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	First-tier Tribunal (General Regulatory Chamber)
You are here: BAILII >> Databases >> First-tier Tribunal (General Regulatory Chamber) >> Buildings UK Midlands Ltd v Pensions Regulator [2025] UKFTT 472 (GRC) (01 May 2025) URL: https://www.bailii.org/uk/cases/UKFTT/GRC/2025/472.html Cite as: [2025] UKFTT 472 (GRC)

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First-tier Tribunal
(General Regulatory Chamber)
Pensions

		Decided without a hearing Heard on: 28th April 2025
		Decision Given On: 01 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 146703782624, issued on 14^th August 2024 and Escalating Penalty Notice ("EPN") number 260429642465 issued on 13^th September 2024 . For convenience the reference application is referred to as "the Appeal".
2. The Tribunal received and considered a 132 page bundle of documents, and the parties agreed to the matter being determined on the papers.
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. The Regulator sends notices by post to an employer's "proper address" (s303(3)(c) of the Pensions Act 2004 (the "2004 Act")). The registered office or principal office address is the proper address on which to serve notices on a body corporate, as set out in s303(6)(a) of the 2004 Act (applied by s144A of the 2008 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 compliance and fixed penalty notices issued under the Act.
9. 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)).
10. In an appeal, the burden of proof rests with the Appellant. The relevant standard of proof is the balance of probabilities.
11. On determining the reference, the Tribunal must remit the matter to the Regulator with such directions (if any) as it considers appropriate.

The Appeal

12. There is no dispute that the Appellant company is an employer, with duties to enrol employees in a relevant pension scheme.
13. The Appellant has provided copies of letters dated 8^th January 2024, March 2024 (no precise date is given) and May 2024 (again, no precise date is given) and in those letters, addressed to Mr James Price, Director of the Appellant Company, the Appellant is advised of its automatic enrolment duties and invited to take action to avoid a penalty.
14. On 18^th June, a Compliance Notice was issued, directing the Appellant to declare compliance by 29^th July 2024.
15. No such declaration was received.
16. A call was made to the Appellant by the Respondent on 1 July 2024 and the person who answered the call was recorded to have hung up the phone.
17. The FPN, for £400, was subsequently issued on 14^th August 2024.
18. Further to that, and again having received no response or declaration, the Respondent issued and Escalating Penalty Notice on 13^th September 2024. The EPN explained that, if the requirements of the Compliance Notice were not met by 10^th October 2024, a daily penalty of £500 would accrue from 11^th October.
19. A review was requested on 7^th November and, on 10^th October 2021, the FPN was upheld by the Respondent.
20. The declaration of compliance was filed by the Employer on 26^th September 2024.
21. The Appellant filed its appeal with the Tribunal on 11^th December 2024. The Appellant argued that:

a. the business is located next to a traveller site and "therefore we were not in receipt of the paperwork within the required deadline";

b. the application was submitted as soon was possible;

c. there was an internal error on the review form where the name of another company was inserted into the body of the letter; this may mean that correspondence relating to the Appellant's case had in fact been submitted to a different business.

22. 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. It is well established that the Respondent is entitled to rely on the presumption of service of the statutory notices;

c. This is a rebuttable presumption, which the Appellant has failed to overturn;

d. An assertion that the notice was not received is not enough (following London Borough of Southwark v (1) Runa Akhter v (2) Stel LLC 2017 UKUT) and Philip Freeman Mobile Welders Ltd v The Pensions Regulator [2022] UKUT 62 (AAC);

e. If more than a bare assertion has been raised, there is no credible evidence that is enough to prove that the assumption of service has been rebutted;

f. The statutory notices were issued to the correct address as per Companies House and that provided on the appeal form submitted to the Tribunal by the Appellant;

g. Known issues with the receipt of post, such as they are, are not considered to amount to a reasonable excuse;

h. Although it issues reminders, is it not the duty of the Respondent to make employers aware of their legal duties. The obligation to ensure that business is carried out lawfully and in compliance with the relevant regulations rests with the Appellant.

The evidence

23. I read, and took account of, the bundle as described.
24. I note that the letters, as were the subsequent notices, were addressed to Buildings UK Midlands Ltd, Unit 23-24 Broach Road, which accords with the record of the registered address held at Companies House.
25. I do not consider the fact that a typing error in one of the letters, such that another company was named in the body of the letter, is in any way relevant to these proceedings. The address at the top of all the letters and notices was clear.
26. Within the bundle was a witness statement provided by Mr James Price on behalf of the Appellant. In it he wrote simply this:

It is my understanding and belief that that Fixed Penalty Notice... And Escalating Penalty Notice… were not received at my Company Business Premises… in a fair and timely manner.

As stated in my GRC1 Application, the Company Business premises is located nearby a static travelling community site, and I believe the reason that the paperwork was not received by me in good time.

27. For completion I note that this followed the wording on the GRC1 appeal form (noted above) and a note made by the Regulator of a call from Mr Price, on 6^th November 2024 in which he requested a review:

… Also states that he never received any of the letters although sent to the correct address. Claims that they are trading near a travellar [sic] site and their post regularly goes missing

Discussion and issues

28. In order to determine this appeal the Tribunal needed to consider the following questions:

a. Were the notices properly served?

b. If so, did the Appellant have a reasonable excuse for non-compliance with the notice?

29. In coming to this decision I am bound by the burden of proof in this case.
30. The Respondent is indeed entitled to rely on the rebuttable presumption that the notices were served.
31. I am satisfied that, by the provision of its witness statement, the Appellant has done more than make a simple assertion that the relevant documents were not received. I must, therefore, move on to consider whether the Appellant has provided evidence to rebut that presumption in favour of a finding that the notices were not delivered.
32. There is a consistency in the Appellant's assertion that the neighbouring traveller site is somehow relevant to its assertion that there are difficulties with post being received. There is no clarity set out as to why that is the case, or indeed, any evidence as to what the difficulties are.
33. The Appellant has not, at any stage in these proceedings, set out what it says was received and what was not. Mr Price has stated that he believes the notices failed to arrive in a fair and timely manner, but not when they did, in fact arrive. He has not provide any evidence of the way in which post is handled at his business premises and he has not, in fact, stated that either of the notices failed to arrive at all.
34. I therefore find that I am unable to conclude, on the balance of probabilities, that the notices were not delivered. I find that the Appellant has not overturned the presumption of service and therefore that the Compliance Notice and the FPN and EPN were properly served by the Regulator.
35. The Appellant provided no evidence to suggest that there was a reasonable excuse for non-compliance, other than to suggest that it had not received the relevant documentation.
36. It is incumbent on employers to ensure that businesses are compliant in this area, regardless of any reminders received or not received from the Regulator.
37. I do not, therefore, find that there is any reasonable excuse for the Appellant's failure to comply with its obligations.

Conclusion

38. The Fixed Penalty Notice and the Escalating Penalty Notice are both upheld and the matter is remitted to the Respondent. No further directions are required.

Signed: Judge Sanger Date: 28^th April 2025