Power to issue FSD remains with Pensions Regulator – Eversheds

UK - A leading pensions lawyer has dismissed reports that a recent Upper Tribunal ruling has granted powers to trustees to issue a Financial Support Direction (FSD) without the backing of the Pensions Regulator.

Giles Orton - partner at Eversheds who acted for the trustees of the Box Clever pension scheme in a hearing that saw broadcaster ITV lose its appeal to block them from the Upper Tribunal hearing - said the reports had "overstated" the matter, adding that Judge Colin Bishopp had not said "anything new or dramatic" about clauses in the Pensions Act regarding 'directly affected' people.

"As we submitted to the court, allowing the trustee to participate in an appeal is established in practice and precedent," Orton told IPE.

"It's quite clear that the powers to make an FSD lie with the regulator."

Orton said Bishopp's comments merely meant that if the Pensions Regulator's investigation team decided against issuing an FSD, a trustee could appeal at the Upper Tribunal, which in turn could prompt the regulator to pursue the matter.

He said: "It's merely confirming a decision from Mr Justice Warren in the Bonas case last year."

The Belgian Bonas Group was the first recipient of an FSD by the regulator in the summer of 2010, with a second FSD a year later lowering the amount sought from £5m.

The FSD issued on behalf of the Box Clever Pension Fund at the beginning of the year sought to address a £62m shortfall in the company scheme, which arose following its insolvency.

ITV has denied any responsibility for the shortfall, saying it had "no control" over the deficit.