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	First-tier Tribunal (General Regulatory Chamber)
You are here: BAILII >> Databases >> First-tier Tribunal (General Regulatory Chamber) >> Nevona Ltd v Pensions Regulator [2025] UKFTT 470 (GRC) (01 May 2025) URL: https://www.bailii.org/uk/cases/UKFTT/GRC/2025/470.html Cite as: [2025] UKFTT 470 (GRC)

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First-tier Tribunal
(General Regulatory Chamber)
Pensions

		Heard by Cloud Video Platform Heard on: 28th April 2025
		Decision Given On: 1 May 2025

Decision: The appeal is Dismissed

REASONS
1. This is a reference application in relation to the Respondent's Fixed Penalty Notice ("FPN") number 139856581349, issued on 5^th September 2024. For convenience the reference application is referred to as "the Appeal".
2. The Tribunal received and considered a bundle of documents, and the parties attended an oral hearing by Cloud Video Platform.
3. The Tribunal is satisfied that this was a fair and just way to decide the Appeal.

Relevant law

4. Under the Pensions Act 2008 (the "2008 Act"), employers are required to enrol "job holders" in occupational or workplace personal pension schemes. The Pensions Regulator ("the Regulator") monitors compliance with these requirements.
5. Under s11 of the 2008 Act, an employer who is subject to automatic enrolment duties must give prescribed information to the Regulator, known as a declaration of compliance. This information, and the time periods in which it must be provided, are prescribed by the Employers' Duties (Registration and Compliance) Regulations 2010 (the "2010 Regulations"):

a. Regulation 3(1) requires the employer to provide information to the Respondent within five months of the "staging date" (the date on which automatic enrolment legislation first applies, usually the date on which staff are employed).

b. Regulation 4(1) requires the employer to provide re-enrolment information within five months of every third anniversary of the staging date.

6. Under s35 of the 2008 Act, the Regulator can issue a Compliance Notice if an employer has contravened one of more of its employer duties. A Compliance Notice requires the employer to take certain steps in order to comply with these duties. It will usually specify a date by which this must be done.
7. The Regulator can issue a FPN if an employer has failed to comply with a compliance notice (s40 of the 2008 Act). This requires the employer to pay a penalty within a specified period. The amount of a fixed penalty is £400, set by regulation 12 of the 2010 Regulations.
8. An employer can make a reference to the Tribunal in respect of the issue of a notice and/or the amount of the penalty payable under the notice (s44 of the 2008 Act). This is only permitted if the Regulator has reviewed the notice or if an application for a review has been made to the Regulator under s43. Under s103 (3) of the Pensions Act 2004, 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 on the evidence presented to it (which may be different from the evidence presented to the Regulator). 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)).
9. On determining the reference, the Tribunal must remit the matter to the Regulator with such directions (if any) as it considers appropriate.

The Appeal

10. Mr Ganga Sagar Bandari is the sole Director of the Appellant company.
11. The Appellant company first employed staff on 1^st November 2017, the "staging date". It made its first declaration on 11^th February 2018.
12. Further declarations of compliance were therefore due on 31^st March 2021 and again on 30^th May 2024.
13. In January 2021 a redeclaration was made, which stated that the Appellant had no qualifying employees.
14. The Respondent states that correspondence was sent to the Appellant by email to remind it of its duty to provide the May 2024 declaration. There was a suggestion that those were not received but I did not consider it necessary to make a finding on that point.
15. On 30^th May 2024, the updated prescribed information was not provided to the Respondent and the Respondent therefore wrote to the Appellant, issuing a Compliance Notice on 10th July 2024. A revised staging date (date for submitting a further declaration of compliance) of 20^th August 2024 was set out. The Appellant claims, in its appeal form, that an attempt was made to register online that same month but it was unsuccessful, possibly owing to a technical error.
16. On 2^nd August 2024 a phone call was made by the Respondent to the Appellant. Mr Bandari took the call and accepted that a declaration of compliance was required of the Appellant. He stated that it was in hand.
17. The FPN, for £400, was subsequently issued on 5^th September 2024.
18. A review was requested and undertaken and, on 10^th October 2021, the FPN was upheld by the Respondent.
19. The declaration of compliance was filed by the Employer on 26^th September 2024.
20. The Appellant filed its appeal with the Tribunal on 22^nd October 2024. The Appellant argued that:

a. It had had no employees between January 2020 and June 2024, when it had registered with HMRC under a new PAYE reference;

b. It received the July 2024 compliance notice but no prior correspondence;

c. Nothing further was received until the FPN in September 2024;

d. Mr Bandari attempted to enrol staff as required in July 2024 but experienced technical difficulties;

e. The Appellant acknowledged that it had missed the compliance deadline but stated that this was unintentional;

f. As a small business with cash flow difficulties, the Appellant invited the Tribunal to direct that the FPN be withdrawn.

21. In its response to the appeal, the Respondent submitted that:

a. The grounds set out did not amount to a reasonable excuse for the failure;

b. There was no record of the Appellant contacting the Respondent, attempting to complete its declaration of compliance before 26^th September 2024;

c. It is for employers to ensure that they understand their legal obligations towards their employees so, even if the letters prior to the Compliance notices were not received, that is of no relevance;

d. The statutory notices were issued to the correct address as per Companies House and the Appellant does not appear to dispute their receipt;

e. The Respondent also sought to alert the Appellant to its statutory duty in a phone call on 2^nd August 2024. No apparent difficulties in using the online system were raised in that call;

f. the Appellant contacted the Respondent on the 11 September 2024 regarding the Fixed Penalty Notice, confirming that the underlying Employer Duties had not been complied with. Therefore the Appellant could not have informed the Respondent of the steps they had taken with respect to re-enrolment and completed the re-declaration of compliance in advance of this in July.

The evidence

22. I read, and took account of, an 81 page bundle submitted by the Respondent. I heard submissions from Mr Gharib, for the Respondent and Mr Bandari, for the Appellant.
23. The Appellant told the Tribunal that the business, a franchised petrol station business, had ceased trading in 2019, when it handed in its franchise license.
24. This was supported by the nil declaration made in January 2021.
25. The Appellant had then had to go to India on 15^th November 2019. He had intended to stay for 2-3 months but had got extremely ill with Coronavirus and was in ICU for 15 days. He ended up unable to return to the UK, through lack of flights and illness, until 10^th October 2021.
26. On his return, the Appellant sought to obtain a new franchise in a new location. This he did, but the premises was some 78 miles from his home, where he lives with his wife and son. He was the sole worker in the business from the time he took the franchise in April 2024 until July 2024, when he took on his first employees.
27. His understanding at that point was that he would have to start again with registering staff because he had a new PAYE reference with HMRC. He was expecting, therefore, to have a new staging date and a five month window in which to provide the statutory information to the Regulator.
28. He conceded, however, that when he received the Compliance Notice in July 2024, he did not seek to query his position, but accepted that it was as set out in the Notice.
29. On this point, Mr Gharib submitted that it would have been open to the Appellant to take a different course of action: he could have de-enrolled the business when it ceased trading, and started the process again with the new staff. That would have given him a five month window in which to provide new information. As it was, the business remained enrolled and therefore the three yearly declaration remained a requirement. The Appellant had demonstrated its awareness of this position when it had declared, in January 2021, that it employed no staff who were enrolled in the scheme.
30. Mr Gharib submitted that no request was made of the Respondent by the Appellant, despite ample opportunity, to query its position, and that the acceptance of the Compliance Notice indicated that there was no reason not to make payment.
31. Mr Gharib also submitted that the phone call made on 2^nd August served as a reminder to the Appellant to file the relevant information and that in that call the Appellant conceded that he was aware of his responsibilities and that it was in hand.
32. In his review request, submitted on 2^nd October 2024, the Appellant appears to accepted that it was bound by the relevant duties. In that same document, and indeed in others within the bundle, it is acknowledged that the compliance notice of 10^th July was received and that Mr Bandari accepted that the relevant re-declaration needed to be made.
33. In submissions, the Respondent noted that HMRC data suggested that there had been staff employed from, at latest, June 2024, as conceded in the appeal form. He was unclear as to when, in fact, HMRC evidence suggested that employees had started work and the HMRC evidence was not included in the bundle. Regardless, a nil declaration would have been required if there were no staff employed at the material time (by regulation 30^th May 2024 and, as extended by the compliance notice, 20^th August 2024).
34. In his oral evidence, Mr Bandari submitted that he had employed staff from July 2024, not June 2024, as was stated on the appeal form.
35. Either way, I find that staff were employed at the time he received the compliance notice and on 20^th August 2024, the time at which the declaration was due. I also find that, regardless of whether staff were employed, the Appellant was required to make the declaration.
36. Mr Bandari conceded in his oral submissions that he understood, at least from the point that he received the compliance notice in July, that the duty to file a declaration of compliance applied. He was clear that he had taken action as soon as the Compliance Notice had been received. He had encountered difficulties and had subsequently forgotten to ensure that compliance was achieved. He cited the distance he was travelling to work, the fact that he was working alone in the business and the fact that he was extremely tired as reasons for his failure to comply.
37. Mr Bandari stated that he did not have a history of poor compliance and this was not disputed by the Respondent's representative.
38. The Respondent confirmed that the employer had submitted its declaration on 26^th September 2024 and was now compliant.
39. There was no evidence to suggest that there had been any shortfall in payments into the pension fund.

Discussion and issues

40. In order to determine this appeal the Tribunal needed to consider the following question: did the Appellant have a reasonable excuse for non-compliance with the notice?
41. I have a huge amount of sympathy with the position of the Appellant. Mr Bandari was working hard to set up a new business, in which he was the sole worker and for which he was travelling long distances each day.
42. However, on his own evidence, Mr Bandari was aware of his responsibilities, at least from 10^th July 2024, and it was a matter of human error that he simply forgot to ensure that he had complied with them. In this case, therefore, I cannot find that the Appellant had a reasonable excuse for failing to comply with the notice that was issued on 10^th July 2024.
43. I note that the Respondent may still be able to offer the Appellant a payment plan. I would urge the Appellant to make contact with the Respondent and take full advantage of that offer, should it still be available.

Conclusion

44. The Fixed Penalty Notice of 10^th October 2024 is upheld and no further directions are required.

Signed: Judge Sanger

Date: 28^th April 2025