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PART 1 General
Citation, commencement and interpretation
1
1
These Regulations may be cited as the Pension Protection Fund (Pension Compensation Sharing and Attachment on Divorce etc) Regulations 2011 and shall come into force on 6th April 2011.
2
In these Regulations —
“ the Act ” means the Pensions Act 2008;
“the 2004 Act ” means the Pensions Act 2004;
“admissible rules” has the same meaning as in paragraph 35 (scheme rules, admissible rules etc) of Schedule 7 to the 2004 Act ;
“child of the family” means —
a child of the transferee; or
any other child who has been treated by the transferee as a child of the family, other than a child placed with the transferee as a foster parent by a local authority or voluntary organisation;
“compensation cap” has the same meaning as in paragraph 26(7) of Schedule 7 to the 2004 Act (compensation cap);
“member” means the party who is entitled to present or future payment of PPF compensation under the pension compensation provisions and includes a pension compensation credit member;
“pension compensation attachment order” means an order made under any of the provisions specified in regulation 17(1)(a) to (e);
“pension compensation credit member” means a person who has rights to PPF compensation which are attributable to a pension compensation credit;
“pension compensation debit” means a debit of the appropriate amount, to be applied to the transferor’s shareable rights to PPF compensation, on the taking effect of a pension compensation sharing order or provision (see section 111 of the Act (creation of pension compensation debits and credits));
“qualifying course” means a full time educational or vocational course at a recognised educational establishment where, in pursuit of that course, the time spent receiving instruction or tuition, undertaking supervised study, examination or practical work or taking part in any exercise, experiment or project for which provision is made in the curriculum of the course, exceeds 12 hours per week in normal term time, and includes any gaps between the ending of one course and the commencement of another, where the person is enrolled on and commences the latter course;
“PPF” means the Pension Protection Fund;
“relevant compensation” means the payments to which the member is entitled (or will become entitled on attaining normal pension age) under the pension compensation provisions by virtue of the member’s shareable rights to PPF compensation that derive from rights under a specified scheme;
“relevant partner” means a person of either sex who was not married to, or in a civil partnership with, the transferee and who was living with the transferee —
as if that person and the transferee were husband and wife; or
in the case of two adults of the same sex, as if they were civil partners;
“surviving dependant” means —
a child of the family who was financially dependent on the transferee at the time of the transferee’s death and who is aged less than 18;
a child of the family who was financially dependent on the transferee at the time of the transferee’s death, who is aged less than 23 and who is —
attending a qualifying course; or
incapable of engaging in full time paid employment due to a condition that falls within the definition of a disability under section 6 (disability) of the Equality Act 2010 ; or
a child of the transferee who is born after the transferee’s death;
“surviving partner” means the surviving widow, widower or civil partner of a deceased transferee;
“valid nomination” means a signed written notice.
3
“Day”, in regulations 3, 5, 9, 11, 12, 17 and 18, means any day other than —
a
Christmas Day or Good Friday; or
b
a day which is, or is to be observed as, a bank holiday under Schedule 1 (bank holidays) to the Banking and Financial Dealings Act 1971 ;
and where the Board receives a request or order to provide information, an order or provision, a notification or other documents on a day which falls on one of the days specified in sub-paragraph (a) or (b), any period of time specified in regulation 3, 5, 9, 11, 12, 17 or 18 is to run from the next day after the day of receipt which is not a day specified in sub-paragraph (a) or (b).
PART 2 Shareable rights
Rights to PPF compensation which are not shareable
2
Any right of a person to PPF compensation is not shareable if —
a
the compensation is in payment; and
b
the compensation is derived directly or indirectly from the rights of a deceased person by virtue of being the surviving partner or surviving dependant of that person.
PART 3 Supply of information about pension compensation in relation to divorce etc
Basic information about pension compensation and divorce or dissolution of a civil partnership
3
1
The requirements imposed on the Board for the purposes of section 118(1)(a) of the Act (supply of information about pension compensation in relation to divorce etc. ) are that the Board must supply —
a
on request from a member, the information specified in paragraphs (2) and (3)(b) and (c);
b
on request from the spouse or civil partner of the member, the information specified in paragraph (3); and
c
pursuant to an order of the court, the information specified in paragraph (2), (3), or (4),
to the member, the spouse or civil partner of the member, or, as the case may be, to the court.
2
The information specified in this paragraph is a valuation of the member’s rights to PPF compensation and (if not the same as the member’s rights to PPF compensation) a valuation of the member’s rights to relevant compensation.
3
The information specified in this paragraph is —
a
a statement that on request from the member, or pursuant to an order of the court, a valuation of the member’s rights to PPF compensation and to relevant compensation (if not the same as the member’s rights to PPF compensation), will be supplied to the member, or, as the case may be, to the court;
b
a statement summarising the way in which the valuations referred to in paragraph (2) and sub-paragraph (a) are calculated;
c
a schedule of the charges that the Board will impose in accordance with regulation 18 (charges in respect of pension compensation sharing costs etc recoverable by the Board), and the method by which those charges may be recovered;
d
a statement that a person entitled to a pension compensation credit against the Board will be entitled to periodic compensation calculated in accordance with Schedule 5 (pension compensation payable on discharge of pension compensation credit) to the Act.
4
The information specified in this paragraph is any other information about the calculation and payment of PPF compensation relevant to any power exercisable under the provisions specified in section 118(1)(a) of the Act.
5
Where the member’s request or the court order for the provision of information includes a request or an order for provision of a valuation under paragraph (2), the Board must supply all the information in that request or order within —
a
3 months, beginning with the day that the Board receives the request or order for the provision of information;
b
6 weeks, beginning with the day that the Board receives the request or order for the provision of information, where the member or the court has notified the Board on the date of the request or order that the information is needed in connection with proceedings commenced under any of the provisions specified in section 118(1)(a) of the Act; or
c
any shorter period, where the court specifies such a period in an order requiring the Board to supply a valuation in accordance with paragraph (2).
6
Where —
a
the member’s request or the court order for supply of information does not include a request or an order for provision of a valuation under paragraph (2); or
b
the member’s spouse or civil partner requests the information specified in paragraph (3),
the Board must supply that information within one month beginning with the day that the Board receives the request or the court order for the provision of the information.
Valuation of relevant compensation for the purposes of an application for financial relief or financial provision
4
1
Where the Board is notified that —
a
an application for financial relief or financial provision under any of the provisions specified in section 118(1)(a) of the Act has been made or is in contemplation; or
b
a qualifying agreement containing provision corresponding to provision which may be made by an order under section 8 (orders for financial provision) of the Family Law (Scotland) Act 1985 is to be made or is in contemplation,
the value of the PPF compensation or relevant compensation to which the member is entitled or will become entitled must be calculated and verified for the purposes of section 118(1)(b) of the Act, or of regulation 3(2), in accordance with paragraphs (2) and (3).
2
The value of the PPF compensation or relevant compensation is the cash equivalent of the amount that would be required to make provision for the member’s entitlement to PPF compensation or relevant compensation under the pension compensation provisions.
3
The cash equivalent of the PPF compensation or relevant compensation must be calculated and verified —
a
in accordance with actuarial assumptions approved by the Board; and
b
on the assumption that the date on which the valuation is carried out is the date that the Board received the request for the valuation.
Provision of information in response to a notification that a pension compensation sharing order etc may be made
5
1
On a direction from the court or a request from the member, the Board must supply the information specified in paragraph (2) to the member or to the court, as the case may be —
a
within 21 days beginning with the day that the Board received the notification that a pension compensation sharing order, a pension compensation attachment order, or a qualifying agreement containing provision equivalent to such orders, may be made; or
b
if the court has specified a date which is before or after the 21 day period specified in sub-paragraph (a), by that date.
2
The information referred to in paragraph (1) is —
a
the full name and address of the person to whom any order or provision specified in section 109 of the Act (activation of pension compensation sharing) should be sent;
b
whether the Board is aware that the member’s rights to PPF compensation are subject to any, and if so, which, of the following —
i
any order or provision specified in section 109 of the Act;
ii
any order or provision specified in section 28(1) (activation of pension sharing) of the Welfare Reform and Pensions Act 1999 ;
iii
an order under section 23 (financial provision orders in connection with divorce proceedings etc.) of the Matrimonial Causes Act 1973 , which includes provision made by virtue of section 25B (pensions) or 25C (pensions: lump sums) of that Act ;
iv
an order under Part 1 of Schedule 5 (financial provision orders in connection with dissolution of civil partnerships etc: England and Wales) to the Civil Partnership Act 2004 , which includes provision made by virtue of Part 6 of that Schedule (powers to include provision about pensions);
v
an order under section 23 of the Matrimonial Causes Act 1973, which includes provision made by virtue of section 25F (attachment of pension compensation) of that Act ;
vi
an order under Part 1 of Schedule 5 to the Civil Partnership Act 2004, which includes provision made by virtue of paragraph 34A (attachment of PPF compensation) of Part 7 of that Schedule ;
vii
an order under Article 25 (financial provision orders in connection with divorce proceedings, etc.) of the Matrimonial Causes (Northern Ireland) Order 1978 , which includes provision made by virtue of Article 27B (pensions) or 27C (pensions: lump sums) of that Order ;
viii
an order under Part 1 (financial provision in connection with divorce, nullity or separation) of Schedule 15 to the Civil Partnership Act 2004, which includes provision made by virtue of Part 5 (making of Part 1 orders having regard to pension benefits) of that Schedule ;
ix
an order under Article 25 of the Matrimonial Causes (Northern Ireland) Order 1978, which includes provision made by virtue of Article 27F (attachment of pension compensation) of that Order ;
x
an order under Part 1 of Schedule 15 to the Civil Partnership Act 2004, which includes provision made by virtue of paragraph 29A (attachment of PPF compensation) of Part 6 of that Schedule ;
xi
an order under section 8 (orders for financial provision) of the Family Law (Scotland) Act 1985, which includes provision made by virtue of section 12A(2) (orders for payment of capital sum: pensions lump sums) or (3) or 12B (order for payment of capital sum: pension compensation) of that Act ;
xii
any provision corresponding to provision which may be made by such an order, and which is contained in a qualifying agreement between the parties to a marriage or the partners to a civil partnership;
xiii
a forfeiture order;
xiv
a bankruptcy order;
xv
an award of sequestration on a member’s estate or the making of the appointment on the member’s estate of a judicial factor under section 41 (appointment of judicial factor) of the Solicitors (Scotland) Act 1980 ;
c
whether the member’s rights to PPF compensation include rights which are not shareable or cannot be subject to a pension compensation attachment order;
d
if such information has not already been supplied, details of any charges that the Board will impose in accordance with regulation 18 (charges in respect of pension compensation sharing costs etc recoverable by the Board) and the method by which they may be recovered; and
e
whether the Board requires any information additional to that specified in regulation 9 (information to be supplied in order for the implementation period to begin) in order to implement the pension sharing order or provision.
Information to be provided by the Board to pension compensation credit members
6
The information to be provided by the Board to pension compensation credit members and to beneficiaries of pension compensation credit members is to be determined in accordance with the provisions of the Schedule.
PART 4 Pension compensation sharing and qualifying agreements (Scotland)
Prescribed form of provision corresponding to provision which may be made by a pension compensation sharing order
7
For the purposes of section 109(g)(ii) of the Act, the form of a provision corresponding to provision which may be made by a pension compensation sharing order, and which is contained in a qualifying agreement between the parties to a marriage or the partners in a civil partnership, is that the provision must include —
a
in relation to the transferor, the information specified in regulation 9(1)(a);
b
in relation to the transferee, the information specified in regulation 9(1)(b);
c
details of —
i
the amount to be transferred to the transferee, or
ii
the percentage of the cash equivalent of the relevant compensation which is to be transferred to the transferee;
d
details of provision about the apportionment between the transferor and transferee (if any) of charges imposed by the Board in accordance with regulation 18(1);
e
confirmation by the transferor that the Board has been sent notification that a qualifying agreement is to be made, and that the Board has acknowledged receipt of that notification.
Circumstances in which an agreement is to be entered into, in order to be considered a “qualifying agreement” for the purposes of section 110(1)(a) of the Act
8
The circumstances prescribed for the purposes of section 110(1)(a) of the Act are that —
a
the transferor has notified the Board that a qualifying agreement which makes provision corresponding to —
i
a pension compensation sharing order under section 8 of the Family Law (Scotland) Act 1985; or
ii
a capital sum order made under section 8 containing provision by virtue of section 12B of that Act,
is to be made; and
b
the transferor and transferee have entered into the agreement in order to determine the financial settlement on divorce or dissolution of a civil partnership.
PART 5 Implementation and discharge of liability
Information to be supplied in order for the implementation period to begin
9
1
Subject to paragraph (2), the information prescribed for the purposes of section 115(1)(b)(ii) of the Act (“implementation period”) is —
a
in relation to the transferor —
i
all names by which the transferor is or has been known;
ii
date of birth;
iii
address;
iv
National Insurance number; and
v
the name of the pension scheme for which the Board has assumed responsibility and to which the pension compensation sharing order or provision relates, or such other information as the Board may require to identify the pension scheme concerned;
b
in relation to the transferee —
i
the name of the transferee and, if the transferee is or will be entitled to PPF compensation other than by reason of the pension compensation credit, all other names by which the transferee is or has been known;
ii
date of birth;
iii
address;
iv
National Insurance number; and
v
if the transferee is or will be entitled to PPF compensation other than by reason of the pension compensation credit, the name of the pension scheme or such other information as the Board may require to identify the pension scheme concerned.
2
Where —
a
the Board has not received all the information specified in paragraph (1)(a); but
b
considers that it has sufficient information relating to the transferor to enable it to begin implementation of the pension compensation credit,
the prescribed information for the purposes of section 115(1)(b)(ii) of the Act is such information relating to the transferor as the Board considers sufficient.
3
Where the Board is subject to a liability in respect of a pension compensation credit and the transferee dies before the implementation period has begun, the start of the implementation period is to be postponed until the Board has received notification of —
a
the date of the transferee’s death; and
b
the name and address of the executor or personal representative of the deceased transferee.
Extension of implementation period
10
The circumstances in which the implementation period for a pension compensation credit is extended for the purposes of section 114 of the Act (time for discharge of liability) are that —
a
the transferor or the transferee has not taken such steps as the Board can reasonably expect in order to satisfy it of any matter which falls to be established before it can discharge its liability for the pension compensation credit within the implementation period;
b
the Board has not been supplied with such information as it reasonably requires to discharge its liability for the pension compensation credit within the implementation period; or
c
the transferor or the transferee has disputed the amount of the cash equivalent calculated and verified for the purposes of section 111 of the Act (creation of pension compensation debits and credits).
Postponement or cessation of implementation period when an application for leave to appeal out of time is made
11
1
Where a pension compensation credit depends on a pension compensation sharing order which is the subject of an application for leave to appeal out of time, the modifications to the effect of section 115 of the Act are —
a
where the implementation period has not commenced, its commencement is postponed; or
b
where the implementation period has commenced, its operation ceases.
2
The postponement or cessation referred to in paragraph (1)(a) or (b) is to continue until the Board receives —
a
confirmation from the court that the order which was the subject of the application for leave to appeal out of time has not been varied, discharged or recalled; or
b
a copy of the varied pension compensation sharing order.
3
If the Board —
a
has already discharged its liability in respect of the pension compensation credit which depends on a pension compensation sharing order; and
b
subsequently receives notification of an application for leave to appeal out of time in respect of that order,
it must inform the court, within 21 days from the date on which the notification was received, that the Board’s liability in respect of that pension compensation credit has been discharged.
Notification about the implementation period by the Board
12
1
Within a period of 21 days beginning on the day on which the implementation period begins in accordance with section 115(1) of the Act (“implementation period”), the Board must notify the transferor and transferee of the date that the implementation period began.
2
Where the implementation period cannot begin because the Board has not received all of the documents or information specified in section 115(1)(b)(i) and regulation 9(1) or (3) (information to be supplied in order for the implementation period to begin), the Board must, as soon as practicable after becoming aware that it has not received all such documents and information —
a
notify the transferor and the transferee, or (in cases where the transferee has died before the implementation period has begun) the executor or personal representative of the transferee, that the start of the implementation period is delayed because the Board has not been supplied with relevant information; and
b
specify the information required and (if applicable) the date on which it was requested.
3
Where the implementation period —
a
is extended in accordance with regulation 10; or
b
is postponed or ceases to operate in accordance with regulation 11,
the Board must, within 21 days of the date of the extension, postponement or cessation of the implementation period, notify the transferor and transferee of the reasons for that extension, postponement or cessation, including details of any information which the Board requires in order to complete implementation.
4
If any charges imposed by the Board in accordance with regulation 18 (charges in respect of pension compensation sharing costs etc recoverable by the Board) are due or will become due to be paid, the Board must notify the transferor and transferee of —
a
the amount of the charges;
b
the party who, in accordance with section 117(3) of the Act (charges in respect of pension compensation sharing costs), is responsible for paying the charges;
c
the date on which the charges were due or will become due to be paid;
d
the method, in accordance with regulation 18(4), by which the charges may be recovered if not paid by the date specified in sub-paragraph (c); and
e
the date, calculated in accordance with regulation 18(6)(e), on or after which the Board may recover the charges if not paid by the date specified in sub-paragraph (c).
Calculation and verification of cash equivalent
13
1
For the purposes of calculating the appropriate amount in accordance with section 111 of the Act, the cash equivalent of the relevant compensation is the amount that immediately before the transfer day would be required to make provision for the member’s entitlement to relevant compensation under the pension compensation provisions.
2
The cash equivalent must be calculated and verified in accordance with actuarial assumptions approved by the Board.
Determination of cash equivalent value of pension compensation credit
14
The Board must calculate the cash equivalent value of the compensation to which the transferee becomes entitled on the sending of a notice under section 116(3) (discharge of liability) using actuarial assumptions which are consistent with the actuarial assumptions used to calculate and verify the cash equivalent of the member’s entitlement to relevant compensation under the pension compensation provisions.
Discharge of liability where the transferee dies before the Board has discharged liability for a pension compensation credit
15
1
This regulation applies where —
a
the Board is subject to a liability in respect of a pension compensation credit; and
b
the transferee dies before liability in respect of that pension compensation credit has been discharged.
2
The Board must discharge the liability by sending a notice to the personal representative or executor of the deceased.
3
On the sending of the notice —
a
either —
i
where regulation 20 does not apply, a surviving partner is entitled to compensation calculated in accordance with regulation 21; or
ii
a relevant partner is entitled to compensation in the circumstances prescribed in regulation 22(2); and
b
a surviving dependant is entitled to compensation in the circumstances prescribed in regulation 22(5).
Notification of discharge of liability
16
1
Where the Board discharges liability in respect of a pension compensation credit in accordance with section 116 of the Act, it must also supply —
a
to the transferor —
i
in a case where the transferor has not attained pension compensation age before or on the transfer day, the information specified in paragraphs (2) and (3); or
ii
in a case where the transferor has attained pension compensation age before or on the transfer day, the information specified in paragraphs (2) and (4);
b
to the transferee —
i
in a case where the transferee has not attained pension compensation age before or on the transfer day, the information specified in paragraphs (5) and (6); or
ii
in a case where the transferee has attained pension compensation age before or on the transfer day, the information specified in paragraphs (5) and (7); or
c
in a case where the transferee has died prior to discharge of liability by the Board, to the personal representative or executor of the transferee, the information specified in paragraphs (5) (with the exception of the information specified in paragraph (5)(e)) and (8).
2
The information specified in this paragraph is —
a
the cash equivalent value as at the valuation day of the transferor’s entitlement to relevant compensation;
b
the cash equivalent value of the pension compensation debit;
c
the transfer day;
d
any charges which may be deducted in accordance with regulation 18 from the transferor’s remaining rights to relevant compensation (if any); and
e
the cash equivalent value of the transferor’s rights to relevant compensation (if any) immediately after the relevant compensation is reduced in accordance with section 113 of the Act (reduction of compensation) and after any deduction in respect of charges owed.
3
The information specified in this paragraph is the annual rate of PPF compensation which would be payable if the transferor had reached pension compensation age immediately after the relevant compensation is reduced in accordance with section 113 of the Act and after the deduction of any charges owed.
4
The information specified in this paragraph is the annual rate of the PPF compensation which is payable to the transferor —
a
immediately before; and
b
immediately after,
the relevant compensation is reduced in accordance with section 113 and any charges owed are deducted.
5
The information specified in this paragraph is —
a
the cash equivalent value of the pension compensation credit;
b
the transfer day;
c
any charges which may be deducted in accordance with regulation 18 from the transferee’s entitlement to compensation;
d
the cash equivalent value of the pension compensation credit following the deduction of any charges owed; and
e
the date at which payment of PPF compensation will commence.
6
The information specified in this paragraph is an estimate of the annual rate of PPF compensation which is likely to be payable to the transferee on reaching pension compensation age.
7
The information specified in this paragraph is the annual rate of compensation which is payable to the transferee from the transfer day.
8
The information specified in this paragraph is the fact that compensation may be payable to a surviving partner, relevant partner or surviving dependant in accordance with Part 7.
Provision of information after receipt of a pension compensation attachment order or provision
17
1
The Board must, within 21 days beginning with the day it receives —
a
an order under section 23 of the Matrimonial Causes Act 1973 , which includes provision made by virtue of section 25F (attachment of pension compensation) of that Act ;
b
an order under Part 1 of Schedule 5 to the Civil Partnership Act 2004 , which includes provision made by virtue of paragraph 34A (attachment of PPF compensation) of Part 7 of that Schedule ;
c
an order under Article 25 of the Matrimonial Causes (Northern Ireland) Order 1978, which includes provision made by virtue of Article 27F (attachment of pension compensation) of that Order ;
d
an order under Part 1 of Schedule 15 to the Civil Partnership Act 2004, which includes provision made by virtue of paragraph 29A (attachment of PPF compensation) of Part 6 of that Schedule ;
e
an order under section 8 (orders for financial provision) of the Family Law (Scotland) Act 1985 containing provision made by virtue of section 12B(2) of that Act ; or
f
a qualifying agreement containing provision equivalent to such an order,
issue to the member and to the person entitled to payments by virtue of the pension compensation attachment order or provision (‘the other party’) a notice which includes the information specified in paragraphs (2) and (4), or (2), (3) and (4), as the case may be.
2
Where an order or provision specified in paragraph (1) is made in relation to relevant compensation that is not in payment, the notice issued by the Board to the member and to the other party must include —
a
the cash equivalent value of the relevant compensation;
b
the first date when a payment pursuant to the order or provision is to be made; and
c
a list of any changes in circumstances which, under the terms of the order or provision, the member or the other party must notify to the Board.
3
Where an order or provision specified in paragraph (1) is made in relation to relevant compensation that is in payment, the notice issued by the Board to the member must, in addition to the items specified in paragraph (2), include —
a
the annual rate of the relevant compensation payable to the member immediately before implementation of the order or provision; and
b
the annual rate of the relevant compensation which will be payable to the member and to the other party immediately after implementation of the order or provision.
4
Where an order or provision specified in paragraph (1) is made (whether or not in relation to relevant compensation that is in payment), the notice issued by the Board to the member and to the other party must include —
a
the amount of any charges made in accordance with regulation 18(2)(d) which remain unpaid;
b
the date by which payment in whole or in part is required;
c
the amount of the charges which are attributable to the member and to the other party; and
d
whether the charges may be set off, in accordance with regulation 18(4)(c), against payments made to the member or the other party.
PART 6 Charges in respect of pension compensation sharing costs etc
Charges in respect of pension compensation sharing costs etc recoverable by the Board
18
1
Subject to paragraph (3), the Board may recover from a party to proceedings under any of the provisions specified in section 118(1)(a)(i) to (iv), or to a qualifying agreement specified in section 118(1)(a)(v) of the Act (‘a party’), charges of the description specified in paragraph (2).
2
The charges that the Board may recover are those in respect of —
a
provision of information or a valuation in accordance with regulation 3, 4 or 5;
b
the reasonable costs of implementing and discharging liability for a pension compensation credit;
c
any other reasonable costs associated with pension compensation sharing activity in relation to the parties; and
d
those charges which represent the reasonable administrative expenses which the Board incurs by reason of a pension compensation attachment order or provision.
3
The Board must not recover charges in relation to the costs specified in paragraph (2) if it is required to supply the same information to a member by regulations made under section 203 of the 2004 Act (provision of information to members of schemes etc) or to a pension compensation credit member by regulation 6 (information to be provided by the Board to pension compensation credit members).
4
Subject to paragraph (3), the Board may recover charges in relation to the costs specified in paragraph (2)(a) to (c) by —
a
requiring payment of charges to be made by any specified date on or after the date that the costs giving rise to the charges were incurred;
b
where compensation is not in payment, making a deduction from a member’s future entitlement to relevant compensation, or from a transferee’s future entitlement to compensation (calculated in accordance with paragraph 6 of Schedule 5 to the Act (compensation payable to transferee)); or
c
where —
i
relevant compensation is in payment to a member; or
ii
compensation is in payment to a transferee in accordance with paragraph 4 (compensation payable to transferee) of Schedule 5 to the Act,
setting off the charges owed against such payments.
5
Subject to paragraph (3), the Board may recover charges in relation to the costs specified in paragraph (2)(d) by either of the methods specified in paragraph (4)(a) and (c).
6
The Board must not recover charges in relation to the costs specified in paragraph (2) by either of the methods specified in paragraph (4)(b) and (c) unless —
a
there are charges which are unpaid;
b
the party from whose entitlement the Board intends to make the deduction is liable to pay those charges;
c
the Board has notified the parties of the charges which the Board will impose in accordance with regulation 3(3)(c), 5(2)(d), 12(4) or 17(4), as the case may be;
d
the Board has notified the party liable to pay the charges of the method by and the date on which the charges may be recovered; and
e
a period of 21 days from the date that the charges were due to be paid has elapsed.
Reimbursement between parties to pension compensation sharing
19
A payment in respect of charges in accordance with regulation 18 made by one of the parties to pension compensation sharing on behalf of the other party is recoverable as a debt by the party who made the payment from that other party.
PART 7 Compensation for survivors
Circumstances where a surviving partner is not entitled to periodic compensation
20
A surviving partner is not entitled to periodic compensation under paragraph 5 or 7 of Schedule 5 to the Act (compensation payable to widow, widower or surviving civil partner) or under regulation 15(3)(a) (i) where there is —
a
a valid nomination in favour of a relevant partner made by the transferee in accordance with either —
i
the admissible rules of the scheme; or
ii
regulation 22(3)(a); or
b
no provision to pay a survivor’s pension under the admissible rules of the scheme.
Compensation payable on discharge of liability under regulation 15 in the case of surviving partners
21
Where a surviving partner is entitled to compensation under regulation 15(3)(a)(i), the annual rate and duration of the periodic compensation payable to the surviving partner is to be calculated —
a
where the transferee, had they not died, would have become entitled to periodic compensation under paragraph 4 of Schedule 5 to the Act commencing on the transfer day, in accordance with paragraph 5(2) and (3) of Schedule 5 to the Act (compensation payable to widow, widower or surviving civil partner);
b
where the transferee, had they not died, would have become entitled to periodic compensation under paragraph 6 of Schedule 5 to the Act commencing at pension compensation age, in accordance with paragraph 7(2) and (3) of Schedule 5 to the Act (compensation payable to widow, widower or surviving civil partner).
Compensation payable in the case of relevant partners and surviving dependants
22
1
This regulation applies where the transferee —
a
was before death entitled to present or future payment of periodic compensation calculated in accordance with paragraph 4 or 6 of Schedule 5 to the Act; or
b
would have become so entitled had they not died before the Board discharged liability for a pension compensation credit.
2
Subject to paragraph (4), a relevant partner is entitled to periodic compensation in the circumstances prescribed in paragraph (3).
3
The circumstances are where there is provision to pay a survivor’s pension to a relevant partner under the admissible rules of the scheme (whether discretionary or otherwise); and —
a
the transferee —
i
has supplied the Board with a valid nomination in favour of the relevant partner; and
ii
the relevant partner has demonstrated to the satisfaction of the Board that they were living with the transferee at the date of the transferee’s death; or
b
where the transferee has not supplied the Board with a valid nomination in accordance with sub-paragraph (a)(i), the relevant partner supplies evidence to the satisfaction of the Board that, at the date of the transferee’s death, they were —
i
financially dependent, or interdependent, on the transferee; and
ii
living with the transferee.
4
No compensation may be paid under paragraph (2) where the transferee had a civil partner or a spouse at the date of the transferee’s death and there is no valid nomination in favour of the relevant partner.
5
A surviving dependant is entitled to periodic compensation in the circumstances prescribed in paragraph (6).
6
In the case of a surviving dependant, the circumstances are where there is supplied to the Board —
a
in the case of a natural child of the transferee, a birth certificate or other evidence demonstrating to the satisfaction of the Board that they are the natural child of the transferee;
b
in the case of an adopted child of the transferee, the adoption certificate demonstrating that they are the adopted child of the transferee; or
c
in the case of any other surviving dependant, evidence demonstrating to the satisfaction of the Board that they are a dependant of the transferee.
Amount and duration of periodic compensation that can be paid in the case of a relevant partner
23
1
Where a relevant partner is entitled to payment of periodic compensation under regulation 22, compensation is to commence on the day following the transferee’s death and is payable for life.
2
The amount of periodic compensation payable is to be calculated —
a
where the transferee was entitled to payment of periodic compensation commencing on the transfer day, or would have become so entitled had they not died, in accordance with paragraph 5(3) of Schedule 5 to the Act; or
b
where the transferee was entitled to payment of periodic compensation commencing at pension compensation age, or would have become so entitled had they not died, in accordance with paragraph 7(3) of Schedule 5 to the Act.
Amount of periodic compensation that can be paid in the case of a surviving dependant
24
1
Subject to paragraphs (2) and (3) and regulation 26, where a surviving dependant is entitled to periodic compensation under regulation 22(5) the amount is to be calculated —
a
where the transferee was entitled to payment of periodic compensation commencing on the transfer day, or would have become so entitled had they not died, in accordance with paragraph 4 of Schedule 5 to the Act (including any increases under paragraph 17 of Schedule 5 to the Act (annual increase in periodic compensation) to which the transferee would have been entitled); or
b
where the transferee was entitled to payment of periodic compensation commencing at pension compensation age, or would have become so entitled had they not died, in accordance with paragraph 6 of Schedule 5 to the Act (including any revaluation amount under paragraph 8 (revaluation) and any increases under paragraph 17 of Schedule 5 to the Act to which the transferee would have been entitled).
2
Where periodic compensation is also payable to a surviving partner or relevant partner and —
a
there is only one surviving dependant, the amount of periodic compensation is 25% of the amount calculated under paragraph (1); or
b
there are two or more surviving dependants, the amount of periodic compensation is half of the amount calculated under paragraph (1), divided equally between the surviving dependants.
3
Where periodic compensation is not payable to a surviving partner or relevant partner and —
a
there is only one surviving dependant, the amount of periodic compensation is half of the amount calculated under paragraph (1); or
b
there are two or more surviving dependants, the amount of periodic compensation is the amount calculated under paragraph (1), divided equally between the surviving dependants.
Period of payment
25
1
Except in the circumstances prescribed in paragraph (2), where periodic compensation is payable to a surviving dependant under regulation 22(5), it is payable from the day following the transferee’s death.
2
Where a surviving dependant —
a
is a child born after the transferee’s death, periodic compensation is payable from the date of the child’s birth;
b
has left a qualifying course, as a consequence of which payment of periodic compensation has ceased in accordance with paragraph (4)(a), but within one year begins another qualifying course before attaining the age of 23, periodic compensation is payable from the date that the later qualifying course begins; or
c
becomes disabled and is incapable of engaging in full time paid employment due to a condition that falls within the definition of a disability under section 6 of the Equality Act 2010 , after attaining the age of 18 but before attaining the age of 23, periodic compensation is payable from the date that the surviving dependant became disabled.
3
Except where paragraph (4) or (5) applies, periodic compensation is payable until the surviving dependant attains the age of 18.
4
Where the surviving dependant is attending a qualifying course, periodic compensation is payable either —
a
until they leave the course; or
b
until they attain the age of 23,
whichever is the earlier.
5
Where the surviving dependant is incapable of engaging in full time paid employment due to a condition that falls within the definition of a disability under section 6 of the Equality Act 2010, periodic compensation is payable until the surviving dependant attains the age of 23.
Change of circumstances and backdating
26
1
The amount of periodic compensation payable to a surviving dependant under these Regulations may be varied where —
a
there is a change in the circumstances of a person to whom periodic compensation is payable; and
b
that change would have resulted in —
i
a different rate of periodic compensation being payable (including where a rate of nil may apply); or
ii
periodic compensation being payable from a different date,
and such a variation must take effect from the date that the change in circumstances occurred.
2
The amount of periodic compensation calculated under paragraph (1) must include any increases under paragraphs 17 (annual increase in periodic compensation) and 20 (Board’s power to alter rates of revaluation and indexation) of Schedule 5 to the Act.
3
Where a person makes a claim for periodic compensation, the claim must be backdated to the date that the person became eligible to claim periodic compensation, or where that date is more than five years before the date of the claim, to a date five years before the date of the claim.
PART 8 Revaluation
Manner in which percentage increase in general level of prices is to be determined
27
1
For the purposes of paragraph 8(4)(a) of Schedule 5 to the Act (revaluation), the manner in which the percentage increase in the general level of prices in Great Britain is to be determined is —
100 × (
A
B
) − 100
where —
A is the general level of prices in Great Britain determined in such manner as the Secretary of State may from time to time decide for the month which falls two complete months before the first day of the month in which the transferee —
attains pension compensation age; or
becomes entitled to early payment of periodic compensation or lump sum compensation under paragraph 6 or paragraph 9 (commutation of periodic compensation) of Schedule 5 to the Act, calculated in accordance with paragraph 10 of Schedule 5 to the Act (early payment of compensation); and
B is the general level of prices in Great Britain determined in such manner as the Secretary of State may from time to time decide for the month which falls two complete months before the first day of the month during which the transfer day falls.
2
In this regulation, where the Secretary of State makes a decision about the manner in which the general level of prices in Great Britain is to be determined, the Secretary of State must publish that decision.
PART 9 Commutation of periodic compensation
Circumstances in which periodic compensation may be commuted
28
1
The circumstances prescribed for the purposes of paragraph 9(1) (commutation) of Schedule 5 to the Act are specified in paragraph (2).
2
The circumstances are that —
a
the transferor must not have previously exercised an option to commute for a lump sum either —
i
a portion of the pension from which the pension compensation credit was derived; or
ii
a portion of the relevant pension compensation from which the pension compensation credit was derived;
b
the transferee must not have previously exercised an option to commute for a lump sum a portion of the pension compensation credit in respect of which they are entitled to periodic compensation; and
c
the transferee exercises the option to commute within the period of six months beginning with the day on which payment of periodic compensation commences.
Circumstances in which the portion of compensation to be commuted may exceed 25 %
29
1
The prescribed circumstances for the purposes of paragraph 9(2) of Schedule 5 to the Act are that —
a
the transferee must have attained the age of 60 but not have attained the age of 75 on the date specified in paragraph (4) (the nominated date); and
b
the portion to be commuted is a PPF trivial commutation lump sum.
2
A payment is a PPF trivial commutation lump sum if —
a
either —
i
no trivial commutation lump sum or PPF trivial commutation lump sum has previously been paid to the transferee by either a registered pension scheme; or the Board; or
ii
if such a lump sum has previously been paid, the PPF trivial commutation lump sum is paid before the end of the commutation period;
b
on the nominated date the value of the transferee’s pension rights and entitlement to PPF compensation does not exceed the commutation limit;
c
it is paid when all or part of the transferee’s standard lifetime allowance is available; and
d
it extinguishes the transferee’s entitlement to PPF compensation.
3
“The commutation period” is the period beginning with the day on which a trivial commutation lump sum or PPF trivial commutation lump sum was first paid to the transferee and ending 12 months after that day.
4
The nominated date is —
a
a date nominated by the transferee which is within the period of three months ending with the day on which the transferee proposes to exercise the option to commute; or
b
if no date is nominated by the transferee, a date within that period nominated by the Board.
5
The commutation limit is 1% of the standard lifetime allowance on the nominated date.
6
For the purposes of paragraph (2)(b) —
a
the value of the transferee’s pension rights is the aggregate of —
i
the value of the transferee’s relevant crystallised pension rights (calculated in accordance with paragraph 8 (trivial commutation lump sum) of Schedule 29 to the Finance Act 2004 (‘the Finance Act ’)); and
ii
the value of the transferee’s uncrystallised rights (calculated in accordance with paragraph 9 (trivial commutation lump sum) of Schedule 29 to the Finance Act); and
b
the value of the transferee’s entitlement to PPF compensation is the aggregate of —
i
any entitlement to lump sum compensation under the pension compensation provisions; and
ii
any entitlement to periodic compensation under the pension compensation provisions.
7
For the purposes of paragraph (6)(b) —
a
the value of any entitlement to lump sum compensation is the full amount of lump sum compensation to which the transferee is entitled on the nominated date; and
b
the value of periodic compensation is to be calculated by multiplying the annual periodic compensation to which the transferee is entitled on the nominated date by 20.
8
In this regulation —
a
“registered pension scheme” has the same meaning as in section 150(2) of the Finance Act (meaning of “pension scheme”);
b
“standard lifetime allowance” means the amount specified in the relevant order for that tax year, made under section 218(3) of the Finance Act (individual’s lifetime allowance and standard lifetime allowance);
c
“tax year” has the same meaning as section 4(2), (3) and (4) of the Income Tax Act 2007 (income tax an annual tax); and
d
“trivial commutation lump sum” has the same meaning as in paragraph 7 of Schedule 29 to the Finance Act (trivial commutation lump sum).
Manner in which an option to commute may be exercised
30
1
The manner in which an option to commute periodic compensation under paragraph 9 of Schedule 5 to the Act may be exercised is specified in paragraphs (2) to (4).
2
A transferee may only exercise an option to commute a portion of the periodic compensation to which they are entitled by giving notice to the Board in writing.
3
A notice given under paragraph (2) must include —
a
the name, address, date of birth and national insurance number of the transferee; and
b
the percentage of the periodic compensation which the transferee opts to commute.
4
The Board may require a transferee exercising an option to commute to produce any document or provide any other information relevant to the Board’s functions in relation to the transferee’s request for commutation.
PART 10 Early payment of periodic compensation
Circumstances where a transferee is entitled to early payment of periodic compensation
31
1
The conditions under which, by virtue of paragraph 10 of Schedule 5 to the Act (early payment of compensation), a transferee may become entitled to early payment of lump sum compensation (by virtue of paragraph 9 of Schedule 5 to the Act (commutation of periodic compensation) and regulation 28 or 29) and periodic compensation under paragraph 6 of Schedule 5 to the Act (compensation payable to transferee) are specified in paragraph (2).
2
Those conditions are that —
a
the transferee has given notice to the Board, in accordance with paragraph (3), that they wish to receive periodic compensation or lump sum compensation before attaining pension compensation age; and
b
the transferee has attained the age of 55 on the date on which they would like the periodic compensation or lump sum compensation to be paid.
3
The notice referred to in paragraph (2)(a) must include —
a
the transferee’s name, address, date of birth and national insurance number; and
b
the date on which the transferee would like the periodic compensation or lump sum compensation to become payable.
PART 11 Annual increase in periodic compensation
Determination of indexed proportion
32
In any case where it is unclear whether the pension compensation credit or any part of it is derived from rights of the transferor relating to pensionable service (whether actual or notional) occurring —
a
before 6th April 1997; or
b
on or after 6th April 1997,
the Board may determine as best as it is able, having regard to the admissible rules of the scheme and all the circumstances of the case, how much of the service or notional service of the transferor should be treated for the purposes of paragraph 17 of Schedule 5 to the Act as having occurred before 6th April 1997 and how much should be treated as having occurred on or after that date.
PART 12 Compensation cap
Restriction of amount of compensation payable
33
1
This regulation applies where, in respect of a pension compensation credit —
a
the transferee becomes entitled to payment of compensation under paragraph 4 or 6 of Schedule 5 to the Act; and
b
on the transfer day the transferor was not entitled to present payment of relevant compensation.
2
Except where regulation 34 applies, where the annual value of the periodic compensation payable to the transferee under paragraph 4 or 6 of Schedule 5 to the Act in respect of that pension compensation credit exceeds the compensation cap, the amount of compensation payable to the transferee is restricted in accordance with paragraph (3).
3
Where compensation payable to the transferee is required to be restricted in accordance with this paragraph, the compensation payable is the cap fraction of the amount which would otherwise be payable to the transferee, in respect of that pension compensation credit, under paragraph 4 or 6 of Schedule 5 to the Act.
4
The annual value of the periodic compensation payable to the transferee under paragraph 4 or 6 of Schedule 5 to the Act in respect of a pension compensation credit is to be determined in accordance with this paragraph —
a
where no portion of the compensation to which the transferee is entitled under the pension compensation credit has been commuted, the annual value of the periodic compensation is the annual value of the compensation to which the transferee is entitled in respect of that credit; or
b
where a portion of the compensation to which the transferee is entitled under the pension compensation credit has been commuted, the annual value of the periodic compensation is the amount which would have been the annual value of the periodic compensation in respect of that credit, had a portion not been commuted.
5
In this regulation —
“the cap fraction” means —
C/V
where C is the compensation cap, and V is the annual value of the periodic compensation payable under the pension compensation credit.
Application of compensation cap where compensation becomes payable on different dates
34
1
This regulation applies where —
a
the transferee becomes entitled to payment of compensation in accordance with paragraph 4 or 6 of Schedule 5 to the Act; and
b
the transferee has previously become entitled to payment of compensation, in accordance with either of those paragraphs, which is derived from the rights of the same transferor under the same or a connected scheme.
2
For the purposes of paragraph (1), a scheme is a connected scheme if the same person is or was the employer in relation to both schemes.
3
Where this regulation applies, the amount of compensation payable to the transferee in accordance with paragraph 4 or 6 of Schedule 5 of the Act is to be restricted in accordance with paragraph (4) or (5).
4
If the previous cap percentage is or exceeds 100, the compensation payable in respect of a subsequent tranche of compensation is nil.
5
If the previous cap percentage is less than 100, the amount of compensation payable in respect of the previous and subsequent tranches of compensation is restricted in accordance with paragraph (8).
6
“The previous cap percentage” is the cap percentage for the previous tranche of compensation.
7
“The cap percentage” means (AAV x 100)/ACC, where AAV is the appropriate annual value of the previous or, as the case may be, a subsequent tranche of compensation at the time when each tranche first becomes payable and ACC is the appropriate compensation cap at that time.
8
Where paragraph (5) applies —
a
the amount of a subsequent tranche of compensation is restricted in accordance with regulation 33(3), but taking the reference to the cap fraction in that paragraph as a reference to the revised cap fraction; and
b
the amount of the previous tranche of compensation is restricted to the revised cap fraction of the amount that would be payable apart from this sub-paragraph.
9
“The revised cap fraction” means 100 / the aggregate cap percentage.
10
“The aggregate cap percentage” means the aggregate of the cap percentages for the previous and subsequent tranches of compensation.
PART 13 Amendment of Schedule 9 to the 2004 Act
Amendment of Schedule 9 to the 2004 Act
35
In Schedule 9 to the 2004 Act (reviewable matters), after paragraph 16B , insert —
16C
Any determination by the Board of a person’s entitlement to compensation under or by virtue of Chapter 1 of Part 3 of the Pensions Act 2008 (pension compensation sharing on divorce etc) or the failure in any case to make such a determination.
16D
A determination by the Board that any right of a person to PPF compensation is or is not “shareable” for the purposes of Chapter 1 of Part 3 of the Pensions Act 2008 (pension compensation sharing on divorce).
16E
A determination by the Board that the implementation period for a pension compensation credit (within the meaning of that Chapter) is or is not extended for the purposes of section 114 of that Act.
16F
The recovery of a charge from a person under regulation 18 of the Pension Protection Fund (Pension Compensation Sharing and Attachment on Divorce etc) Regulations 2011, the amount of the charge or the method of recovery.
.
Amendment of the Pension Protection Fund (Review and Reconsideration of Reviewable Matters) Regulations 2005
36
1
In the Schedule to the Pension Protection Fund (Review and Reconsideration of Reviewable Matters) Regulations 2005 , in the first column, below the reference to paragraph 16B, insert —
16C
Paragraphs 16C, 16D, 16E and 16F.
.
2
In the second column (interested person), below paragraph 16B and corresponding to paragraph 16C, insert —
Any person directly affected by the decision.
.
Signed by authority of the Secretary of State for Work and Pensions.
Steve Webb
Minister of State,
Department for Work and Pensions
10th March 2011


type: legislation

jurisdiction: UK

text:
Citation and commencement
1
These Regulations may be cited as the Motor Vehicles (Insurance Requirements) (Immobilisation, Removal and Disposal) Regulations 2011 and come into force on 16th May 2011.
Interpretation
2
1
In these Regulations —
“the 1988 Act ” means the Road Traffic Act 1988;
“the 1994 Act ” means the Vehicle Excise and Registration Act 1994 ;
“authorised person” has the meaning given by regulation 3;
“custodian” has the meaning given by regulation 9(3);
“GB records” means the records kept under the 1994 Act by the Driver and Vehicle Licensing Agency on behalf of the Secretary of State and “GB registration mark” means a registration mark assigned to a vehicle registered in those records;
“local authority” —
in relation to England and Wales, has the meaning given by section 270 of the Local Government Act 1972 ; and
in relation to Scotland, means a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 .
“ NI records” means the records kept under the 1994 Act by the Driver and Vehicle Agency on behalf of the Secretary of State and “NI registration mark” means a registration mark assigned to a vehicle registered in those records;
“prescribed evidence” means any of the following —
a policy of insurance;
a security in respect of third party risks;
a certificate of insurance;
a certificate of security in respect of third party risks;
“public service vehicle” has the meaning given by section 1 of the Public Passenger Vehicles Act 1981 ;
“registered keeper” means the person in whose name a vehicle is registered under the 1994 Act;
“release” in relation to a vehicle means release from an immobilisation device.
2
References to the “prescribed charge” for any matter are to the charge specified in relation to that matter in Schedule 1.
3
For the purposes of regulations 10 and 13 and notwithstanding section 192 of the 1988 Act, “owner”, in relation to a vehicle which is the subject of a hiring agreement or hire-purchase agreement, means the person who, being a party to such agreement, has given up possession of the vehicle in return for payment under the agreement .
4
For the purposes of regulations 5, 11 and 12 and notwithstanding section 192 of the 1988 Act, “owner”, in relation to a vehicle which is the subject of a hiring agreement or hire-purchase agreement, means a person who is a party to such an agreement.
5
Save in relation to a vehicle which is the subject of a hiring agreement or a hire-purchase agreement, references to the “owner” of a vehicle at a particular time are to the person by whom it was then kept and the registered keeper at a particular time is to be taken, unless the contrary is shown, to be the person by whom the vehicle was kept at that time.
Authorised persons
3
1
In these Regulations a reference to an authorised person is to a person authorised by the Secretary of State for the purposes of these Regulations.
2
An authorised person may be a local authority, an employee of a local authority, a member of a police force or any other person.
3
Different persons may be authorised for different purposes, but a person who is an authorised person for the purposes of regulation 14 must not act as an authorised person for any other purpose.
Disapplication of the Regulations
4
1
These Regulations do not apply in relation to a vehicle in any of the circumstances specified in paragraph (2).
2
The circumstances are that —
a
a current disabled person’s badge is displayed on the vehicle;
b
the vehicle appears to an authorised person to have been abandoned;
c
the vehicle is a public service vehicle being used for the carriage of passengers;
d
the vehicle is being used for the purpose of the removal of any obstruction to traffic, the maintenance, improvement or reconstruction of a public road, or the laying, erection, alteration, repair or cleaning in or near a road of any traffic sign or sewer or of any main, pipe or apparatus for the supply of gas, water or electricity, or of any telegraph or telephone wires, cables, posts or supports; or
e
the vehicle is being used by a universal service provider (within the meaning of the Postal Services Act 2000 ) in relation to the provision of a universal postal service (within the meaning of that Act) and each side of the vehicle is clearly marked with the name of the universal service provider concerned.
Power to immobilise vehicles
5
1
This regulation applies where an authorised person has reason to believe that an offence under section 144A of the 1988 Act is being committed as regards a vehicle which is stationary on a road or other public place.
2
Where this regulation applies, without prejudice to the institution of proceedings for any offence under Part 6 of the 1988 Act, the authorised person or a person acting under the direction of the authorised person may —
a
fix an immobilisation device to the vehicle while it remains in the place where it is stationary, or
b
move it from that place to another place on the same or another road or public place and fix an immobilisation device to it in that other place.
3
Where an immobilisation device is fixed to a vehicle in accordance with this regulation, the person fixing the device must also fix to the vehicle an immobilisation notice which —
a
indicates that the device has been fixed to the vehicle and warns that no attempt should be made to drive it or otherwise put it in motion until it has been released from the device;
b
states the reason why the device has been fixed;
c
specifies the steps to be taken to secure its release, including the charges payable under these Regulations and the person to whom and the means by which those charges may be paid; and
d
states the right of the owner, or person in charge of the vehicle at the time it was immobilised, to appeal pursuant to regulation 14, and specifies the steps to be taken and the address to which representations to an authorised person made as mentioned in that regulation should be sent.
Release of immobilised vehicles
6
1
A vehicle to which an immobilisation device has been fixed in accordance with regulation 5 —
a
may only be released by, or under the direction of, an authorised person; and
b
subject to sub-paragraph (a), is to be released —
i
where an authorised person is satisfied that the vehicle was immobilised in any of the circumstances specified in regulation 4(2); or
ii
if the first and second requirements specified in paragraphs (2) and (3) are met.
2
The first requirement is that the prescribed charge for the release of the vehicle from the immobilisation device is paid in any manner specified in the immobilisation notice.
3
The second requirement is that, in accordance with any instructions specified in the immobilisation notice, prescribed evidence is produced which establishes that —
a
any person who proposes to drive the vehicle away will not in doing so be guilty of an offence under section 143 of the 1988 Act; and
b
the registered keeper is not, at the point of release, guilty of an offence under section 144A of that Act as regards the vehicle.
Removal of or interference with immobilisation notice or device
7
1
An immobilisation notice must not be removed or interfered with except by or under the authority of an authorised person.
2
Any person contravening paragraph (1) is guilty of an offence and liable on summary conviction to a fine not exceeding level 2 on the standard scale.
3
Any person who, without being authorised to do so in accordance with regulation 6, removes or attempts to remove an immobilisation device fixed to a vehicle in accordance with these Regulations is guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.
Other offences connected with immobilisation
8
1
Where these Regulations would apply to a vehicle but for the provisions of regulation 4(1) and (2)(a) and the vehicle was not, at the time it was stationary, being used —
a
in accordance with regulations under section 21 of the Chronically Sick and Disabled Persons Act 1970 , and
b
in circumstances falling within section 117(1)(b) of the Road Traffic Regulation Act 1984 (use where a disabled person’s concession would be available),
the person in charge of the vehicle at that time is guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.
Removal of vehicles
9
1
This regulation applies where an authorised person has reason to believe that an offence under section 144A of the 1988 Act —
a
is being committed as regards a vehicle which is stationary on a road or other public place, or
b
was being committed as regards a vehicle at the time when an immobilisation device which is fixed to the vehicle was fixed to it in accordance with these Regulations and the conditions prescribed in paragraph (2) are fulfilled.
2
The conditions are —
a
24 hours have elapsed since the device was fixed to the vehicle, and
b
the vehicle has not been released in accordance with these Regulations.
3
In a case where this regulation applies, the authorised person or a person acting under the authorised person’s direction, may remove the vehicle and deliver it to a person authorised by the Secretary of State to keep vehicles so removed (“the custodian”).
Disposal of removed vehicles
10
1
Subject to the provisions of this regulation, the custodian of a vehicle delivered in accordance with regulation 9(3) may dispose of it by selling it or dealing with it as scrap, as the custodian thinks fit.
2
Where the owner of a vehicle has disclaimed all rights of ownership of that vehicle, it may be disposed of pursuant to this regulation at any time.
3
In a case not falling within paragraph (2), a vehicle must not be disposed of pursuant to this regulation before —
a
the end of a period, beginning with the date on which the vehicle was removed in accordance with regulation 9(3), of either —
i
in the case of a vehicle of no economic value, seven days, or
ii
in any other case, fourteen days;
b
the custodian has, for the purpose of ascertaining the owner of the vehicle, taken such of the steps specified in Schedule 2 as are applicable to the vehicle; and
c
either —
i
the custodian has failed to ascertain the name and address of the owner; or
ii
the owner has failed to comply with a notice in accordance with paragraph (4) served on the owner by first class post.
4
A notice under paragraph (3)(c)(ii) must be a notice addressed to the owner which —
a
states —
i
the registration mark and make of the vehicle;
ii
the place where the vehicle was found before it was immobilised;
iii
the place to which the vehicle has been removed;
iv
the steps to be taken to obtain possession of the vehicle in accordance with regulation 12; and
v
that unless the vehicle is removed by the owner on or before the date specified under sub-paragraph (b), the custodian intends to dispose of it; and
b
requires the owner to remove the vehicle from the custody of the custodian —
i
in the case of a vehicle which is of no economic value, within three days of the date on which the notice is served; or
ii
in any other case, within seven days of that date.
5
Where it appears to a custodian of a vehicle that more than one person is the owner, such one of them as the custodian thinks fit is to be treated as the owner for the purposes of this regulation.
6
For the purposes of this regulation, a vehicle is of no economic value if the custodian is satisfied that the total prescribed charges for the removal of the vehicle and its storage for seven days exceed the resale or scrap value of the vehicle.
Recovery of prescribed charges
11
1
Where a vehicle has been removed and delivered into the custody of a custodian in accordance with regulation 9(3), the Secretary of State or the custodian may (whether or not any claim is made under regulation 12 or 14) recover from the person who was the owner of the vehicle when the vehicle was removed the prescribed charges for —
a
its removal and storage; and
b
its disposal, if the vehicle has been disposed of.
2
Where, by virtue of paragraph (1)(a), any sum is recoverable in respect of a vehicle by a custodian, the custodian is entitled to retain custody of it until that sum is paid.
3
Where it appears to a custodian of a vehicle that more than one person is the owner, such one of them as the custodian thinks fit is to be treated as the owner for the purposes of this regulation.
Taking possession of a vehicle
12
1
A person (“the claimant”) may take possession of a vehicle which has been removed and delivered to a custodian and has not been disposed of under regulation 10, if the conditions specified in paragraph (2) are satisfied.
2
The conditions are —
a
the claimant satisfies the custodian that the claimant is the owner of the vehicle, or a person authorised by the owner to take possession of the vehicle;
b
except where the claimant produces evidence that no offence under section 144A of the 1988 Act was committed or the custodian is satisfied that these Regulations did not apply to the vehicle at the time it was immobilised or removed, the claimant pays to the custodian —
i
the prescribed charge in respect of the removal of the vehicle; and
ii
the prescribed charge for the storage of the vehicle during the period it was in the custody of the custodian; and
c
prescribed evidence is produced which establishes that —
i
any person who proposes to drive the vehicle away will not in doing so be guilty of an offence under section 143 of the 1988 Act; and
ii
the registered keeper is not, at the point of release, guilty of an offence under section 144A of that Act as regards the vehicle.
3
On giving the claimant possession of a vehicle pursuant to this regulation, the custodian must give the claimant a statement of the right of the owner, or person in charge of the vehicle at the time it was immobilised or, where it was not immobilised, it was removed, to appeal pursuant to regulation 14, of the steps to be taken in order to appeal and of the address to which representations to an authorised person made as mentioned in that regulation should be sent.
4
Where it appears to a custodian of a vehicle that more than one person is the owner or person authorised by the owner, such one of them as the custodian thinks fit is to be treated as the owner, or authorised person, for the purposes of this regulation.
Claim by owner of a vehicle after its disposal
13
1
If, after a vehicle has been disposed of by a custodian pursuant to regulation 10, a person claims to have been the owner of the vehicle at the time when it was disposed of and the conditions specified in paragraph (2) are fulfilled, the custodian must pay that person a sum calculated in accordance with paragraph (3).
2
The conditions are that —
a
the person making the claim satisfies the custodian that that person was the owner of the vehicle at the time it was disposed of; and
b
the claim is made before the end of the period of one year beginning with the date on which the vehicle was disposed of.
3
The sum payable under paragraph (1) must be calculated by deducting from the proceeds of sale the prescribed charges for the removal, storage and disposal of the vehicle.
4
Where it appears to a custodian of a vehicle that more than one person is the owner, such one of them as the custodian thinks fit is to be treated as the owner for the purposes of this regulation.
Disputes
14
1
This regulation applies to a dispute which has arisen because —
a
a person (“the claimant”) has paid a charge in accordance with regulation 6 or 12 in order to secure the release or to obtain possession of a vehicle and alleges that the charge (“the disputed charge”) should be refunded to the claimant on the ground that, at the time the vehicle was immobilised or, where it was not immobilised, at the time it was removed —
i
an offence under section 144A was not being committed; or
ii
any of the circumstances specified in regulation 4(2) applied to the vehicle; and
b
the person to whom the disputed charge was paid refuses to refund the charge.
2
The claimant under a dispute to which this regulation applies may appeal against the refusal of a refund by sending, to the authorised person whose name is given for this purpose in the notice under regulation 5(3) or the statement under regulation 12(3) at the address so given, written representations stating the grounds on which a refund is claimed.
3
The authorised person to whom the appeal is made must consider any representations duly made and any evidence provided in support of them and must notify the claimant as to whether or not the appeal for a refund is upheld, but the authorised person may disregard representations and evidence received later than 28 days from the date on which the vehicle was released, or as the case may be, on which possession was taken of it.
4
The authorised person must uphold the appeal if the authorised person accepts —
a
the ground under paragraph (1)(a) has been established and the authorised officer did not have reason to believe that an offence under section 144A was being committed as regards the vehicle at the time it was immobilised or removed, as the case may be; or
b
the ground mentioned in paragraph (1)(b) has been established.
5
Where the authorised person upholds an appeal, that person must inform the claimant of the decision and the Secretary of State must refund the disputed charge.
6
Where the authorised person rejects the appeal, that person must inform the claimant of the decision and of the right to make a further appeal under paragraph (7).
7
A claimant who has made an appeal to an authorised person under paragraph (2) may make a further appeal to the appropriate court in accordance with paragraph (9) —
a
if the claimant’s appeal under paragraph (2) has been rejected under paragraph (6) and the further appeal is made within 28 days of the claimant being served with notification to that effect under paragraph (6); or
b
if the authorised person has not notified the claimant of the outcome of the appeal in accordance with paragraph (5) or (6) and 56 days have elapsed since the claimant appealed.
8
If the court finds that —
a
the ground under paragraph (1)(a) has been established and the authorised officer did not have reason to believe that an offence under section 144A was being committed as regards the vehicle at the time it was immobilised or removed, as the case may be; or
b
the ground mentioned in paragraph (1)(b) has been established,
it shall order the Secretary of State to refund the disputed charge.
9
A further appeal in accordance with paragraph (7) lies —
a
in relation to a vehicle that was stationary on a road or other public place in England or Wales, to a magistrates’ court by way of complaint;
b
in relation to a vehicle that was stationary on a road or other public place in Scotland, to the Sheriff by way of summary application.
Signed by authority of the Secretary of State
Mike Penning
Parliamentary Under Secretary of State
Department for Transport
12th April 2011


text:
Citation and commencement
1
1
These Regulations may be cited as the Local Policing Bodies (Consequential Amendments) Regulations 2011
2
These Regulations come into force on 16th January 2012, with the exception of regulation 21(2)(a) which comes into force on 22nd November 2012.
Amendment to the Special Constables Regulations 1965
2
1
The Special Constables Regulations 1965 are amended as follows.
2
In regulation 5A(1) and (2) (special constables’ allowance) for “police authority” (in each place) substitute “local policing body”.
Amendments to the Police Federation Regulations 1969
3
1
The Police Federation Regulations 1969 are amended as follows.
2
In regulation 5(3) (proceedings of branches), for “members of the police authority” substitute “the local policing body or, where the local policing body is the Common Council of the City of London, members of the Common Council”.
3
In regulations 5(4), 7(4) (proceedings of branch boards) and 15B(3) (emoluments etc of officers of Federation) and paragraph 5 of Schedule 2 (proceedings) for “police authority” substitute (in each) “local policing body”.
4
In regulation 15B(1), for “police authorities” substitute (in each place) “local policing bodies”.
Amendments to the Motor Vehicles (Third Party Risks) Regulations 1972
4
1
The Motor Vehicles (Third Party Risks) Regulations 1972 are amended as follows.
2
In regulation 7(3) (production of evidence as alternatives to certificates) after “police authority” (in each place) insert “, local policing body”.
3
In regulation 9(1)(c)(ii) (production of evidence of insurance or security on application for excise licences) —
a
after “a police authority” (in the first place) insert “, a local policing body”;
b
after “police authority” (in each subsequent place) insert “, local policing body”.
Amendments to the Police Cadets (Pensions) Regulations 1973
5
1
The Police Cadets (Pensions) Regulations 1973 are amended as follows.
2
After regulation 3(2) (interpretation) insert —
2A
For the purposes of these Regulations a reference to the police pension authority shall be construed in accordance with section 11(2) of the Police Pensions Act 1976.
.
3
In regulation 3(3)(b), for “police authority” substitute “police pension authority”.
4
In regulations 3(3)(d) and 7(1)(d) and (e), for “police authority are” substitute “police pension authority is”.
5
In regulation 3(7), for the words after “to which a police cadet is attached” substitute “and to the chief officer of police are, respectively, references to the police force with a view to becoming a member of which the cadet is undergoing training and the chief officer of that force”.
6
In regulation 4(3) (effect of regulations), for “his police authority” substitute “the chief officer of police”.
7
In regulation 7A(2) (dependent relative’s special pension), for “police authority, having regard to all the circumstances of the case, in their discretion so determine” substitute “police pension authority, having regard to all the circumstances of the case, in its discretion so determines”.
8
In regulation 13 (authority by whom payments are to be made), for “police authority maintaining” substitute “police pension authority for”.
Amendments to the Special Constables (Pensions) Regulations 1973
6
1
The Special Constables (Pensions) Regulations 1973 are amended as follows.
2
After regulation 3(2) (interpretation) insert —
2A
For the purposes of these Regulations a reference to the police pension authority shall be construed in accordance with section 11(2) of the Police Pensions Act 1976.
.
3
In regulations 3(4)(a) and (b) and 12 (authority by whom payments are to be made), for “police authority” substitute “police pension authority”.
4
In regulations 6(1)(d) and (e) (widow’s augmented award) and 7(1)(d) and (e) (dependent relative’s special pension), for “police authority are” substitute “police pension authority is”.
5
In regulation 7(2), for “police authority, having regard to all the circumstances of the case, in their discretion” substitute “police pension authority, having regard to all the circumstances of the case, in its discretion”.
Amendment to the Weighing of Motor Vehicles (Use of Dynamic Axle Weighing Machines) Regulations 1978
7
1
The Weighing of Motor Vehicles (Use of Dynamic Axle Weighing Machines) Regulations 1978 are amended as follows.
2
In regulation 2(1) (interpretation), after “police authority” insert “, a local policing body”.
Amendments to the Motor Vehicles (Tests) Regulations 1981
8
1
The Motor Vehicles (Tests) Regulations 1981 are amended as follows.
2
In regulation 6 (exemptions) —
a
in paragraph (1)(xiv), for “in England and Wales by a police authority” substitute “in England and Wales by a local policing body”;
b
in paragraph (5), in paragraph (ii) of the definition of “test”, for “police authority” substitute “local policing body”.
Amendments to the Road Vehicles (Construction and Use) Regulations 1986
9
1
The Road Vehicles (Construction and Use) Regulations 1986 are amended as follows.
2
In regulation 3 (interpretation), in sub-paragraph (h) of the definition of “public works vehicle” in column 2 of the table, after “police authority” insert “or local policing body”.
3
In regulation 4 (application and exemptions), in item 10 in column 2 of the table, after “police authority” insert “or local policing body”.
4
In regulation 74 (testing and inspection), in paragraph (1)(c), after “police authority” insert “or local policing body”.
Amendments to the Occupational Pension Schemes (Managers) Regulations 1986
10
1
The Occupational Pensions Schemes (Managers) Regulations 1986 are amended as follows.
2
In regulation 1(2) (interpretation), for “police authority” substitute “police pension authority”.
3
In regulation 2(c) (managers of public service pension schemes), for “police authority of” substitute (in each place) “police pension authority for”.
Amendment to the Goods Vehicles (Plating and Testing) Regulations 1988
11
1
The Goods Vehicles (Plating and Testing) Regulations 1988 are amended as follows.
2
In paragraph 34 of Schedule 2 (classes of vehicles to which these Regulations do not apply), for “in England and Wales by a police authority” substitute “in England and Wales by a local policing body”.
Amendment to the Police (Disposal of Sound System) Regulations 1995
12
1
The Police (Disposal of Sound System) Regulations 1995 are amended as follows.
2
In regulation 4 (application of proceeds of sale), after “police authority” (in each place) insert “or local policing body”.
Amendments to the Knives (Forfeited Property) Regulations 1997
13
1
The Knives (Forfeited Property) Regulations 1997 are amended as follows.
2
In regulation 2 (interpretation), in the definition of “the relevant authority” —
a
for paragraph (a), substitute —
a
in relation to a police area in England and Wales, the local policing body (within the meaning of section 101(1) of the Police Act 1996);
;
b
omit paragraph (b).
Amendments to the Police (Property) Regulations 1997
14
1
The Police (Property) Regulations 1997 are amended as follows.
2
In regulation 3, in the definition of “the relevant authority” —
a
for paragraph (a), substitute —
a
in relation to a police area in England and Wales, the local policing body (within the meaning of section 101(1) of the Police Act 1996);
;
b
omit paragraph (b).
Amendment to the Health and Safety (Enforcing Authority) Regulations 1998
15
1
The Health and Safety (Enforcing Authority) Regulations 1998 are amended as follows.
2
In regulation 4 (exceptions), in paragraph (3)(d), after “police authority” insert “, a local policing body”.
Amendments to the Motor Vehicles (Driving Licences) Regulations 1999
16
1
The Motor Vehicles (Driving Licences) Regulations 1999 are amended as follows.
2
In regulation 23 (persons by whom theory tests may be conducted), for paragraph (1)(c) substitute —
c
a person appointed by a chief officer of police, for the purpose of testing —
i
members of a police force, and
ii
persons employed by a police authority, local policing body or chief officer of police for the purpose of assisting a police force;
.
3
In regulation 24 (persons by whom manoeuvres, practical and unitary tests may be conducted), for paragraph 1(d) substitute —
d
a person appointed by a chief officer of police, for the purpose of testing —
i
members of a police force, and,
ii
persons employed by a police authority, local policing body or chief officer of police for the purpose of assisting a police force;
.
4
In regulation 58 (provision of approved training courses), for paragraph (2)(c)(ii) substitute —
ii
persons employed in the driving of motor vehicles for police purposes by the chief officer or by the police authority or local policing body for the area in respect of which he is the chief officer,
.
Amendment to the Motor Vehicles (Access to Driver Licensing Records) Regulations 2001
17
1
The Motor Vehicle (Access to Driver Licensing Records) Regulations 2001 are amended as follows.
2
In regulation 3(2) (further disclosure), after “police authority” insert “, local policing body or chief officer of police”.
Amendment to the Traffic Signs Regulations and General Directions 2002
18
1
The Traffic Signs Regulations and General Directions 2002 are amended as follows.
2
In regulation 53(4)(e) (temporary signs), before “police authority” insert “local policing body,”.
Amendment to the Highways, Crime Prevention etc (Special Extinguishment and Special Diversion Orders) Regulations 2003
19
1
The Highways, Crime Prevention etc (Special Extinguishment and Special Diversion Orders) Regulations 2003 are amended as follows.
2
In Form 1 in Schedule 1 (special extinguishment order), for “The police authority . . . . . . . . [name of authority]” substitute “The local policing body . . . . . . . . [name of body]”.
Amendments to the Town and Country Planning (Local Development) (England) Regulations 2004
20
1
The Town and Country Planning (Local Development) (England) Regulations 2004 are amended as follows.
2
In regulation 2(1) (interpretation) —
a
after the definition of “inspection” insert —
“local policing body” means —
a police and crime commissioner (in relation to a police area listed in Schedule 1 to the Police Act 1996);
the Mayor’s Office for Policing and Crime (in relation to the metropolitan police district);
the Common Council (in relation to the City of London police area;
;
b
omit the definition of “police authority”;
c
in the definition of “relevant authority”, for paragraph (d) substitute —
d
a local policing body;
.
Amendments to the Public Contracts Regulations 2006
21
1
The Public Contracts Regulations 2006 are amended as follows.
2
In regulation 3 (contracting authorities), in paragraph (1) —
a
for sub-paragraph (m) substitute —
m
a police and crime commissioner established under section 1 of the Police Reform and Social Responsibility Act 2011 ;
ma
a chief constable established under section 2 of the Police Reform and Social Responsibility Act 2011;
;
b
for sub-paragraph (n) substitute —
n
the Mayor’s Office for Policing and Crime established under section 3 of the Police Reform and Social Responsibility Act 2011;
na
the Commissioner of Police of the Metropolis established under section 4 of the Police Reform and Social Responsibility Act 2011;
.
Amendment to the Childcare (Supply and Disclosure of Information) (England) Regulations 2007
22
1
The Childcare (Supply and Disclosure of Information) (England) Regulations 2007 are amended as follows.
2
In regulation 8(2)(b) (required provision of information to child protection agencies and police forces), before “a police authority” insert “a local policing body, or”.
Amendment to the Town and Country Planning (Control of Advertisements) (England) Regulations 2007
23
1
The Town and Country Planning (Control of Advertisements) (England) Regulations 2007 are amended as follows.
2
In the table in Part 1 of Schedule 3 (classes of advertisement for which deemed consent is granted), in the entry for Class 10, for “police authority” (in each place) substitute “local policing body”.
Amendment to the REACH Enforcement Regulations 2008
24
1
The REACH Enforcement Regulations 2008 are amended as follows.
2
In Schedule 3 (health and safety enforcement), in Part 3, in paragraph 5(c), after “police authority” insert “, local policing body”.
Amendments to the UK Border Agency (Complaints and Misconduct) Regulations 2010
25
1
The UK Border Agency (Complaints and Misconduct) Regulations 2010 are amended as follows.
2
In regulation 4 (application of the Police Reform Act 2002), in paragraph (3)(b), for “police authorities” substitute “local policing bodies”.
3
In regulation 10 (co-operation, assistance and information), in paragraph (4), for “police authority” substitute “local policing body”.
4
In regulation 11 (payment for assistance with investigations) —
a
for “police authority” (in each place) substitute “local policing body”;
b
for “police authorities” (in each place) substitute “local policing bodies”.
Amendment to the Building Regulations 2010
26
1
The Building Regulations 2010 are amended as follows.
2
In regulation 10 (exemption of the Metropolitan Police Authority from procedural requirements), for “Metropolitan Police Authority” (in each place) substitute “Mayor’s Office for Policing and Crime”.
Amendment to the Accounts and Audit (England) Regulations 2011
27
1
The Accounts and Audit (England) Regulations 2011 are amended as follows.
2
In regulation 7 (statement of accounts), in paragraph (4), in paragraph (d) of the definition of “contribution to the person’s pension”, for “police authority” substitute “police pension authority”.
Nick Herbert
Minister of State
Home Office
20th December 2011


text:
Citation and commencement
1
These Regulations may be cited as the Credit Rating Agencies (Amendment) Regulations 2011 and shall come into force on 1st July 2011.
Amendment of the European Communities (Enforcement of Community Judgments) Order 1972
2
At the end of the definition of “Community judgment” in article 2(1) of the European Communities (Enforcement of Community Judgments) Order 1972 , insert “or Article 36a or 36b of Regulation (EC) No. 1060/2009 of the Parliament and of the Council of 16 September 2009 on credit rating agencies ”.
Amendment of the Capital Requirements Regulations 2006
3
In regulation 21 (interpretation) of the Capital Requirements Regulations 2006 , at the end of the definition of “ EC Regulation” insert “, as amended by Regulation ( EU ) No. 513/2011 of the European Parliament and of the Council of 11 May 2011 amending Regulation (EC) No. 1060/2009 on credit rating agencies”.
Amendment of the Credit Rating Agencies Regulations 2010
4
The Credit Rating Agencies Regulations 2010 are amended as follows —
a
in regulation 2(1) (interpretation) —
i
at the end of the definition of “the EC Regulation” insert “, as amended by Regulation (EU) No. 513/2011 of the European Parliament and of the Council of 11 May 2011 amending Regulation (EC) No. 1060/2009 on credit rating agencies”;
ii
after the definition of “the EC Regulation” insert —
“ ESMA ” means the European Securities and Markets Authority established by Regulation (EU) No. 1095/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Securities and Markets Authority), amending Decision No. 716/2009/EC and repealing Commission Decision 2009/77/EC .
;
iii
omit the definitions of “overseas competent authority” and “protected item”;
b
omit regulation 4 (fees);
c
for paragraph (1) of regulation 6 (guidance) substitute —
1
The Authority may give guidance consisting of such information and advice as it considers appropriate with respect to any matter relating to the functions of the Authority under the EC Regulation.
;
d
omit Parts 3 (applications for certification and registration) to 8 (notices);
e
after regulation 31 (amendments to the Capital Requirements Regulations 2006) insert —
PART 10 ESMA: investigatory powers
Records of telephone and data traffic: Article 23c(1)(e) of the EC Regulation
32
1
ESMA must obtain authorisation from the High Court before any official of, or person authorised by, ESMA requests any records of telephone or data traffic under Article 23c(1)(e) of the EC Regulation from a person domiciled or established in the United Kingdom.
2
The Authority must obtain authorisation from the High Court before requesting on behalf of ESMA any records of telephone or data traffic under Article 23c(1)(e) of the EC Regulation.
3
The High Court may grant authorisation under paragraph (1) or (2) if satisfied, on an application made to the High Court in accordance with rules of court by ESMA or the Authority, that —
a
ESMA has ordered an investigation under Article 23c(1) of the EC Regulation; and
b
requiring the records of telephone or data traffic would be neither arbitrary nor excessive having regard to the subject matter of the investigation.
4
The High Court must conduct the assessment referred to in paragraph (3) in accordance with Article 23c(6) of the EC Regulation, and may exercise the powers conferred by that paragraph for the purposes of making its assessment.
5
In the application of this regulation to Scotland, references to the High Court are to be read as references to the Court of Session.
Inspections: Article 23d of the EC Regulation
33
1
ESMA must obtain authorisation from the High Court before any official of, or person authorised by, ESMA carries out an Article 23d inspection.
2
Where ESMA requires the Authority to carry out an Article 23d inspection on its behalf, the Authority must obtain authorisation from the High Court before carrying out that inspection.
3
The High Court may grant authorisation for the purposes of paragraph (1) or (2) if satisfied, on an application made to the High Court in accordance with rules of court by ESMA or the Authority, that —
a
ESMA has ordered an Article 23d inspection; and
b
the Article 23d inspection is neither arbitrary nor excessive having regard to the subject matter of the inspection.
4
The High Court must conduct the assessment referred to in paragraph (3) in accordance with Article 23d(9) of the EC Regulation, and may exercise the powers conferred by that paragraph for the purposes of making its assessment.
5
The High Court may issue a warrant if satisfied on information on oath given by or on behalf of ESMA or the Authority that there are reasonable grounds for believing that —
a
the premises specified in the warrant are the business premises of any legal person referred to in Article 23b(1) of the EC Regulation; and
b
the person referred to in sub-paragraph (a) has failed to comply with an Article 23d inspection, or would fail to comply with such an inspection if a warrant were not issued under this paragraph.
6
A warrant issued under paragraph (5) shall authorise a constable, together with a named official of ESMA or the Authority and any other official or person authorised by ESMA or the Authority to accompany that official —
a
to enter any premises specified in the warrant using such force as is reasonably necessary for the purpose;
b
to search for such records, data, procedures and other material as may be examined under Article 23c(1) of the EC Regulation, or such records of telephone or data traffic as ESMA or the Authority has been authorised to request under regulation 32(3), using such force as is reasonably necessary for the purpose;
c
to take or obtain certified copies of or extracts from such records, data, procedures and other material; and
d
to seal any business premises and books or records in accordance with Article 23d(2) of the EC Regulation.
7
In England and Wales, sections 15(5) to (8) and 16 of the Police and Criminal Evidence Act 1984 (execution of search warrants and safeguards) apply to warrants issued under paragraph (5).
8
In Northern Ireland, Articles 17(5) to (8) and 18 of the Police and Criminal Evidence (Northern Ireland) Order 1989 apply to warrants issued under paragraph (5).
9
In the application of this regulation to Scotland —
a
references to the High Court are to be read as references to the Court of Session;
b
references to information on oath are to be read as references to evidence on oath.
10
In this regulation, an “Article 23d inspection” means an inspection ordered by decision of ESMA under Article 23d of the EC Regulation.
Offences: Article 23d inspections
34
Any person who intentionally obstructs the exercise of any rights conferred by a warrant under regulation 33(5) is guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding three months or a fine not exceeding level 5 on the standard scale, or both.
.
Savings and transitional provisions
5
1
Despite its revocation by regulation 4(b) of these Regulations, regulation 4 of the Credit Rating Agencies Regulations 2010 has effect in relation to any registration or supervisory fee charged by the Authority before 1st July 2011.
2
Despite their revocation by regulation 4(d) of these Regulations, regulations 8 to 13, 24 to 28, and 29(1)(c) and (2) of the Credit Rating Agencies Regulations 2010 have effect in relation to any application for registration received by the Authority on or before 7th September 2010.
Angela Watkinson
Brooks Newmark
Two of the Lords Commissioners of Her Majesty’s Treasury
7th June 2011