by any person free of charge during office hours.

(4) A copy of an entry in the Register shall, on request, be issued by the Board on payment of such fee (if any), not exceeding the reasonable cost of making the copy, as is prescribed.

(5) In any proceedings a document purporting to be a copy of such an entry and to be certified by an officer of the Board to be a true copy of the entry shall, without proof of the signature of the person purporting so to certify the document or that he or she was such an officer, be received in evidence and shall, unless the contrary is shown, be deemed to be a true copy of the entry and to be evidence of the matters stated in it.

Registration.

64D.— (1) A person shall not perform core administration functions for the trustees of a scheme or trust RAC (other than a small trust RAC) unless that person is registered with the Board as a registered administrator in accordance with this section.

(2) A person may apply to the Board for registration as a registered administrator by lodging with the Board an application for registration in the prescribed form.

(3) The Board shall—

( a) cause the name of an applicant to be placed on the Register if it is satisfied that the applicant—

(i) is not disqualified under section 64F, and

(ii) meets such other requirements as are prescribed,

and

( b) refuse to register the applicant if it is not so satisfied.

(4) The Board shall notify the applicant in writing of its decision and of the reasons for its decision.

Renewal of registration.

64E.— (1) An application for renewal of registration must be in the prescribed form and, subject to subsection (4), lodged with the Board not later than 30 days before the end of the registration year of the registered administrator immediately preceding the year for which renewal is sought.

(2) Where the Board receives an application for renewal of registration under subsection (1), the Board—

( a) shall renew the registration if it is satisfied that—

(i) the applicant continues to meet the requirements of section 64D(3), and

(ii) paragraph ( b)(ii) does not apply to the applicant,

or

( b) may decide either not to renew that registration, or to renew it subject to conditions, if—

(i) it is not satisfied that the applicant continues to meet all of the requirements of section 64D(3), or

(ii) as a result of an audit of the applicant under section 18 or 54(4)( ca), it is satisfied that the registered administrator has failed to a material extent to properly perform any of the core administration functions for which it has had responsibility or to comply with a condition imposed under this paragraph.

(3) The conditions that may be imposed under subsection (2) are—

( a) the restriction that the registered administrator may provide core administration functions only to trustees to whom it provided those functions during the registration year immediately preceding the date of renewal; and

( b) any other condition that is prescribed for the purposes of this subsection.

(4) The Board may consider a late application for renewal and, having regard to the circumstances, may—

( a) either deal with the application as if it had been made within time or reject it; and

( b) if it decides, after the date of expiry of the registration, that it should be renewed, renew it with effect from that date of expiry.

(5) The Board shall notify the applicant in writing of its decision and of the reasons for its decision.

Disqualifications.

64F.— (1) A person is not entitled to become, or to remain, registered under this Part if the person—

( a) is an undischarged bankrupt,

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

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

( d) is a company any director of which is prohibited under this section from being a registered administrator, or

( e) is a person who is for the time being subject to the restrictions imposed by section 150 of the Companies Act 1990.

(2) A person is not entitled to be registered under this Part if—

( a) an earlier registration of the person under this Part was terminated under section 64H, and

( b) a period of less than 12 months has elapsed since the date of termination.

Duties of registered administrators.

64G.— (1) A registered administrator shall—

( a) prepare on behalf of the trustees an annual report in the prescribed form and deliver it to the trustees not less than one month prior to the date by which the trustees are required by regulations under this Act to make the annual report available;

( b) prepare on behalf of the trustees annual benefit statements for members and deliver them to the trustees not less than one month prior to the date by which the trustees are required by regulations under this Act to make such statements available;

( c) keep accurate and sufficient records of members and of their entitlements to enable the registered administrator to discharge the duties specified in paragraphs ( a) and ( b); and

( d) discharge such other duties as are prescribed.

(2) A registered administrator which becomes disqualified from acting under section 64F shall immediately notify that fact in writing to the Board and to the trustees of each scheme or trust RAC of which it is the registered administrator.

(3) A contract for the performance of the core administration functions between trustees and a registered administrator may not be terminated by either party by less than 90 days’ prior written notice, except where the Board has decided not to renew the administrator’s registration under section 64E(2) or has terminated that registration under section 64H.

(4) Where a registered administrator has an outsourcing arrangement, the registered administrator remains fully responsible for discharging all of its obligations under this Act.

Termination of registration.

64H.— (1) The Board may terminate the registration of a registered administrator if the Board is satisfied that the registered administrator—

( a) has expressly requested the termination of registration;

( b) has failed to comply with the requirements of this Act;

( c) has not complied with a condition imposed by the Board under section 64E(2)( b); or

( d) is disqualified under section 64F from registration under this Part.

(2) As soon as practicable after the Board terminates the registration of a person as a registered administrator under subsection (1) it shall notify the person in writing of the termination and the reasons for that termination.

Appeals.

64I.— (1) Where—

( a) under section 64D(3)( b), a person’s application for registration has been refused,

( b) under section 64E(2)( b)—

(i) a person’s application for renewal of registration has been refused, or

(ii) the Board has imposed one or more conditions on a person,

or

( c) under section 64H(1), a person’s registration has been terminated,

the person may, within 21 days of the date of the notification under section 64D(4), 64E(5) or 64H(2) (or such longer period as the High Court allows before the expiration of those 21 days, 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 decision to which the notification relates.

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

(3) The Board, the trustees of the scheme or trust RAC and the registered administrator concerned are entitled to be represented and heard on any appeal under this section.

(4) A decision of the Board referred to in subsection (1) does not take effect—

( a) until the expiration of the period of 21 days after the date of the notification referred to in that subsection, or

( b) if an appeal against the decision is brought during that period of 21 days, until the final determination, or withdrawal, of the appeal or of any appeal from that determination.

Offences.

64J.— Proceedings in respect of any offence relating to a registered administrator under this Act with regard to an act or omission alleged to have been committed outside the State may be taken in any place in the State, and the act or omission may for all incidental purposes be treated as having been committed in that place.

Address for service.

64K.— (1) Every person whose name is entered on the Register of Administrators shall furnish to the Board an address for service in the State.

(2) The Board shall place details of that address on the Register of Administrators.

(3) Every notice required by or under this Act to be given to a registered administrator by the Board shall be served by the Board personally on, or sent by post to, the registered administrator at the address so furnished to the Board.

Publication of termination, non-renewal or restriction.

64L.— Subject to section 64I, if the Board—

( a) terminates the registration of a registered administrator under section 64H,

( b) decides not to renew the registration of a registered administrator under section 64E(2)( b), or

( c) renews the registration of a registered administrator subject to one or more conditions under section 64E(2)( b),

it shall publish notice of that fact in Iris Oifigiúil and in one or more newspapers circulating in the State within 28 days of the termination, non-renewal or renewal, as the case may be.

Effect of registration or renewal.

64M.— Registration, or the renewal of the registration, of a person under this Part does not constitute a warranty as to the fitness or suitability of that person to act as a registered administrator, and the Board—

( a) is not liable in respect of any losses incurred by a trustee resulting from the appointment of a particular registered administrator, and

( b) has no duty to any trustee or any other person regarding the performance by a registered administrator of the core administration functions.

Effect of termination or non-renewal.

64N.— Where, under this Part, the Board terminates, or decides not to renew, a registration, the decision of the Board shall not operate as a discharge of any liabilities of a person who has acted as a registered administrator.

Obligations of registered administrator following notification from Board.

64O.— (1) Subject to section 64I, where a person has been notified by the Board—

( a) that its registration is terminated,

( b) that its registration is not renewed, or

( c) that the Board has imposed conditions on the operations of the person as a registered administrator,

the person shall immediately notify in writing the trustees of each scheme or trust RAC of which the person is the registered administrator that it has received a notice from the Board and the content of that notice.

(2) If a person has been notified by the Board that—

( a) its registration is terminated, or

( b) its registration is not renewed,

it shall, not more than two months from the date of the notification, transfer all information held by it relating to each scheme or trust RAC of which it was the registered administrator, as directed by the trustees of that scheme or trust RAC, to such other registered administrator as is nominated by the trustees or to the trustees.

Services of registered administrator and sale of other products.

64P.— (1) A service or product shall not be marketed or sold to trustees in such a manner as to make the purchase of that service or product dependent on the purchase of the services of a particular registered administrator.

(2) The services of a registered administrator shall not be marketed or sold in such a manner as to make the entering into of a contract in respect of the services of the registered administrator dependent on the purchase of any other service or product.”,

( j) in section 82 by substituting the following for paragraph ( cc):

“( ca) is an administrator, investment manager or custodian of the PRSA, or

( cb) is a registered administrator, or”,

( k) in section 83(2) by inserting the following after paragraph ( b):

“( c) by a registered administrator before the commencement of section 27 of the Social Welfare and Pensions Act 2008.”,

and

( l) in section 126(3), by inserting the following after paragraph ( e):

“( ea) any registered administrator of the scheme or trust RAC;”.