Irena Kisielewska (Meltaway) v The Pensions Regulator

1. This reference concerns a Fixed Penalty Notice (“FPN”) which was issued by the Pensions Regulator (“the Regulator”) on 5 th February 2025 (Notice number: 101926965985) to the Appellant.

2. The FPN was issued under section 40 of the Pensions Act 2008 (“ the Act ”), and notified the Appellant that they were required to pay a financial penalty of £400 for failing to comply with the requirements of a Compliance Notice, which had been issued under section 35 of the Act on 11 th December 2024.

3. The Regulator carried out a review of the decision to impose the FPN and informed the Appellant on 15 th February 2025 that the FPN had been upheld. The Law

4. The Pensions Act 2008 imposed a number of legal obligations on employers in relation to the automatic enrolment of certain ‘jobholders’ into occupational or workplace personal pension schemes. The Pensions Regulator has statutory responsibility for securing compliance with these obligations and may exercise certain enforcement powers.

5. Each employer is assigned a ‘staging date’ from which the timetable for performance of their obligations is set. The Employer’s Duties (Registration and Compliance) Regulations 2010 specify that an employer must provide certain specified information to the Regulator within five months of their staging date or duties start date. This is known as a ‘Declaration of Compliance’. An employer is required to make a re-declaration of compliance every three years. Where this is not provided, the Regulator can issue a Compliance Notice and then a Fixed Penalty Notice for failure to comply with the Compliance Notice. The prescribed Fixed Penalty is £400.

6. Under section 44 of the 2008 Act , a person who has been issued with a Fixed Penalty Notice may make a reference to the Tribunal provided that a review has been carried out or an application for review has been made to the Regulator. The role of the Tribunal is to make its own decision on the appropriate action for the Regulator to take, considering the evidence before it.

7. The Tribunal may confirm, vary or revoke a penalty notice and when it reaches a decision, must remit the matter to the Regulator with such directions (if any) required to give effect to its decision. Evidence

8. The parties had agreed to the matter being determined on the papers, and the Tribunal read and considered a 111-page bundle. The Facts

9. The Appellant’s duties start date was 7 th June 2021, and the deadline for the Appellant to complete and submit its Re-Declaration was therefore five months after the three-year anniversary of that date. In other words, the Appellant was required to complete and submit the Re-Declaration by 6 th November 2024.

10. The Regulator sent two emails to the Appellant on 29 th May 2024 and 7 th August 2024, reminding them of their automatic re-enrolment duties and how to comply. Nevertheless, the Appellant failed to submit its Re-Declaration by the deadline of 6 th November 2024 and the Regulator therefore sent out a letter to the Appellant’s registered address on 25 th November 2024, reminding the Appellant that they were required to submit the Re-Declaration by 6 th November 2024, and providing them with an additional 14 days in which to comply (i.e. by 9 th December 2024).

11. There was no contact from the Appellant, however, and on 11 th December 2024, the Regulator issued a Compliance Notice, requiring the Appellant to meet its obligation and submit its Re-Declaration by a second extended deadline of 21 st January 2025. That Compliance Notice set out that a £400 penalty may be imposed in the event of a failure to comply.

12. The Appellant failed to submit its Re-Declaration by that extended deadline and the Regulator therefore issued a FPN on 5 th February 2025, requiring the Appellant to pay a financial penalty of £400.

13. On 20 th March 2025, the Regulator issued a penalty reminder letter, and on 3 rd April 2025, the Regulator issued a letter before action.

14. The Appellant made contact with the Regulator on 6 th February 2025 when it submitted a request for the FPN to be reviewed. The Appellant submitted its Re-Declaration of Compliance on the same day. A review was carried out by the Regulator, but the decision to issue the FPN was upheld.

15. The Appellant submitted this reference to the Tribunal on 7 th March 2025. Submissions

16. In the Notice of Appeal, the Appellant sets out the following grounds: (i) That the Re-Declaration of Compliance was submitted as soon as this failure was brought to their attention. (ii) This failure arose as a result of not having received any correspondence from the Regulator, rather than any refusal to comply. (iii) That they were not aware of the need to complete the re-enrolment and re-declaration every three years. (iv) That they have not been able to find any emails from the Regulator in their email inbox or spam folder.

17. In response, the Regulator makes the following submissions: (i) All postal correspondence, including the Compliance Notice and the Fixed Penalty Notice were sent to the Appellant’s registered address, which had been provided by the Appellant when its Declaration of Compliance was submitted in August 2021. That is the same address given by the Appellant in the Notice of Appeal. (ii) The email address used to send reminders to on 29 th May 2024 and 7 th August 2024 was the same address used by the Appellant when they submitted their Declaration of Compliance in August 2021. Again, the same email address has been given by the Appellant in their Notice of Appeal. (iii) The Respondent is not obliged to send out reminders, which were simply sent out of courtesy, to remind employers of their upcoming duties under the legislation and to provide guidance and support, in the event of difficulty. (iv) As a responsible employer, it is for the Appellant to be aware of their legal duties and to ensure full compliance with them. Late or eventual compliance does not excuse the failure or comprise exceptional grounds to revoke a penalty served following the expiry of the deadline in a statutory compliance notice. (v) The Appellant had already completed and submitted its initial Declaration of Compliance in August 2021 and so should have been aware of how to complete and submit the Re-Declaration. (vi) The Appellant was given an additional 42 days beyond the five-month deadline to comply with its Re-Declaration obligations. This was, objectively and by any reasonable standard, more than an adequate period of time in which to comply with the requirement. (vii) The Appellant has not provided a reasonable excuse for the failure to comply with the Compliance Notice, and the decision to issue the FPN was fair, reasonable and proportionate. Conclusions

18. The timely provision of information to the Regulator, so that it can ascertain whether an employer has complied with its duties under the Act is crucial to the effective operation of the automatic enrolment scheme. Unless the Regulator is provided with this information, it cannot effectively secure the compliance of employers with their duties. It is for this reason that the provision of a declaration of compliance within a specified timeframe is a mandatory requirement.

19. Whilst the Appellant eventually complied with the obligation to complete and submit a Re-Declaration of Compliance, this was after the deadline for doing so had passed, and following a further period of grace in which the Regulator extended this deadline. That eventual compliance came about after the FPN had been issued and received at the registered address of the company. I am satisfied that the Compliance notice was also received at that same address before that time, and no evidence has been advanced by the Appellant to support the contention that all earlier correspondence, either by email or by post, had not been received. Of particular note is that the postal address and email address submitted by the Appellant on the Notice of Appeal matches the email and postal address used by the Regulator to send all of its earlier communications.

20. Failing to act upon a letter or Notice does not provide an excuse for failing to comply with the statutory obligations imposed by Parliament upon a company. Whilst a Regulator may send reminders to a company to adhere to its legal obligations, this does not serve to remove the duty of an employer to be aware of and adhere to the regulatory regime which they must abide by. That duty falls to the employer alone, and it is the employer’s responsibility to ensure compliance.

21. In this instance, the Appellant has not raised a reasonable excuse for failing to comply with the Compliance Notice.

22. We are satisfied that the issuing of the FPN was the appropriate action to take in these circumstances. No consideration may be given to a reduction to the £400 penalty fee, as this sum is prescribed by the Employers’ Duties (Registration and Compliance) Regulations 2010.

23. The appeal is dismissed and the matter is remitted to the Regulator. Signed Date: Judge Armstrong-Holmes 24 th November 2025