Decisions:
(1) The reference brought in relation to the Fixed Penalty Notice is struck out pursuant to rule 8(2) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009
(2) The reference brought in relation to the Escalating Penalty Notice is struck out pursuant to rule 8(2) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009
DECISION AND REASONS
Preamble
- By way of a Case Management Directions dated 25 July 2024, Judge Griffin (as she then was) directed that:
"[3] Pursuant to rule 18(2), this case is designated as a lead case in relation to the following issue:
Where a notice under the Pensions Act 2008 was delivered by Royal Mail to the proper address as defined by section 303(6) of the Pensions Act 2004, but did not come to the attention of the person to whom it is addressed, is it open to the person to argue that the notice has not been issued for the purposes of the 2008 Act, with the consequences for the Tribunal's jurisdiction discussed in Philip Freeman Mobile Welders Ltd v The Pensions Regulator (Tribunal procedure and practice - tribunal jurisdiction) [2022] UKUT 62 (AAC) at [34]?"
- As the appeal progressed through The First-tier Tribunal (General Regulatory Chamber) ("the Tribunal"), it became apparent that a number of other important issues were also in contention, and the Tribunal has taken the opportunity to explore these in some depth in this decision.
Introduction
- The Pensions Regulator contends that as a consequence of J.M. Kamau Limited ("the appellant") failing to complete its Re-Declaration of Compliance by the statutory deadline of 30 June 2021, it issued the following notices to the appellant, by post –
(i) a Re-registration Information Provision Breach Compliance Notice ("IPB"), issued on 13 July 2021 under section 25 of the Pensions Act 2008 ("2008 Act").
(ii) a Fixed Penalty Notice ("FPN"), issued on 25 August 2021 under section 41 of the 2008 Act, in the sum of £400; and,
(iii) an Escalating Penalty Notice ("EPN"), issued on 27 September 2021 under section 41 of the 2008 Act, in the sum of £500 per day from 25 October 2025 until such time as the requirements of the Compliance Notice have been met.
- On 1 December 2021, Mr Mburu requested The Pensions Regulator review the FPN and EPN, on the grounds that he had not seen them due to "having no access to the address where the letter was issued as they were 'facing circumstances'". On 19 January 2022, Mr Mburu provided the respondent with further reasons as to why he had not seen both the FPN and EPN, reiterating that he did not have access to the office due to an outbreak of Covid-19 which forced the office to close (due to Government guidance). Mr Mburu added that the appellant company was in the process of relocating to a new office and changing its address with Companies House. Mr Mburu wrote again to the respondent on 9 June 2023 identifying his inability to seek a review in time because the penalty notices had been issued to an address that was inaccessible. I will return to the contents of this letter in more detail below.
- On 8 December 2021, The Pensions Regulator advised the appellant that a review had not been conducted as the request for a review had been received out of time. On 18 June 2023, The Pensions Regulator once again informed the appellant that a review would not be carried out as the request was received after the 28-day deadline. It further advised that a review initiated by The Pensions Regulator would not be possible because it had been more than 18 months since the issuing of the notices.
- Mr Mburu submitted a reference to the Tribunal on 4 July 2023 (in fact there were two references combined into one appeal form). For the purposes of this decision, from hereon in I shall refer to the references as "the appeal". Subsequently, the Tribunal extended time for the submission of the appeal, and, despite the lack of clarity therein, treated the appeal as having been made in relation to both the FPN and the EPN. The Tribunal also treated the appeal as having been made on behalf of the company, rather than by Mr Mburu personally.
- The Pensions Regulator submitted a strike out application to the Tribunal on 1 September 2023. This application was refused by Judge Buckley, in a detailed decision of 16 November 2023. The Upper Tribunal refused The Pensions Regulator permission to appeal Judge Buckley's decision, in a 21-page judgment dated 7 February 2024.
Issues
- The first issue the Tribunal must give consideration to whether it has jurisdiction to determine either of the appellant's appeals, i.e. those made in relation to the FPN and the EPN.
- If the answer to the first issue is 'no' then the Tribunal must strike out the appeal pursuant to Rule 8(2) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009/1976.
- In Philip Freeman Mobile Welders Ltd v The Pensions Regulator (Tribunal procedure and practice - tribunal jurisdiction) [2022] UKUT 62 ("Freeman") - a matter similar to instant appeals involving issues of fact relating to the sending and receipt of The Pensions Regulator's notices, the Upper Tribunal identified as a matter of general concern, the undertaking of such a factual analysis within the confines of a consideration as to whether to strike out an appeal.
- Whilst I take note that that concern, rule 8 of the 2009 Rules is clear, if the Tribunal does not have jurisdiction, then the matter must be struck out. Inevitably, therefore, a factual analysis relevant to whether the Tribunal has jurisdiction must be carried out within the context of a consideration of whether to strike out the appeal. Nevertheless, the underlying rationale of the Upper Tribunal should be heeded. When considering the issue of jurisdiction, the Tribunal should be careful to ensure that the principle of procedural fairness is abided by. Where facts material to the outcome of the decision on jurisdiction are in dispute, then it is unlikely to be appropriate to determine the issue of jurisdiction without a proper opportunity being provided to the parties to prove the matters of fact relied upon.
- Moving on, if it is concluded that the Tribunal does have jurisdiction, then the second issue arises for consideration. Pursuant to section 103(4) of the Pensions Act 2004 ("2004 Act") the Tribunal must "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 Pensions Regulator), and can reach a different decision to that of The Pensions 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 a "reasonable excuse" for compliance failures into account (Pensions Regulator v Strathmore Medical Practice [2018] UKUT 104 (AAC)). It can readily be seen that there may be some cross over between the matters of fact relevant to the issue of jurisdiction, and the issues of fact relevant to "reasonable excuse".
- On determining the appeal, the Tribunal must remit the matter to the Regulator with such directions (if any) as it considers appropriate for giving effect to the decision (section 103(5) of the 2004 Act).
General Legal Framework
- Section 1 of the 2008 Act establishes The Pensions Regulator as a body corporate. The objectives of The Pensions Regulator are set out in section 5 of the Act and are, broadly speaking, to protect the benefits under occupational and personal pensions schemes, to maximise compliance with duties under the Act, and to promote and improve understanding of the good administration of 'work-based pension schemes'. Those duties include the automatic enrolment of employees by employers in a work-place pension scheme: per section 3 of the Act.
- Section 11 of the 2008 Act enables the Secretary of State to make regulations requiring employers to provide The Pensions Regulator with information about action they have taken, or intend to take for the purposes of, inter alia, the setting up or maintenance of a work-place pension scheme. A necessary first stage of this can be the employer providing its name and address to The Pensions Regulator.
- The Pensions Regulator may relevantly issue three types on notice under the 2008 Act. The first is a compliance notice issued under section 35 of the Act. Section 40 of the 2008 Act provides for a fixed penalty notice to be issued if an employer fails to comply with a compliance notice. The Pensions Regulator may issue an escalating penalty notice under section 41 of the 2008 Act, if the employer has, amongst other things, failed to comply with a compliance notice.
- It is prudent to turn next to the Tribunal's jurisdiction, which is derived from section 44 of the 2008 Act:
"(1) A person to whom a notice is issued under section 40 or 41 may, if one of the conditions in subsection (2) is satisfied, make a reference to the Tribunal in respect of—
(a) the issue of the notice.
(b) the amount of the penalty payable under the notice.
(2) The conditions are—
(a) that the Regulator has completed a review of the notice under section 43.
(b) that the person to whom the notice was issued has made an application for the review of the notice under section 43(1)(a) and the Regulator has determined not to carry out such a review. …"
- Review of notices is dealt with in section 43 of the 2008 Act, which provides:
"(1) The Regulator may review a notice to which this section applies—
(a) on the written application of the person to whom the notice was issued, or
(b) if the Regulator otherwise considers it appropriate.
(2) This section applies to—
(a) a compliance notice issued under section 35;
…
(d) a fixed penalty notice issued under section 40.
() An escalating penalty notice issued under section 41.
(3) Regulations may prescribe the period within which—
(a) an application to review a notice may be made under subsection (1)(a).
(b) a notice may be reviewed under subsection (1)(b).
(4) On a review of a notice, the effect of the notice is suspended for the period beginning when the Regulator determines to carry out the review and ending when the review is completed.
(5) In carrying out a review, the Regulator must consider any representations made by the person to whom the notice was issued.
(6) The Regulator's powers on a review include power to—
(a) confirm, vary, or revoke the notice.
(b) substitute a different notice."
- Regulation 15 of the Employers' Duties (Registration and Compliance) Regulations 2010 ("the Employers' Duties Regs"), sets out the following time frame for seeking a review.
"(1) The period within which an application to review a notice may be made under section 43(1)(a) of the Act (written application of a person) is 28 days, starting from the day a notice is issued to a person.
(2) The period within which a notice may be reviewed under section 43(1)(b) of the Act (review by the Regulator) is 18 months, starting from the day a notice is issued to a person.
(3) The presumptions in paragraph (4) apply where notices to which section 43 applies are issued (including compliance notices issued under section 51 of the Act and penalty notices issued under section 52 of the Act).
(4) For the purposes of this regulation, it is presumed that—
(a) where a notice is given a date by the Regulator, it was posted or otherwise sent on that day;
(b) if a notice is posted or otherwise sent to a person's last known or notified address, it was issued on the day on which that notice was posted or otherwise sent; and
(c) a notice was received by the person to whom it was addressed."
Issue 1: Does the Tribunal have jurisdiction to consider the references (appeals)?
- I turn first to consider whether the Tribunal has jurisdiction to consider either the appeal against the FPN, or the appeal against the EPN. Such a consideration involves the Tribunal posing, and answering, the following two questions?
(A) As a matter of fact, was the FPN and/or EPN issued to the appellant in a manner prescribed by section 303 of the of the Pensions Act 2004, and, if so, when?
(B) As a matter of law, was the FPN and/or the EPN received by the appellant and, if so, when?
A. As a matter of fact, was the FPN and/or EPN issued to the appellant in a manner prescribed by section 303 of the of the Pensions Act 2004, and, if so, when?
Legal Framework
- It is clear from section 44(1), that the issuing of a notice under section 40 (FPN) or section 41 (EPN) of the 2008 Act, is a necessary pre-requisite to the bringing of an appeal before the Tribunal.
- If the Tribunal were to conclude that the notice under appeal had not been issued by The Pensions Regulator, as the appellant in the instant matter contends, then the Tribunal would have no jurisdiction to consider the appeal.
- Section 303 of the 2004 Act makes provision for how and upon whom a notification or document may be provided under that Act. This provision also applies to notices issued under the 2008 Act - see section 144A of the 2008 Act. By section 303:
"…
(2) The notification or document may be given to the person in question–
(a) by delivering it to him,
(b) by leaving it at his proper address, or
(c) by sending it by post to him at that address.
(3) The notification or document may be given or sent to a body corporate by being given or sent to the secretary or clerk of that body.
(4) The notification or document may be given or sent to a firm by being given or sent to—
(a) a partner in the firm, or
(b) a person having the control or management of the partnership business.
(5) The notification or document may be given or sent to an unincorporated body or association by being given or sent to a member of the governing body of the body or association.
(6) For the purposes of this section and section 7 of the Interpretation Act 1978 (c. 30) (service of documents by post) in its application to this section, the proper address of a person is—
(a) in the case of a body corporate, the address of the registered or principal office of the body,
(b) in the case of a firm, or an unincorporated body or association, the address of the principal office of the firm, body, or association,
(c) in the case of any person to whom the notification or other document is given or sent in reliance on any of subsections (3) to (5), the proper address of the body corporate, firm or (as the case may be) other body or association in question, and
(d) in any other case, the last known address of the person in question."
- The appellant is a body corporate and, therefore, section 303(6)(a) of the 2004 Act applies to the instant matter. The "proper address" is the address of the registered or principal office of the body corporate. It can also be seen that by section 303(6)(c) in the case of notification in reliance on section 303(3) [a non-prescriptive provision], which relates to notification to an individual with a specified role within a body corporate, that notification should also be sent to the "proper address" .
- Although not relevant on the facts of the instant appeals, by section 304 of the 2004 Act, a notice that is authorised by section 303 to be given or sent to a particular person, may be transmitted by means of "an electronic communications network" where the particular person has "indicated to the person making the transmission [their] willingness to receive notifications or documents transmitted in the form and manner used." Section 304 also prescribes the manner in which such an indication can be provided.
- Moving on, consideration of whether a notice was, as a matter of fact, received by the proposed recipient is relevant to the assessment of whether a notice was issued by The Pensions Regulator (Freeman at [33]). This is to be distinguished from the question of whether a notice was received as a matter of law (Freeman at [34]).
- It is for The Pensions Regulator to establish on the evidence that an IPB, FPN or EPN was issued (Freeman at [32]).
Factual Background
General evidence on The Pensions Regulator's process
- Cathy Doherty gave evidence on behalf of The Pensions Regulator, both by way of a written statement dated 10 December 2024, and orally on 16 January 2025.
- For reasons which will become apparent, I have set out the evidence of Ms Doherty in some detail below, including those parts which are not directly relevant to the instant appeals.
- Ms Doherty was formerly a Compliance & Enforcement Manager at Capita plc, a company to which The Pensions Regulator outsourced its bulk correspondence, until 30 September 2021.
- On 1 June 2021, Ms Doherty transferred employment to The Pensions Regulator. At The Pensions Regulator, Ms Doherty supports the Business Lead for Automatic Enrolment in order to ensure employers comply with their automatic enrolment duties under the 2008 Act, and she also oversees the Reviews team, which is responsible for conducting reviews of statutory notices where requested, or where it is otherwise appropriate to conduct a review.
- Ms Doherty has been involved in setting up processes and procedures for managing the service, which includes liaising with third parties in order to create and despatch enforcement correspondence. She has set up internal checking (or 'reconciliation') procedures, with the aim of ensuring that The Pensions Regulator has a robust record of all automatic correspondence being issued, and that this correspondence is being issued with consistency and accuracy.
- Ms Doherty previously gave oral and written evidence in this Tribunal, before Judge Neville (as he then was) in Freeman [2024] UKFTT 91 (GRC). It would be helpful to set out that evidence, at least insofar as it is set out in the decision itself.
- In Freeman, Ms Doherty provided evidence that Capita used a customer relationship management system ("CRM") to facilitate the sending of notices. The CRM tracked and recorded all written and telephone communications with employers subject to automatic enrolment, in order to provide an audit trail. Both The Pensions Regulator and Capita described the engagement with these employers as a 'journey', which was also the phrase used by Ms Doherty in the instant appeals.
- The journey began with reminder letters and emails advising employers of their obligations, including the staging date, and the date when a Declaration of Compliance must be submitted. Where necessary, it continues up to the point of enforcement by means of compliance and penalty notices.
- Ms Doherty continued her evidence before in Freeman, by averring that the CRM automatically decided which employers ought to be sent which notice, working from data provided by The Pensions Regulator, and using a system of rules that reflect The Pensions Regulator's desired approach. For example, if the CRM detected that a particular employer has not complied with its obligations, and that a set period of time has passed since a IPB had been sent, there is no special flag or suspension recorded, and no pending review or Tribunal proceedings, then it will issue an FPN. This is all done without any human input. The details and template for the notice would be sent to another contractor ("the contractor") that runs a mail merge to produce, print and send the notice by first class post. The contractor then sent a daily email to Capita containing the numbers of letters and notices issued for each type of communication, so that this this could be reconciled against the expected numbers produced by the CRM. PDF copies of the sent notices were saved, together with the date of issue.
- Despite this sophisticated system, the record that was available to Capita did not produce an explicit date of postage. Instead, it showed the 'end date,' meaning the date on which the automated process for sending a notice – including electronic record keeping – was completed. It was said that Capita were confident that whenever its CRM identified that a notice should be sent, it is received by the contractor and then posted within 24 hours. This confidence derived from a series of checks and reconciliations. Where there have been errors, these have always been picked up in time to still maintain compliance with that 24-hour period. Ms Doherty concluded, in Freeman, by maintaining that:
"Because the system is automated as described the chances of a letter or notice not being generated – once the system identifies a letter or notice needs to be sent and triggers it to be created and despatched – are nil. Once a document is created, it is always sent out to an employer as the process does not rely on any manual or human intervention for letters to be printed and despatched. We have never found an error whereby the system shows a letter has been generated but it has not been despatched."
- Ms Doherty also identified in Freeman, that Capita's performance was subject to Operating Service Levels with The Pensions Regulator, and should its system fail, it would incur a financial penalty. This had never happened.
- Judge Neville found Ms Doherty's evidence to be "credible and straightforward."
- I now turn to the general evidence of The Pensions Regulator's process, given by Ms Doherty in the instant appeal.
- In her statement of December 2024, Ms Doherty provided evidence that The Pensions Regulator uses a system called D365 to facilitate its compliance and enforcement functions. D365 tracks and records all written and telephone communications that employers subject to automatic enrolment duties have with The Pensions Regulator's agents and officers, and it provides an audit trail of all compliance and enforcement activity carried out. She described the regulatory journey of employers subject to the automatic enrolment duties in terms akin to the evidence given in Freeman.
- The journey is managed and controlled by numerous business rules set up within the D365 system. Business rules are essentially a type of coded script which are written into the D365, and which allow the automation of particular actions and activities when a trigger point is met. During certain points of an employer's compliance and enforcement journey, triggers are met which will generate an appropriate action.
- The computer system runs programmes overnight that generate tasks, which, in turn, allow it to identify whether trigger points have been reached. Actions are then taken. For instance, where a communication is required (such as a Compliance Notice or Unpaid Contributions Notice), the system will trigger the appropriate letter or notice to be sent, depending on the stage the employer is at in its enforcement journey. Employers are identified within D365 as an "organisation". Ms Doherty provided the Tribunal with an example of the scripted business rules.
- The current process for creating and despatching written communication is via D365, in conjunction with Precisely and Capita Intelligent Communications. Precisely provides the creation and storage for all automatically generated communications to organisations. Capita Intelligent Communications provides the printing and despatch of automatically generated white mail correspondence, which includes compliance notices and penalties.
- Once the system has identified what letter is required, it will then send a file across to Precisely to "mail merge" the employer's individual variables into the agreed template held within the system. These include, amongst other things, the organisation (employer) name, address, letter code, notice number and any reference to deadline dates.
- The merged file is then sent to Capita Intelligent Communications for printing and despatch. Where the same letter template or notice is to be sent to numerous employers, they are batched into individual files of each type of letter or notice, so they can then be created and despatched. For instance, there will be a separate batch for each letter or notice type such as the IPB, FPN and EPN. Once printed, Capita Intelligent Communications will email Compliance and Enforcement, confirming the batch and detailing the file name and number of packs (letters and notices) within the file. This is used for checking against D365 to ensure the correct number of letters and notices have been produced as were expected. In parallel, Capita Intelligent Communications envelope the letters and notices in the appropriate stationery and they are despatched on the same day by 1st class post via the Royal Mail.
- D365 stores/records all activities (letters, telephone calls etc) carried out in respect of each employer against the organisation (employer) name. PDF versions of any statutory notices issued are stored within E-vault. E-vault is an electronic system used for storing individual images of documents issued. A record of all statutory notices issued is also shown against the enforcement case and includes the creation and issue date in a single activity line.
- The required letters or notices will be despatched within 24 hours of the trigger which prompted the letter or notice to be created. For example, if a notice creation is triggered during the overnight run, at say 1:00am, the notice will have been created, printed, and despatched by no later than 4:00pm on the same day. There is a cut off time of 6:00am where, if a notice is created after this time, it will have an issue date of the next working day. This is all automated within the business rules and processes of the system, and there is no manual human input.
- The Pensions Regulator is able to identify the date that a letter or notice was dispatched to an employer (such as the appellant) by noting that the "actual end" field of D365 has been filled.
- The Pensions Regulator confirms the success of the process via reporting from D365 and acknowledgements from Capita Intelligent Communications. Each night the overnight tasks are run to identify and create any notices, as required. There are a number of automatic interactions in place throughout the process. The output from the files, and the number and type of letters, or notices created, is then confirmed by email to The Pensions Regulator, giving details of the file name and the content.
- A reconciliation process is carried out each day to ensure that the number of letters or notices in the various batches, match the number of letters, or notices showing as being created in D365. Each different letter template has its own batch. A Quality Assurance check is carried out which involves opening a proportion of the actual PDFs within E-vault to ensure the correct template has been used and that the correct variable data has been pulled through. There is a requirement that The Pensions Regulator checks 50 of each letter type across the month. This is done over a period of time rather than just checking within one single batch on any one day. These checks are recorded and reported monthly.
- If the overnight processing procedure set out above does not complete automatically, and a file is not generated i.e. a letter, or a notice etc is not created for despatch, this will be picked up when the reconciliation process is carried out. Where this is the case, the operation will raise an internal IT call to investigate the root cause of the issue, and the jobs are re-started. Once a document is created, it is always sent out to an employer as the process does not rely on any manual or human intervention. An issue has never been identified whereby the system shows a letter as having been generated, but it has subsequently found that the letter has not been in fact been despatched.
- In oral evidence, Ms Doherty accepted that The Pensions Regulator does not send notices by tracked post. She was also closely examined on the effect of the Covid-19 lockdown on The Pensions Regulator's operations, confirming that there was a period during lockdown when only limited journey events occurred, such as the issue of compliance notices. She stated, however, that The Pensions Regulator did not issue penalties at this time, and that the penalty journeys restarted after the end of lockdown. This did not create a backlog. There was no 'catching up' on penalties by The Pensions Regulator because no penalties were issued during the lockdown, and all employers journeys were changed.
Evidence from The Pensions Regulator about J.M Kamau Limited
- In relation to the instant appeals, Ms Doherty provided evidence that J.M Kamau Limited had submitted a Re-Declaration of Compliance on 10 February 2022. The re-declaration deadline date was 30 June 2021. An interrogation of The Pensions Regulator's system indicated that the company was issued with an IPB on 13 July 2021, a FPN on 25 August 2021 and, as compliance was still not achieved, an EPN was issued on 27 September 2021. The EPN started to accrue on 25th October 2021 at a daily rate of £500, a figure based on the number of employees in PAYE.
- An email was received on 1 December 2021 from Mr John Mburu, requesting a review of the notices on the basis that the penalty was issued to an address (at Bluebells Way) that he had no access to. The email stated that the company had not received any correspondence from The Pensions Regulator in relation to automatic enrolment and that he was not aware of the requirement to re-declare. A response to Mr Mburu's correspondence was sent by The Pensions Regulator on 8 December 2021, stating the request for review had been rejected as it had been received out time and The Pensions Regulator did not consider it appropriate to conduct a review on its own initiative.
- Ms Doherty averred in evidence that all notices to the appellant were issued to the address registered for the company at Companies House. There is a change of company address with Companies House on 22 November 2021, from the Bluebells Way address to an address on a nearby industrial estate.
- A phone call from Mr Mburu was received by The Pensions Regulator on 14 January 2022, enquiring as to why the appellant had received a reminder for the outstanding penalties in circumstances where it had appealed stating that the notices had been sent to the incorrect address. Mr Mburu was advised of the outstanding re-declaration and what the re-enrolment duties were and was further advised to submit a query via email. A further email was received on 20 January 2022, providing the same grounds for review as those received on 1 December 2021. The review was again rejected as having been received out time, and once again The Pensions Regulator did not consider it appropriate to conduct a review of its own initiative.
- Ms Doherty confirmed, in her oral evidence, that the outcome to the email of 20 January 2022, was not recorded on The Pensions Regulator's system. She stated that this was due to human error, identifying that this exercise was not subjected to the automated process. There is an automated process, as previously described, and a separate human process when later interactions are received by The Pensions Regulator. Ms Doherty further stated that the human error in this case could not have impact on whether the statutory notices were generated, because the 'human error event' took place long after the original notices were sent.
- Ms Doherty then confirmed that an incoming call from Mr Mburu was received by The Pensions Regulator on 9 June 2023. Mr Mburu stated that he had not received a response to his email of 20 January 2022. He was advised that the review had been rejected, and the penalties were due for immediate payment. A further email was received from Mr Mburu, attaching previous reviews and further information. It was decided that there were no grounds that had not previously been considered and, because the notices were over 18 months old, The Pensions Regulator further concluded that it had no jurisdiction to consider a review by law. A response was issued on 14 June 2023, advising accordingly.
- Ms Doherty continued her evidence by identifying that a total of 670 FPNs were issued on 25th August 2021 in the same batch as the FPN that was sent to the appellant, and a total of 440 EPNs were issued on 27 September 2021 in the same batch as the EPN that was sent to the appellant. She stated that there was nothing to indicate that either of these batches of statutory notices had any problems when they were despatched, and The Pensions Regulator has not received any feedback to that effect.
- Ms Doherty's statement exhibited ten screenshots from The Pensions Regulator's computer system.
(i) Screenshot 1 is of the "Correspondence Request" tab of the system.
(ii) Screenshot 2 – of the "Notes & Activities" tab, is said to show the list of enforcement activities that were generated leading to despatch of the IPB, FPN and EPN. The enforcement activities are highlighted on the screenshot as are the "Actual End" dates. The screenshot shows the following four activities for J.N. Kamau Limited with corresponding Actual End dates: IPB – 13 July 2021, FPN – 25 August 2021, Enforcement Reminder letter – 24 September 2021 and EPN - 27 September 2021. Ms Doherty provided evidence that this shows the complete journey regarding notices issued to the appellant.
(iii) Screenshot 3 is the detail behind the IPB 'activity', identifying the Actual Start and Actual End dates of the creation of the IPB letter (10 July 2021 and 13 July 2021 respectively), the appellant's E-vault ID and the name and address the IPD letter was despatched to, which was the Bluebells Way address.
(iv) Screenshot 4 shows the top half of a digital copy of the IPB letter, dated 13 July 2021. This also contains the appellant's address, as above.
(v) Screenshot 5 - of the 'created on' tab, identifies the creation date, issue date, notice reference, and deadline for the IPB, in the appellant's name.
(vi) Screenshot 6 - of the 'Penalties' tab, identifies the creation date, issue date, and notice reference for the EPN and FPN in the appellant's name.
(vii) Screenshot 7 shows the detail behind the FPN 'activity', identifying the Actual Start and Actual End dates of the creation of the FPN letter (25 August 2021), the appellant's E-vault ID and the name and address that the FPN letter was despatched to, which was the Bluebells Way address.
(viii) Screenshot 8 shows the top half of the FPN letter, with the appellant's name, address, and the issue date, visible on it.
(ix) Screenshot 9 shows detail behind the EPN 'activity', identifying the Actual Start and Actual End dates of the creation of the EPN letter (25 September 2021 and 27 September 2021 respectively), the appellant's E-vault ID and the name and address that the EPN letter was despatched to, which was the Bluebells Way address.
(x) Screenshot 10 shows the top half of the EPN letter, with the appellant's name, address, and the issue date, visible on it.
- Ms Doherty continued her evidence by stating that her interrogation of the IT system led her to be able to provide the following information relating to the IPB, FPN and EPN issued to the appellant.
a. The IPB was issued under vault ID 11c6976aa68d4f9cb583d1165dd1d341. The creation date was 9 July 2021 at 07:07am with an issue date of 13 July 2021. There was a later issue date due to the creation of the notice being after 06:00am on Friday 9 July 2021 and there being a Northern Ireland Bank Holiday on 12 July 2021. The issue date was the next working day, Tuesday 13 July 2021. The illustration through screenshots 3 & 5 highlights the start and end date of the process with Capita Intelligent Communications, confirmation that the document was an IPB, that it was generated by the system, and that it was issued on 13 July 2021. Screenshot 4 also shows an image of the notice, which was sent, which can be produced once the "load document" link is clicked.
b. The FPN was issued under vault ID 049277715e8840298e3740dcfe4cf63d via the process outlined in evidence. The creation date was 25 August 2021 at 05:25am, with an issue date of 25 August 2021. Screenshots 7 and 8 provide the same illustration in regards the FPN, as described for the IPB. Screen shots 9 and 10 provide the same illustration for the EPN, as described for the IPB. The creation date was 24 September 2021 at 06.28am with an issue date of 27 September 2021 due to the weekend.
c. Given the system identifies that the IPB was issued to the appellant on 13 July 2021, the FPN was issued to the Appellant on 25 August 2021, and the EPN was issued to the appellant on 27 September 2021, Ms Doherty was extremely confident that those notices were despatched, as detailed in the screenshots. They show that the automated process was successfully triggered and completed. There is a record of the images held within e-vault, which show that the notices were issued.
Evidence on behalf of J.M Kamau Limited
- John Mburu, Caroline Wanjiru and Ravi Goyal gave written and oral evidence on behalf of the appellant. Ewelina De Leon provided a statement dated 19 November 2024, but was unable to provide oral evidence due to competing commitments. Mr Mburu was content to proceed in the absence of oral evidence from Ewelina De Leon
- Ravi Goyal gave evidence via a telephone link, having been unable to successfully connect via video. Mr Goyal and the parties were content for the evidence to be given in this manner and, in my conclusion, to do so caused no prejudice to any of the parties.
- Mr Goyal relied upon the contents a short letter drawn by him on 18 October 2024. He is a former neighbour of Mr Mburu, in Bluebells Way. In the aforementioned letter, Mr Goyal details that "at times" he has received mail addressed not to his address in Bluebells Way, but the same numbered address in Bluebell Park. The Bluebell Park address is approximately one mile away from the Bluebells Way address. The person living at the Bluebell Park address had also received Mr Goyal's letters, which had been correctly addressed to Bluebell Way. This included an important HMRC letter that had been mis-delivered to Bluebell Park. The mis-deliveries were caused by human error at the Royal Mail. In oral evidence, Mr Goyal confirmed that he moved to Bluebell Way in December 2018, and he had received mis-delivered mail around 'half a dozen' times in the first two to three years that he lived there. The level of mis-deliveries had gradually reduced, and he has not received any letters addressed to Bluebell Park in the past "couple of years." He is not aware of whether the resident of the Bluebell Park address has received any mail addressed to Bluebells Way during this time.
- Caroline Wanjiru relied upon a signed letter dated 11 June 2023. A copy of this letter was appended to the appellant's 'Notice of Appeal' of 4 July 2023 and was again submitted by Mr Mburu to the Tribunal in response to directions issued by Judge Griffin on 25 July 2024.
- The letter is addressed to The Pensions Regulator and begins with the following heading: "Ref: John Mburu do not receive his letters posted because I Caroline Wanjiru." Thereafter, Ms Wanjiru identifies John Mburu as her partner and states that they "have been living in the same house," in Bluebells Way. There had been a falling out, and Mr Mburu had left the house and was not permitted to return to collect his belongings. The letter does not identify the date, or even the year, that Mr Mburu stopped residing at the Bluebells Way address.
- It is prudent to set out the core of the letter in full:
"I would like to apologise for disposing of several posted letter sent to J.M. KAMAU Limited to address …Bluebell Way…, it is sad to say but I removed the letters from the envelope and disposed of them in the bin without consulting John Mburu. …
…All I would like to say is that it is all my fault for disposing his letter, and now we are in good terms, he has been looking for those letters, but I had to tell him the true about disposing his letter. His not happy with me and also mentioned about fines escalation with the pension regulator. Therefore, it is only right that I write this letter to make it clear that John Mburu didn't receive those letters, and it is because of myself. This has implicated him, and I would like this matter to be consider as it has made him stressed out."
- Ms Wanjiru began her oral evidence by stating that those parts of the letter of 11 June 2023 that make reference to The Pensions Regulator, were not true. She continued by explaining that she had been confused at the time she wrote the letter. Towards the end of 2023, Mr Mburu had shown her a copy of letters from The Pensions Regulator, and she observed that these were not the letters she had seen and thrown away. The letters she had disposed of were letters relating to parking fines and subsequent debt collector letters relating to those fines. When asked why she had written a letter in 2023 referring to 'fines escalation with the pension regulator' if she knew the letters she had disposed of related to parking fines, Mr Wanjiru stated that she had thought that "the debt collectors were a part of The Pensions Regulator".
- Mr Mburu provided a signed statement, dated 24 October 2024. Therein he averred that at the time of the Covid-19 lockdown he faced financial crisis and a relationship breakdown, which led to him leaving the Bluebells Way address. He slept in his car and the garage. He speculated that the postal services may have faced delays at this time and noted that Bluebells Way was a relatively new address and that it took some time for the postal services to recognise new addresses. Mr Mburu also referred to his mail having been incorrectly delivered to nearby addresses on 'numerous occasions'. He has visited the equivalent numbered address in Bluebell Park "several times but the residents were not in the property."
- Mr Mburu continued by stating that the issue first came to his attention when he received an email from The Pensions Regulator on 1 December 2021, and he immediately sought a review. He had not previously received any letters or emails informing him of the penalties.
- In oral evidence, Mr Mburu maintained that The Pensions Regulator had not issued the EPN or FPN letters, and he took particular issue with the absence of the use of a letter tracking system by The Pensions Regulator.
- Mr Mburu was taken to a copy of Ms Wanjiru's letter of 11 June 2023. He stated that Ms Wanjiru was referring therein to the disposal of letters relating to parking ticket fines on a vehicle registered to J.M. Kamau limited, and not to the FPN or EPN notices from The Pensions Regulator. She was not specific about throwing away letters from The Pensions Regulator.
- The Tribunal also has before it a letter from Ewelina De Leon, dated 19 November 2024. She also lives in Bluebells Way. She indicates that the properties in Bluebell Way are new build, and mis-deliveries of post are common. She recalls receiving a delivery that should have gone to a different address containing the word Bluebell in the road name.
General Discussion
- Ms Doherty's witness statement is confirmed by a statement of truth, and her evidence was subject to careful questioning by Mr Mburu. Her evidence is clear, detailed, internally consistent, and consistent with the evidence she is recorded as having given in Freeman.
- Like Judge Neville in Freeman, having read and heard the evidence of Ms Doherty, I find that the systems employed by The Pensions Regulator and its contractors for the sending of IPBs, FPNs and EPNs by post are reliable and robust. I accept that the automated process for sending out the IPB, EPN and FPNs is the of subject of daily reconciliation checks, and that there is also a further human 'Quality Assurance check' carried out by opening a proportion of the PDFs in the e-vault to confirm accuracy. It is also significant, in my view, that Ms Doherty was unaware of any adverse issues with the system that could cause her to doubt the reliability of the information it produces.
- Whilst Ms Doherty recognised that there was an error in the records relating to correspondence with Mr Mburu in January 2022, I accept her evidence that this related to a stage of The Pensions Regulators process that is not automated but is reliant on human data inputting. The process of sending out the IPBs, FPNs and EPNs is automated, and the only human intervention is during the reconciliation and quality assurance checking processes.
- In future cases before this Tribunal, The Pensions Regulator is entitled to rely upon the evidence of Ms Doherty, as detailed in [32] to [55] above, as to the system it operates for the issuing of IPBs, FPNs and EPNs. There will be no further requirement to produce a witness statement detailing these processes, unless a direction is made to that effect in a given matter.
- This, of course, is predicated both on Ms Doherty's evidence continuing to accurately reflect the processes in place and it also continuing to be the case that there have not been any adverse issues with the system that could cause doubt as to the reliability of the information it produces. I agree entirely with Judge Neville, when he states that "Even isolated and minor examples of the system going wrong may be disclosable in subsequent proceedings if the respondent is to comply with its duty of candour and injustice is to be avoided."
- Further measures are also required to ensure an appellant does not suffer an injustice in an appeal against an FPN or EPN. Appellants are entitled to know the case against them, which includes being informed in each case whether The Pensions Regulator seeks to rely upon Ms Doherty's evidence (as referred to in [80] above). If there is to be such reliance, then I would expect this to be clearly identified in The Pensions Regulator's Rule 23 Response, along with a copy of this judgment, or an internet link to the judgment on the National Archives case law site. This will provide appellants with a fair opportunity to put a contrary case in their Rule 24 Reply, if they so wish to.
- General evidence as to the processes operated by The Pensions Regulator cannot, of course, demonstrate of itself that a particular notice was issued and, in my view, given the evidence at The Pensions Regulator's disposal, a bare assertion to this effect is unlikely to meet the burden on it.
- To discharge the burden of demonstrating that an IPB, FPN or EPN was issued in any given appeal, The Pensions Regulator can be expected to provide the appellant and Tribunal with screenshots of the relevant tabs from its IT system relating to the particular appellant before the Tribunal, as it has done in this appeal. Those screenshots, assuming they confirm the issuing of the notice in question to the proper address, taken together with the general evidence as to the IT processes operated by The Pensions Regulator, is likely to be sufficient for The Pensions Regulator to satisfy the burden placed upon it, but that is not inevitable, as each case will need to be determined on its own facts.
- It is to be recalled that at [33] of Freeman the UT reminds us that when considering the question of whether a notice was issued by The Pensions Regulator, it is necessary to consider whether it was, as a matter of fact, received. Evidence of non-receipt needs to be addressed, weighed, and evaluated by the Tribunal, against the evidence put forward by The Pensions Regulator.
- It hardly needs saying, but there are a multitude of reasons why a notice might not have been received by its intended recipient, such as mis-delivery by Royal Mail, or misdirection of mail internally within an office or serviced building. The reasons for non-receipt include, however, a failure to send the notice, or the sending of the notice to the wrong address. Thus, the obvious need to ensure that there is an evaluation of the parties competing evidential cases.
Discussion regarding J.M Kamau Limited
- Applying my conclusions above to the instant appeal, I place substantial weight on the evidence given as to the robustness of The Pensions Regulator's processes for the issuing of IPBs, FPNs and EPNs, and also the reliability of the organisation specific data recorded on The Pensions Regulator's system.
- The evidence detailed in the screenshots from The Pensions Regulator's IT system, as well as the evidence given by Ms Doherty, clearly identifies the system as recording that the IPB was sent by post to the appellant on 13 July 2021, the FPN was sent on 25 August 2021, and the EPN was sent on 27 September 2021.
- The screenshots of the system further identify the address to which all of these notices were sent as being the Bluebells Way address. The address on the PDF copies matches the address for the company recorded at the relevant time at Companies House. The system has stored a PDF copy of all three notices, and the essential parts of those notices have been produced as screenshots to the Tribunal.
- Mr Doherty gave credible evidence that an issue has never been identified whereby the system shows a letter as having been generated, but it has subsequently been found that the letter has not been despatched. Furthermore, I accept that no issues are recorded as having been identified for the batches of documents containing the FPN and EPN sent to the appellant. The system records are as expected for a successful journey via the automated process.
- At this juncture, I need also address to Mr Mburu's evidence that he did not receive any of the notices issued by The Pensions Regulator.
- Ewelina De Leon and Ravi Goyal provided cogent and consistent evidence that there have been instances in which Royal Mail have misdelivered mail to them at their respective Bluebells Way addresses, which was addressed to the occupants of an address in Bluebell Park, and vice versa. Mr Mburu also identified that this has also been the case for his mail. I have no reason to doubt this evidence and accept it as true, but a failure by Royal Mail to deliver mail to the correct address is not a matter which impinges on whether the notice was properly issued in the first place by The Pensions Regulator. I will return to consider this evidence further, later in this decision.
- I also have no reason to doubt Mr Mburu's evidence that the purported issuing of the notices by The Pensions Regulator first came to his personal attention upon receipt of an email from the regulator on 1 December 2021. This evidence is supported by the swiftness of Mr Mburu's response to The Pensions Regulator's email. There is also no evidence of a failure by Mr Mburu to adhere to other regulatory requirements.
- I further accept that Mr Mburu was previously in a relationship with Caroline Wanjiru, that they both lived together at the Bluebells Way address – the registered address of J.M. Kamau Limited, and, at some point, the relationship broke down and Mr Mburu moved out. At this time, Mr Mburu was not permitted to return to the premises to collect his belongings.
- Neither Mr Mburu nor Caroline Wanjiru provide a date, or even the year, that Mr Mburu ceased living at the Bluebells Way address. The second paragraph of Mr Mburu's letter of 24 October 2024 refers to the business suffering as a consequence of the government's Covid-19 measures, and that he faced a financial and a relationship breakdown during this time. It is not said if, or when, Mr Mburu returned to live at the Bluebells Way address, although I note that there is evidence of a reconciliation between Ms Wanjiru and Mr Mburu.
- In her letter of 11 June 2023, Caroline Wanjiru refers to 'disposing of several posted letters sent to J.M Kamau Limited to the 'Bluebells Way address'. Although not specified, the inference is that this was during the period of estrangement between Mr Mburu and Ms Wanjiru, after Mr Mburu moved out of the premises. The heading and the last few sentences of the letter are informative, and bear repeating here:
"John Mburu did not receive his letters posted because I Caroline Wanjiru.
…
His not happy with me and also mentioned about fines escalation with the pension regulator. Therefore, it is only right that I write this letter to make it clear that John Mburu didn't receive those letters, and it is because of myself. This has implicated him, and I would like this matter to be consider as it has made him stressed out."
- It was not until giving evidence at the hearing in January 2025 that Caroline Wanjiru first revealed that the letters she had been referencing as having been disposed of, were letters relating to parking fines and the enforcement thereof and were not letters or notices from The Pensions Regulator. She now states that she was confused at the time of writing the letter of the 11 June 2023, and her thoughts crystallised at the point in time she was shown a letter from The Pensions Regulator, towards the end of 2023.
- There is no documentary evidence produced by Mr Mburu or Caroline Wanjiru to support the fact that J.M Kamau Limited received parking fines and subsequent enforcement letters at or around the relevant time in 2021. One anticipates, for example, that there would have been the generation of evidence relating to the subsequent payment of the fines, or evidence generated by a Court if the fines were not paid.
- Although Mr Mburu contends that nowhere in the letter does Ms Wanjiru specifically refer to throwing away notices from The Pensions Regulator, reading the letter as a whole it is clear that it was the intention of the letter to give this impression to its reader. That this was the letter's intention is also supported by the fact the letter has twice been sent to the Tribunal in support of the appellant's appeal, including at a time after Ms Wanjiru now says that she first became aware that it was not notices form The Pensions Regulator that she had thrown away i.e. in response to directions issued by the Tribunal on 25 July 2024.
- Looking at the evidence in the round, when assessing whether the notices were issued by The Pensions Regulator, I attach little weight to the evidence produced on behalf of the appellant that the notices were not received. Even if Ms Wanjiru is telling the truth about realising in late 2023 that she had thrown away letters relating to parking fines and not letters from The Pensions Regulator, memories can fail, envelopes can be mislaid, and items of post can be overlooked. Ms Wanjiru did not give evidence to the contrary. I remind myself also that during the relevant period, Mr Mburu and Ms Wanjiru were estranged, and the relationship was such that Mr Mburu was not even permitted to enter the Bluebells Way property.
- In my conclusion, when the evidence put forward on behalf of the appellant as to the non-receipt of the letters from The Pensions Regulator is considered as a whole, and evaluated against the evidence provided by Ms Doherty, both as to the robust processes in place for the issuing of notices by The Pensions Regulator and as to the records contained on The Pensions Regulator's system relating to the issue of the IBP, FPN and EPN to the appellant's proper address, The Pensions Regulator has satisfied the burden of proving to the balance of probabilities that the notices were issued by post on the dates identified, and that the notices were each sent to the appellant's proper address, in Bluebells Way.
B. As a matter of law, was the FPN and/or the EPN received by the appellant and, if so, when?
- Having concluded that The Pensions Regulator sent the FPN and EPN by post to the appellant at the Bluebells Way address, and that this was the 'proper address' for the notices to be sent, I now turn to consider whether the FPN and/or the EPN were received by the appellant, as a matter of law, and, if so, when.
Legal Framework
- It is to be recalled that regulation 15 of the 2010 Regulations prescribes both the timeframe within which a request for a review must be made under section 43(1)(a) of the 2008 Act (28 days from the day a notice is issued), and the outer timeframe within which a review can be undertaken by The Pensions Regulator of its own initiative under section 43(1)(b) of the 2008 Act (18 months from the day a notice is issued). Regulation 15(4) then provides:
(4) For the purposes of this regulation, it is presumed that—
(a) where a notice is given a date by the Regulator, it was posted or otherwise sent on that day;
(b) if a notice is posted or otherwise sent to a person's last known or notified address, it was issued on the day on which that notice was posted or otherwise sent; and
(c) a notice was received by the person to whom it was addressed."
- Although it is not obvious from either the wording of section 43 of the 2008 Act or regulation 15 of the 2010 Regulations, that the issue of receipt of a notice is relevant to the Tribunal's enquiry as to whether it has jurisdiction, or, more particularly, as to the enquiry as to whether an appellant has made an application for a review of a notice within the prescribed time frame, the Upper Tribunal in Freeman carefully explained why this must be so at [35] to [45] of its judgment.
- In summary, the Upper Tribunal confirmed, at [35], that the presumption of receipt in regulation 15(4)(c) of the 2010 Regulations is rebuttable.
- At [42] of Freeman the Upper Tribunal observed the very odd disjunction if an intended recipient could prove that notices had not been received despite having been sent to the proper address i.e. that the appellant had rebutted the presumption referred in regulation 15(4)(c), but that this proven fact could not then be relied upon when consideration was being given to the application of regulation 15(1) and 15(2) of the 2010 Regulations i.e. whether a review had been sought within a prescribed period etc.
- The appellant bears the burden of rebutting the presumption of receipt. If the presumption is rebutted, then the legal burden returns to The Pensions Regulator. In London Borough of Southwark v Akhtar [2017] UKUT 150 (LC), a case concerning notices under a lease, the operation of this boomerang approach was described in the following terms:
"82. A legal presumption like the one in s.7 has the effect of reversing the burden of proof. Once the landlord has proved that the notice was properly addressed, pre-paid and posted it has nothing further to do – unless the contrary is proved. If the contrary is proved, then the landlord must, as it were, go the long way round and actually prove service without the help of the presumption and must therefore convince the tribunal on the balance of probabilities that the notice was actually received. But it is only required to do that if the contrary is proved, and not if the contrary is merely asserted."
Discussion
- Turning to the facts of the instant appeal, as I have already alluded to, Mr Mburu maintained dual limbs to his position that the notices were not received. First, he submitted that they were not sent (or not sent to his proper address) by The Pensions Regulator. In the alternative, Mr Mburu contends that the Royal Mail mis-delivered the notices, possibly to an equivalent numbered address in Bluebell Park.
- I have already rejected the assertion that the notices were not posted by The Pensions Regulator to the proper address, and I say no more about that submission here.
- As to the alternative submission, I have set out the relevant evidence earlier in this decision and I do not repeat it verbatim here. I observe, however, that Ravi Goyal gave examples of mail being misdelivered on half a dozen occasions in the first two or three years after he started living in Bluebells Way in 2018, with the level of mis-delivery gradually reducing. He speculated that the mis-deliveries were as a consequence of there being two similar addresses. Whilst Ewelina De Leon stated that mis-delivery was common, she gave no indication as to the number of mis-deliveries she was aware of, over what period of time this occurred. Mr Mburu used the phrase 'numerous occasions' to describe the number of occasions he was aware of that mail being incorrectly delivered.
- In considering this evidence, I further observe that the appellant has not produced any documentary evidence of attempts to contact Royal Mail regarding mis-delivery of mail for the Bluebells Way address, or responses thereto if such contact was made. In taking account of the evidence, I appreciate that not all mis-deliveries of post sent to the Bluebells Way address would necessarily come to the attention of the witnesses.
- Having paid careful regard to the evidence of Mr Mburu, Ravi Goyal, Carolina Wanjiru and Ewelina De Leon, in my conclusion it is not sufficient to rebut the presumption of receipt in regulation 15(4)(c) of the 2010 Regulations. It is general in nature and describes the scale of mis-delivery of mail in such terms so as to drive me to the conclusion that it has not been made out that the three notices sent by The Pensions Regulator had each been misdelivered. On the evidence, I do not accept that it has been established by the appellant that any of these notices were misdelivered by Royal Mail to the Bluebell Park address, or to any other address. That deals with the submissions made by Mr Mburu as to why the Tribunal should conclude that the appellant did not receive the notices.
- Moving on, although Mr Mburu does not pursue a contention that the notices were delivered to the Bluebells Way address but were not received by 'the appellant' because Mr Mburu (the Director) was not living at the address at the time and they were not passed on to him, it is nevertheless prudent for me to address this possibility.
- This raises the more general question as to whether the presumption of service be rebutted if the notices were sent, and subsequently delivered, to the proper address.
- This is an issue that could arise in a number of scenarios. For example, where an intended recipient is based in a serviced building in which mail for the building is received at a central address and then distributed internally, and there is a failure of the internal post system such that the notice does not arrive with the intended recipient, or, if the recipient is based in a house of multiple occupation with only one letterbox to the property and the notice is removed by the wrong occupant and not subsequently passed on to its intended recipient. There are likely to be many other examples.
- In this regard, in its skeleton argument The Pensions Regulator draws on the decision of Judge Oliver, sitting in this Tribunal, in IJ Plant Limited v The Pensions Regulator [2024] UKFTT 935 GRC), in which Judge Oliver said, at [23], that although notices sent to a registered office may have been overlooked "this is different from not being received at the correct address in the first place".
- Of course, Judge Oliver's decision does not set a precedent. I do, however, entirely agree with the observation she makes.
- There is other authority to support the approach contended for by The Pensions Regulator, and applied by Judge Oliver, on this issue. In Swainston v Hetton Victory Club [1983] 1 All ER 1179 the presentation of a complaint to an Industrial Tribunal had to be undertaken within a specified time period. On the facts, the Industrial Tribunal was found to have a letter box through which the relevant complaint could be posted. Waller LJ (with whom the other members of the Court agreed) said this, at page 1184C:
"In my opinion it is difficult to say that presentation requires any action on the part of the body to which presentation is made. Delivery of a document to the proper quarter does not require action on the part of anybody at that proper quarter."
- In Van Aken v Camden London Borough Council [2003] 1 WLR 684, the Court of Appeal concluded that a party had filed a document by 'delivering [it] to the court office', when it was posted through the letter box of the relevant office. Ward LJ said:
"…delivery seems to me to involve a unilateral, and not a transactional, act. The ordinary meaning of the words, therefore, posting through the letterbox, as would be done here, would be sufficient."
- Ultimately the answer to the question turns on the interpretation of the material statutory provisions. Section 303 of the 2004 Act deals with the 'proper address' for service of a notice from The Pensions Regulator and, on my reading of section 303, there is nothing therein which leads to the conclusion that service is only effected with the collaboration, or some reciprocal action, by the intended recipient if it is received at 'the proper address'. In addition, nothing in regulation 15(4) of the 2010 Regulations appears to support a contrary view, because the situation being hypothesised assumes receipt of the notification at the proper address and, at least in the instant scenario, the 'person' to whom it was addressed is the body corporate.
- As a matter of practical reality, if this were not the case it is difficult to see how the system could sensibly function. An intended recipient could deliberately choose not to pick up mail on the assumption that some of the mail would be the bearer of bad news. In doing so, they could legitimately rebut the presumption of service.
- On the facts of this case, the notices were sent by The Pensions Regulator to the proper address and, in my conclusion, even though they did not reach the hands of Mr Mburu, the appellant has not rebutted the presumption that the notices were not, as a matter of law, received. Applying section 7 of the Interpretation Act 1978, I find that the notices were received by the appellant "at the time the letter would be delivered in the ordinary course of post".
- Drawing all of this together, The Pensions Regulator has not completed a review of either the FPN or the EPN in issue in this case, whether on written application of the appellant (section 43(1)(a) of the 2008 Act) or of its own motion (section 43(21)(b) of the 2008 Act). The First-tier Tribunal does not, therefore, have jurisdiction to consider the references pursuant to section 44(2)(a) of the 2008 Act.
- Furthermore, the first occasion that Mr Mburu, on behalf of the appellant, sought a review of the notices was on the 1 December 2021. On the findings above, this is considerably outside of the prescribed 28-day period within which an application to review the FPN and/or EPN may be made under section 43(1)(a) of the 2008 Act. Accordingly, it cannot be said that the appellant made an application for a review of either notice pursuant to section 43(1)(a) of the 2008 Act, and, therefore, one of the material precedent facts required for the operation of section 44(2)(b) of the 2008 Act has not been made out. The of all of this is that the First-tier Tribunal does not have jurisdiction to consider the references pursuant to section 44(2)(b).
- The corollary of all that is said above, is that the First-tier Tribunal does not have jurisdiction to consider the reference made by the appellant in relation to the EPN, nor does it have jurisdiction to consider the reference made by the appellant in relation to the FPN.
- Pursuant to rule 8(2) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009, the First-tier Tribunal "must strike out the whole or part of the proceedings if the Tribunal does not (a) have jurisdiction in relation to the proceedings or that part of them…". These proceedings are, consequently, struck out.
Judge O'Connor
Chamber President
10 April 2025
