Nest · CAS-93727-X0C8

CAS-93727-X0C8

Ombudsman’s Determination Applicant Ms N

Scheme NEST (the Scheme)

Respondent George Tidbury (the Employer)

Outcome

Complaint summary

Background information, including submissions from the parties

In December 2016, Ms N began her employment with the Employer.

On 3 October 2017, Ms N was enrolled into the Scheme.

Between November 2019 and November 2022, the Employer failed to pay pension contributions into the Scheme.

On 12 March 2020, 12 February 2021 and 27 August 2021, the Employer made multiple payments into the Scheme to bring the outstanding contributions up to date. These are shown in Appendix Two.

On 22 June 2022, Ms N contacted the Scheme administrator about unpaid pension contributions and was told that there had been no contributions paid into the Scheme since September 2021. She was told to contact the Employer. 1 CAS-93727-X0C8 On 24 June 2022, Ms N spoke to the Employer about the unpaid contributions.

On 2 July 2022, Ms N raised a formal complaint with the Employer.

On 24 July 2022, the Employer responded to Ms N’s complaint. It said that its accountant had confirmed that the Scheme administrator would pay all outstanding payments by 31 August 2022.

On 14 September 2022, Ms N brought her complaint to The Pensions Ombudsman (TPO).

On 12 December 2022, Ms N received a letter from the Scheme administrator. This stated that it had reported the Employer to The Pensions Regulator (TPR) for non- payment of contributions between 6 August 2022 and 5 September 2022.

On 2 March 2023, Ms N said multiple payments were made to the Scheme in the following months:-

• March 2020

• February 2021

• August 2021

• December 2022

She said that following this no further payments were made into the Scheme.

Ms N provided copies of the payslips that she held for the period from September 2019 to September 2023, which detailed the pension contributions deducted from her pay and the corresponding employer contributions. A breakdown of the available payslips has been included in Appendix One. She also provided a schedule from the Scheme administrator which showed the employer and employee contributions which had been paid into the Scheme. The Scheme administrator’s schedule has been included in Appendix Two.

On 8 May 2023, the Employer responded to TPO. It acknowledged there had been issues with the pension contributions being paid to the Scheme. However, it had been 2 CAS-93727-X0C8 given information from his accountant to show contributions were up to date. The Employer confirmed that while it was technically Ms N’s employer, it was not a profit- making company as her salary was paid from an annual personal health budget, received for his daughter which was funded by National Health.

On 26 May 2023, the Employer sent information which was provided to him by his accountant. This was a printout from the Scheme administrator which showed what contributions had been paid. The Employer also reiterated that it was not a profit- making business.

On 27 September 2023, Ms N left her employment with the Employer.

On 27 October 2023, Ms N received a letter from the Scheme administrator which stated that no more contributions would be paid from the Employer from 27 September 2023.

On 7 November 2023, Ms N emailed TPO and confirmed she no longer worked for the Employer and provided a copy of the letter dated 27 October 2023.

On 31 January 2024, Ms N sent an email to TPO which attached copies of her outstanding wage slips and latest contributions paid into the Scheme. She confirmed the contributions had been paid with the exception of contributions due for 27 September 2023. She also said the Employer had not mentioned anything to her regarding the payment of investment loss as a result of the late payment of contributions.

On 5 August 2024, TPO emailed the Employer and requested evidence which showed whether the outstanding contributions for September 2023 had been paid to the Scheme along with any investment loss for late payments. This request was repeated on 3 September 2024 and 17 September 2024.

On 9 October 2024, the Employer emailed TPO and said it had received confirmation from the Scheme administrator that all contributions were up to date, and it would send evidence of this. Despite a further extension being granted until 5 November 2024, the Employer did not provide the requested evidence.

On 25 November 2024, the Scheme administrator confirmed that the contributions rates for the Scheme were 5% for employee contributions and 3% for employer contributions.

Adjudicator’s Opinion Ms N’s complaint was considered by one of our Adjudicators who concluded that further action was required by the Employer as it had failed to remit the contributions that were due to the Scheme. The Adjudicator’s findings are summarised below:-

• The Adjudicator stated that TPO’s normal approach, in cases such as these, was to seek agreement from all parties on the facts of the complaint, including the

3 CAS-93727-X0C8 dates and amounts of contributions involved. He said that, as the Employer had not provided an adequate response to TPO’s information requests, he had to base his Opinion solely on the information provided by Ms N.

• The Adjudicator said that he had no reason to doubt the information provided by Ms N. So, in the Adjudicator’s Opinion, on the balance of probabilities, contributions had been deducted from Ms N’s salary but had not all been paid into the Scheme or on time. In addition, the Employer had not paid any of the employer contributions that were due over the same period. As a result of its maladministration, Ms N was not in the financial position she ought to be in.

• Based on the information provided by Ms N, It was his view that not all employee and employer contributions had been paid into the Scheme on time. It was also his opinion that contributions for September 2023 remained outstanding.

• The September 2023 payslip only showed employee contributions of £50.40 along with a gross salary of £1,734.06. No figure was provided for the employer contributions. The Scheme administrator has confirmed that the employee contribution rate was 5% and the employer contribution rate was 3% in line with the Scheme Rules. Therefore, in the Adjudicator’s view, based on a balance of probabilities, £50.40 in employee contributions and £36.42 in employer contributions, a total of £86.82 had not been remitted to the Scheme for September 2023.

• It was also the Adjudicator’s opinion that Ms N may have suffered some distress and inconvenience as a result of this maladministration from the Employer. However, he was of the opinion that in these specific circumstances, Ms N did not qualify for an award for non-financial injustice considering the Employer was not a for profit company.

Ombudsman’s decision

4 CAS-93727-X0C8 Under the rules of the Scheme (The Scheme Rules) the Employer was obliged to pay to the Scheme, at least 3% of Ms N’s qualifying earnings in the relevant pay reference period, and the employer and employee contributions must amount to at least 8% of Ms N qualifying earnings in the relevant pay reference period. The relevant provisions of the Scheme Rules are outlined in Appendix Three.

I find that the Employer has acted in breach of the Scheme Rules by not paying the contributions due for September 2023. The Employer’s failure to pay all employee and employer contributions into the Scheme or on time amounts to unjust enrichment and has caused Ms N to suffer a financial loss. This amounts to maladministration. The Employer shall take remedial action to put this right.

Directions

(i) Ms N’s £50.40 and employer contributions of £36.42.

(ii) pay £109.87 into Ms N’s Scheme account for the investment loss due to the late payment of contributions between September 2019 and September 2023.

Camilla Barry

Deputy Pensions Ombudsman 7 February 2025

5 CAS-93727-X0C8 Appendix One Date Employee contributions Employer contributions Gross pay

28/09/2019 £55.12 Unknown £1,890.00

28/10/2019 £95.60 Unknown £2,390.00

28/11/2019 £75.60 Unknown £1,890.00

28/12/2019 £85.60 Unknown £2,140.00

28/01/2020 £82.80 Unknown £2,070.00

28/02/2020 £78.40 Unknown £1,960.00

28/03/2020 £85.60 Unknown £2,140.00

28/04/2020 £85.60 Unknown £2,140.00

28/05/2020 £87.60 Unknown £2,190.00

28/06/2020 £84.80 Unknown £2,120.00

28/07/2020 £88.40 Unknown £2,210.00

28/08/2020 £75.60 Unknown £1,890.00

28/09/2020 £68.40 Unknown £1,710.00

28/10/2020 £64.80 Unknown £1,620.00

28/11/2020 £61.20 Unknown £1,530.00

21/12/2020 £64.80 Unknown £1,620.00

28/01/2021 £61.20 Unknown £1,530.00

28/02/2021 £57.60 Unknown £1,440.00

March 2021 No Payslip received

28/04/2021 £32.40 Unknown £810.00

28/05/2021 £39.00 Unknown £975.00

28/06/2021 £39.00 Unknown £975.00

28/07/2021 £39.00 Unknown £975.00

28/08/2021 £39.00 Unknown £975.00

28/09/2021 £39.00 Unknown £975.00

6 CAS-93727-X0C8 28/10/2021 £39.00 Unknown £975.00

28/11/2021 £39.00 Unknown £975.00

28/12/2021 £46.80 Unknown £1,170.00

27/01/2022 £36.00 Unknown £900.00

27/02/2022 £36.00 Unknown £900.00

27/03/2022 £36.00 Unknown £900.00

27/04/2022 £36.00 Unknown £900.00

27/05/2022 £39.00 Unknown £975.00

27/06/2022 £43.80 Unknown £1,095.00

27/07/2022 £39.00 Unknown £975.00

27/08/2022 £39.00 Unknown £975.00

September 2022 No payslip received

27/10/2022 £37.20 Unknown £930.00

27/11/2022 £39.00 Unknown £975.00

December 2022 No payslip received

27/01/2023 £39.00 Unknown £975.00

27/02/2023 £36.00 Unknown £900.00

27/03/2023 £48.00 Unknown £1,200.00

27/04/2023 No Payslip received

27/05/2023 £39.00 Unknown £975.00

27/06/2023 £0.00 Unknown £401.14

27/07/2023 £0.00 Unknown £437.60

27/08/2023 £0.00 Unknown £510.53

27/09/2023 £50.40 £1,734.06

7 CAS-93727-X0C8 Appendix Two Date Employee Contributions Employer Contributions

28/09/2019 £55.12 (09/10/19) £41.34 (09/10/19)

28/10/2019 Unknown Unknown

28/11/2019 Unknown Unknown

28/12/2019 Unknown Unknown

28/01/2020 Unknown Unknown

28/02/2020 Unknown Unknown

16/03/2020 £78.40 £58.80 £82.80 £62.10 £75.60 £56.70 £95.60 £71.70 £85.60 £64.20 28/03/2020 Unknown Unknown

28/04/2020 Unknown Unknown

28/05/2020 Unknown Unknown

28/06/2020 Unknown Unknown

28/07/2020 Unknown Unknown

28/08/2020 Unknown Unknown

28/09/2020 Unknown Unknown

28/10/2020 Unknown Unknown

28/11/2020 Unknown Unknown

21/12/2020 Unknown Unknown

28/01/2021 Unknown Unknown

12/02/2021 £61.20 £45.90 £64.80 £48.60 £68.40 £51.30 £88.40 £66.30 £64.80 £48.60 £85.60 £64.20 £85.60 £64.20 £84.80 £63.60

8 CAS-93727-X0C8 £61.20 £45.90 £87.60 £65.70 £75.60 £56.70 28/02/2021 £57.60 (12/03/2021) £43.20 (12/02/2021)

28/04/2021 Unknown Unknown

28/05/2021 Unknown Unknown

28/06/2021 Unknown Unknown

28/07/2021 Unknown Unknown

27/08/2021 £39 £29.25 £68.40 £51.30 £39 £29.25 £32.40 £24.30 £39 £29.25 £39 £29.25 £39 £29.25 28/08/2021 Unknown Unknown

28/09/2021 £39.00 (27/09/2021) £29.25 (27/09/2021)

28/10/2021 Unknown Unknown

28/11/2021 Unknown Unknown

13/12/2021 £39 £29.25 £39 £29.25 £36 £27 £46.80 £35.10 £36 £27 £43.80 £32.85 £36 £27 £36 £27 28/12/2021 Unknown Unknown

27/01/2022 Unknown Unknown

27/02/2022 Unknown Unknown

27/03/2022 Unknown Unknown

27/04/2022 Unknown Unknown

27/05/2022 Unknown Unknown

27/06/2022 Unknown Unknown

9 CAS-93727-X0C8 27/07/2022 Unknown Unknown

27/08/2022 Unknown Unknown

27/10/2022 Unknown Unknown

27/11/2022 Unknown Unknown

22/12/2022 £39 £29.25 £47.40 £25.55 £39 £29.25 £39 £29.25 £37.20 £27.90 £42 £31.50 27/01/2023 Unknown Unknown

27/02/2023 Unknown Unknown

17/05/2023 £42.00 £31.50 £39.00 £29.25 £48.00 £36.00 £36.00 £27.00 01/06/2023 £39.00 £29.25

10 CAS-93727-X0C8 Appendix Three

Scheme Rules

Rule 7.1.1

Where in respect of a member a participating employer has elected to use the Scheme to:

(a) fulfil its duties under:(i) in relation to Great Britain, section 2(1) (by virtue of section), 3(2), 5(2) or 7(3) of the 2008 Act; or(ii) in relation to Northern Ireland, section 2(1) (by virtue of section), 3(2), 5(2) or 7(3) of the 2008 NI Act), or

(b) arrange for a worker to become a member of the Scheme within article 19(2A) of the Order,

from the date that admission to membership or the making of contribution arrangements in relation to that member takes effect, the participating employer shall pay and the Trustee shall accept such contributions as may be required in order for the Scheme to meet the quality requirement referred to in Part 1 of the 2008 Act (Part 1 of the 2008 NI Act), or the alternative requirement referred to in Part 1 of the 2008 Act (or Part 1 of the 2008 NI Act), in relation to the member, having regard to the contributions being paid by the member under rule 9.1.

Section 20 Pensions Act 2008

20 Quality requirement: UK money purchase schemes

(1) A money purchase scheme that has its main administration in the United Kingdom satisfies the quality requirement in relation to a jobholder if under the scheme—

(a) the jobholder's employer must pay contributions in respect of the jobholder;

(b) the employer's contribution, however calculated, must be equal to or more than 3% of the amount of the jobholder's qualifying earnings in the relevant pay reference period;

(c) the total amount of contributions paid by the jobholder and the employer, however calculated, must be equal to or more than 8% of the amount of the jobholder's qualifying earnings in the relevant pay reference period.

11