WSW Projects Ltd v The Pensions Regulator

Factual and Procedural Background

In June 2017, the company's accountant submitted a declaration of compliance for the company using an email address associated with the company and a business address in Barnet. Three years later, the same declaration process was repeated with identical details. In September 2021, the company moved its registered office and place of business from Barnet to a new address in Stevenage.

In October 2023, the Regulator sent a Compliance Notice to the new registered address, followed by a Penalty Notice in December 2023 to the same address. The company’s accountant wrote to the Regulator explaining that the penalty notice was the first communication received, attributing non-receipt of earlier correspondence to the cessation of mail redirection from the old address. The Regulator upheld the penalty notice, asserting it was correctly served.

The company paid the penalty but appealed, arguing that prior communications had been sent to the old address and were not received. The Regulator maintained that the notices were properly served to the registered office. The company provided evidence that the Compliance Notice was only received months after posting, and that their pension provider had been unable to contact them due to outdated address details.

The Tribunal considered the evidence, including email exchanges between the company and its pension provider, and the timing of receipt of notices. The Regulator was directed to explain its failure to include relevant email correspondence in the case bundle.

Legal Issues Presented

1. Whether the statutory presumption that a notice posted to a company’s registered address is deemed received should be accepted in the circumstances of this case.
2. The propriety of the Regulator’s conduct in preparing the case bundle, specifically the exclusion of relevant evidence submitted by the company.
3. The appropriateness of the Regulator’s method of serving notices by post rather than by email, considering modern communication practices.

Arguments of the Parties

Appellant's Arguments

• The company did not receive the Compliance Notice until several months after it was posted, due to mail being sent to the old address and mail redirection having ceased.
• The first communication received regarding re-enrolment was the Penalty Notice dated 6 December 2023.
• The company promptly submitted the declaration upon receipt of the Penalty Notice and would have done so earlier if notices had been properly received.
• The company’s pension provider had been unable to contact it due to outdated address details, which the company updated only after being alerted in September 2023.
• The company requested leniency, emphasizing its compliance efforts and the circumstances of non-receipt.

Respondent's Arguments

• The notices were correctly issued to the registered office address as recorded at Companies House.
• The claim that the Compliance Notice was not received is unsupported beyond a letter from the pension provider regarding returned mail.
• The Fixed Penalty Notice was received and paid, indicating proper service of notices.
• The Regulator dismissed the company’s reliance on the old Barnet address as irrelevant.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Tribunal examined the rebuttable presumption that a statutory notice sent to a company’s registered office is received. It noted the Regulator’s confidence in this presumption but also highlighted the Regulator’s omission of relevant evidence submitted by the company, raising concerns about the Regulator’s conduct in preparing the case bundle.

The Tribunal reviewed the evidence, including email correspondence between the company and its pension provider, and found that the Compliance Notice was likely received only in February 2024, months after posting. The Tribunal observed that relying solely on postal service for compliance notices, given the availability and use of email for over 30 years, may not be an effective regulatory strategy and appears more focused on enabling financial penalties than on achieving compliance.

Balancing the evidence on the balance of probabilities, the Tribunal concluded that the company did not receive the Compliance Notice in a timely manner and that the Regulator’s method of service was suboptimal. The Tribunal also directed the Regulator to explain its failure to include relevant email exchanges in the case bundle.

Holding and Implications

The Tribunal allowed the appeal, revoked the penalty notice, and remitted the matter back to the Regulator. The Regulator was directed to provide further information regarding its conduct in handling the case, specifically the omission of evidence from the case bundle.

The direct effect of this decision is the cancellation of the penalty against the company. The decision does not establish new legal precedent but highlights procedural expectations for regulators and the importance of effective communication methods in regulatory compliance.