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	First-tier Tribunal (General Regulatory Chamber)
You are here: BAILII >> Databases >> First-tier Tribunal (General Regulatory Chamber) >> Revolver Media Ltd v Pensions Regulator [2025] UKFTT 439 (GRC) (24 April 2025) URL: https://www.bailii.org/uk/cases/UKFTT/GRC/2025/439.html Cite as: [2025] UKFTT 439 (GRC)

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First-tier Tribunal
(General Regulatory Chamber)
Pensions

		Decided without a hearing
		Decision Given On: 24 April 2025

Decision: The appeal is Dismissed.

The fixed penalty notice dated 19 July 2024 and the escalating penalty notice dated 20 August 2024 are confirmed.

REASONS
1. Revolver Media Limited (the "Appellant") has appealed against a fixed penalty notice issued by the Pensions Regulator (the "Regulator") on 19 July 2024 requiring the Appellant to pay a fixed penalty of £400 for failure to comply with an unpaid contributions notice ("UCN"). The Appellant has also appealed against an escalating penalty notice issued on 20 August 2025.
2. The parties have agreed to a paper determination of the appeals. The Tribunal is satisfied that it can properly determine the issues without a hearing within rule 32(1)(b) of The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 (as amended).

The law

3. The Pensions Act 2008 (the "Act") imposes a number of requirements on employers in relation to the automatic enrolment of certain "job holders" in occupational or workplace personal pension schemes.
4. The Regulator has statutory responsibility for ensuring compliance with these requirements, including the requirement to make pension contributions. Under Section 37 of the Act, the Regulator can issue a UCN if it is of the opinion that relevant contributions have not been made on or before the due date. A UCN requires the employer to make payments of relevant contributions by a specified date, and may also require the employer to calculate the amounts of unpaid relevant contributions. A UCN can require an employer to take other steps specified by the Regulator, which may include providing evidence of compliance by a certain date.
5. Under Section 40 of the Act, the Regulator can issue a fixed penalty notice if it is of the opinion that an employer has failed to comply with a UCN. This requires the person to whom it is issued to pay a penalty within the period specified in the notice. The amount is to be determined in accordance with regulations. Under the Employers' Duties (Registration and Compliance) Regulations 2010 (the "2010 Regulations"), the amount of a fixed penalty is £400. An escalating penalty notice can be issued under Section 41 of the Act if there is continued failure to comply with a UCN.
6. Notification may be given to a person by the Regulator by sending it by post to that person's "proper address" (section 303(2)(c) of the Act. The registered office or principal office address is the proper address on which to serve notices from the Regulator on a body corporate, as set out in section 303(6)(a) of the Act (applied by section 144A of the Act). Under Regulation 15(4) of the 2010 Regulations, there is a presumption that a notice is received by a person to whom it is addressed. This includes UCNs issued under the Act. A mere assertion that a notice was not received is not sufficient to overturn the statutory presumption of service (London Borough of Southwark v (1) Runa Akhter & (2) Stel LLC [2017] UKUT 150).
7. Section 44 of the Act permits a person to whom a fixed penalty notice has been issued to make a reference to the Tribunal in respect of the issue of the notice and/or the amount of the penalty payable under the notice. A person may make a reference to the Tribunal provided that an application for a review has first been made to the Regulator under Section 43 of the Act. Under Section 103(3) of the 2004 Act, the Tribunal must then "determine what (if any) is the appropriate action for the Regulator to take in relation to the matter referred to it." The Tribunal must make its own decision following an assessment of the evidence presented to it (which may differ from the evidence presented to the Regulator), and can reach a different decision to that of the Regulator even if the original decision fell within the range of reasonable decisions (In the Matter of the Bonas Group Pension Scheme [2011] UKUT B 33 (TCC)). In considering a penalty notice, it is proper to take "reasonable excuse" for compliance failures into account (Pensions Regulator v Strathmore Medical Practice [2018] UKUT 104 (AAC)). On determining the reference, the Tribunal must remit the matter to the Regulator with such directions (if any) as it considers appropriate.

Facts

8. The facts are set out in the Appellant's notice of appeal document and the Regulator's response document, including the annexes attached to those documents. I find the following material facts from those documents.
9. The Appellant is the employer for the purposes of the various employer duties under the Act. The Regulator sent a UCN to the Appellant on 23 May 2024, after receiving a report from the Appellant's pension scheme provider that contributions due to be paid between 1 November 2023 and 31 March 2024 were unpaid.
10. The UCN was sent to the Appellant's registered office address which is C/O Tordoff & Co Accountants, 11 Thornesgate Mews, Wakefield, WF2 8FJ.
11. The Appellant did not comply by the deadline of 3 July 2024, and so the Regulator issued a fixed penalty notice ("FPN") to the Appellant on 19 July 2024. The Appellant did not comply with the UCN, and the Regulator issued an escalating penalty notice ("EPN") on 20 August 2024. Failure to comply would result in an escalating penalty of £500 per day as of 17 September 2024.
12. The Appellant says in its notice of appeal that it first contacted the Regulator immediately upon becoming aware that its accountant had received a reminder of the EPN and escalating penalty dated 17 September 2024. The bundle contains a note of a telephone call from Mr Barnes of the Appellant on 19 September 2024 advising that it did not receive any communication prior to the escalating penalty notice. The recording of that telephone call shows that during that call Mr Barnes confirmed receipt of an email, found in the Appellant's junk email folder during the call, dated 12 June 2024 advising the Appellant of unpaid contributions and to contact its pension provider, pay the missing contribution and provide evidence of having done so to the Regulator to avoid risking a fine.
13. The Appellant emailed the Regulator on 10 October 2024 to seek a review of the decisions to impose the FPN and EPN. The request was made outside the 28 day limit, but the Regulator decided of its own initiative to carry out a review of the EPN under section 43 of the Pensions Act 2008 and informed the Appellant on 18 October 2024 that, following its review, it had decided to confirm the EPN. It declined to carry out a review of the FPN.

Evidence

14. I reviewed and took account of a bundle of 93 pages of documents.

Appeal grounds

15. The Appellant seeks to appeal both the FPN issued on 19 July 2024 and the EPN issued on 20 August 2024.
16. The Appellant says that it did not receive any of the correspondence, including the FPN and EPN, until 17 September 2024. The registered office was the address of the Appellant's accountant, and this was the first document which the accountant forwarded to the Appellant. It relies on a letter from Christopher Tordoff dated 23 September 2024 stating that the first letter he had received from the TPR was on 17 September 2024. The Appellant says that once it did receive this information it acted immediately and that all outstanding contributions to which the UPN related were paid by 21 October 2024.
17. The Appellant seeks reduction or removal of the penalties imposed by the FPN and EPN. I accept that the requirement to pay £400 is a significant burden for a small business such as the Appellant. The escalating penalty is an extremely significant amount for a small business. The fact that the penalty is burdensome is inherent in it being a 'penalty'. The amount is prescribed by regulations made under the Pension Act 2008. Its amount reflects both the importance of complying with the employer duty provisions and the seriousness with which a failure to do so will be viewed. The Regulator has no discretion to issue a penalty notice for a lesser amount, nor does the Tribunal have the power to direct substitution of a lesser penalty.

Discussion and Conclusions

18. The Regulator's primary position is that it considers that the Grounds of Appeal do not disclose a reasonable excuse for the failure to comply with the UCN dated 23 May 2024.
19. The Regulator seeks to rely on the presumption of service. The Regulator says that all notices were issued to the registered office address. I note that they were sent to the Appellant's registered office address which is C/O Tordoff & Co Accountants, 11 Thornesgate Mews, Wakefield, WF2 8FJ. The Appellant changed its registered office to this address by filing notice at Companies House on 10 January 2024, so I am satisfied this was the correct address at the material time. I also note that this was confirmed to be the correct address by Mr Barnes during the telephone call on 19 September 2024.
20. I note the position in Akhter that a mere assertion of non-receipt is not sufficient to rebut the presumption of service. The presumption does apply here, as the notices were sent correctly to the Appellant's registered office address. I have therefore considered whether the Appellant has provided sufficient evidence to rebut this presumption.
21. The Regulator argues that the Appellant has failed to provide any persuasive argument or evidence regarding non-receipt which amounts to more than a bare assertion that it was not received. The letter from Mr Tordoff dated 23 September 2024 simply states that the letter dated 17 September 2024 was the first he had received from the Regulator and provides no explanation as to why this letter was received at the registered address whereas the others were not. Although Mr Tordoff is a professional adviser, I agree with the Regulator that his evidence is not verified by a statement of truth and so I place only limited weight on it. I also agree that it asserts that the documents were not received but provides no further explanation.
22. On the balance of probabilities, I therefore find that the Appellant did receive the UCN, FPN and EPN in that they were correctly sent to its registered address. Under the 2004 Act, the Regulator can serve this notice on a limited company by sending it to either the company's registered office or to its principal office.
23. The remaining issue is whether the Appellant has a reasonable excuse for failing to comply with the UCN. If they do, the fixed penalty and escalating penalty notices should not have been issued.
24. The fact that the outstanding contributions were paid by 21 October 2024, 2 months after issue of the EPN and 5 months after issue of the UCN, does not, in my view, excuse a failure to comply. It is an employer's responsibility to be aware of its obligations under the Act in any event. I find that the fact that Mr Barnes of the Appellant confirmed in his telephone call on 19 September 2024 that the Appellant had not at that time paid the contributions as it had prioritised other expenses suggested that the Appellant was aware of its obligations in this regard.
25. For the above reasons I am satisfied that the Appellant has not provided a reasonable excuse for not complying with the UCN.
26. I determine that issuing the Fixed Penalty Notice and the Escalating Penalty Notice was the appropriate action to take in this case.
27. I remit the matter to the Regulator and confirm the Fixed Penalty Notice and the Escalating Penalty Notice. No directions are necessary

Signed Judge Harris

Date 22 April 2025