Virgin Media case and scheme amendments: ACA, APL and SPP issue joint statement

We reported last month that the Court of Appeal had agreed with the High Court’s previous judgment that all rule amendments to contracted-out DB schemes between 1997 and 2013 require written actuarial certification. Three pensions professional bodies have now issued a joint statement on the effect of the ruling. 

The statement says that since the High Court decision in 2023, a working group of representatives from the Association of Consulting Actuaries, Association of Pension Lawyers and Society of Pension Professionals has been engaging with the Department for Work and Pensions. It continues: 

“The Department is alive to the issues many schemes face as a result of the High Court’s ruling, now upheld by the Appeal Court, which questions the validity of certain past amendments made to the rules of then contracted out schemes.

The working group has proposed that the Secretary for State should make regulations that would remove this uncertainty by validating retrospectively any amendment that is held to be void solely because a written actuarial confirmation was not received before the amendment was made (or where such a confirmation cannot now be located).  

There is a specific power in Section 37(2) of the Pension Schemes Act 1993 for Regulations to validate, retrospectively, amendments that would otherwise be void.  Any such regulations would need to have appropriate safeguards.

This group has shared its thinking with the Department for Work and Pensions. The DWP is considering any wider effects for both schemes and scheme members as it explores the implications of the judgment.  At this stage the DWP has not indicated what, if any, resolution to the issue it may take.”

The Association of Pension Lawyers is collating evidence to be provided to the DWP of examples of potential issues in order to understand the scale of the problem and the impact on schemes. We will keep you updated on any developments.