Integrated Options UK Limited v The Pensions Regulator

1. By this reference Integrated Options UK Ltd (“the Employer”), challenges a fixed penalty notice of £400 (”FPN”) issued by the Regulator on 3 rd August 2023 and an Escalating Penalty Notice of £500 per day (“EPN”) issued 4 th September 2023.

2. The FPN was issued under s. 40 of the Pensions Act 2008 . It required the Employer to pay a penalty of £400 for failing to comply with the requirements of a compliance notice (CN) issued on 8 th June 2023. The Compliance Notice was issued under s. 35 of the Pensions Act 2008 . It directed the Employer file a redeclaration of compliance.

3. The EPN was issued for failing to comply with the initial Compliance Notice. The daily rate was to be in force from 2 nd October 2023.

4. The Appellant sought a Review of the Notices on the 9 th November 2023, but the Regulator determined that as the request was outside of the 28 day time frame it had no power to consider a Review. The Appellant indicated that it had not received any communications except a chaser letter for non-payment. It had certainly not received the CN, the FPN or the EPN.

5. The Employer referred the matter to the Tribunal on 17 th November 2023.

6. On 11 th January 2024 the Regulator sought to strike out the reference as the Tribunal had no jurisdiction, as there had been no Review as required by s44 of the Pensions Act 2008 . The Regulator indicated that as at that date compliance had still not been made.

7. In response to the application to strike out the Appellant indicated that the notices were “ erroneously delivered to and opened by a separate office tenant, meaning we only became aware of it upon your second letter. This was an inadvertent oversight rather than wilful ignorance or gross misconduct, and as also mentioned, we have implemented rigorous mail handling procedures to ensure it does not occur again. However, striking out our appeal based on a single honest mistake would severely harm our firm .” In a further email. “ Firstly, your stance relies heavily on the statutory presumption that the initial notice was received by us because it was delivered to our registered office. However, this disregards the exceptional circumstances at play regarding shared office tenants. Our registered mailing address corresponds to a flex space with multiple unaffiliated occupants. When correspondence lacks further identifying details, packages are easily dispersed incorrectly. You have provided no concrete evidence the notice actually reached our physical inbox or employees. It is presumptuous to claim we "mishandled" or "ignored" something never in our possession. This reasoning seems to overapply the assumption of service in our highly unique situation. We are more than willing to furnish signed affidavits from all fellow office tenants verifying the initial notice's errant delivery .” No affidavits, statements or otherwise were provided.

8. Within a reply to the Regulator the Appellant produced a copy of the FPN. It wasn’t clear where that had been obtained from, how or when, but the possession of the same is a matter the Regulator raises as proof that the Notice, and indeed the others, were actually received.

9. The Tribunal response to the Request to strike out the Appeal was to adjourn the same pending the determination of the case of . Subsequently, via Case Management Directions the appeal was set down for the Tribunal to determine the strike out application and/or the case on its merits, with the Appellant being warned that it may face a difficult position trying to prove its case. JM Kamau Ltd v The Pensions Regulator [2025] UKFTT 484 (GRC)

10. The parties and the Tribunal agreed that this matter was suitable for determination on the papers in accordance with rule 32 of The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009, as amended. The Tribunal determined that a fair and just decision could be reached on the materials provided.

11. The Tribunal considered a bundle of 198 pages. The Appeal

12. Under s. 44 of the 2008 Act , a person who has been issued with a FPN and or EPN may make a reference to the Tribunal provided an application for review has first been made to the Regulator. The role of the Tribunal is to make its own decision on the appropriate action for the Regulator to take, taking into account the evidence before it. The Tribunal may confirm, vary or revoke a FPN and when it reaches a decision must remit the matter to the Regulator with such directions (if any) required to give effect to its decision. However, the Tribunal only has jurisdiction to consider a reference if a review has taken place.

13. The Employer’s Notice of Appeal seeks to challenge the Notices, but accepts that no Review has taken place. The Appellant asserts that the Notices were never received. The first the Appellant knew about the penalties was when they were chased for non-payment of the £14,400 that was said to be due, by letter dated 31 st October 2023. Upon receipt the Appellant contacted the Regulator seeking a review on 9 th November 2023. The Appellant argues that the penalties imposed will be devastating to a company just starting out and “still struggling to break even.”

14. The Regulator maintains that the CN, FPN and EPN were all sent to the registered office of the Appellant in accordance with s303 of the Pensions Act 2004 , and therefore served. They assert the evidence provided by the Appellant is insufficient to rebut the presumption of service.

15. The Appellant seeks the FPN and EPNs removal, as they argue service is not proved. Nothing more than a bare assertion of the same is however advanced.

16. The Respondent provided the following timeline of events, Chronology : • 30th May 2023 – date of non-compliance re Employer duties • 8 th June 2023 – CN issued • 3 rd August 2023 – FPN issued • 4 th September 2023 – EPN issued • 31 st October 2023 – penalty reminder letter sent • 9 th November 2023 – Review requested • 17 th November 2023 – Respondent indicates no review as too late • 17 th November 2023 – Reference to the Tribunal • 13 th January 2024 – Strike out application • 31 st January 2024 – Tribunal refuses strike out leaving it for determination at full hearing Conclusion

17. The Tribunal looked at and considered the papers and evidence before it with care.

18. The ultimate issue was whether the Notices, or any of them, had been served upon the Appellant. As Judge O’Connor said in Kamau that is a matter for the Respondent to prove. Here there is clear evidence the notices were produced and sent to the registered address of the Appellant company and accordingly it seems to the Tribunal to be clear that the Respondent has met its burden.

19. The automated system of Notice generation is relied upon, and accepted as per the ruling in Kamau .

20. The Appellant makes a bare assertion that the Notices were not received. Further, it asserts, again without more, that the Appellant works from shared office space and another tenant of the space has inadvertently opened the Notices sent to the Appellant. It is again just an assertion. There is nothing to corroborate or confirm the position advanced. As was made clear in London Borough of Southwark v Akhtar [2017] UKUT 150 a mere assertion is not enough to displace the presumption of service.

21. The suggestions made that all of the Notices, despite being addressed to the Appellant, were opened and kept by another business within the “shared space” is difficult to accept generally. It seems a remarkable coincidence that all 3 letters were not received, but the demand for payment was. Further the possession of the FPN raises real issues for the Appellant in showing it never received the Notices.

22. As was discussed by Judge O’Connor in Kamau, “ 114.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. 115.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. 116.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 00935GRC), 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”. 117.Of course, Judge Oliver's decision does not set a precedent. I do, however, entirely agree with the observation she makes.”

23. As is indicated the suggestion that post correctly delivered to a combined address location is not enough to prove service would undermine the whole system. There may of course be situations where, for example, an individual could show, by evidence, that someone was stealing post and that led to problems, but such situations would be fact specific and would need to be confirmed in some way. Here, there is nothing to support the stance advanced.

24. As a result I find that the notices were sent to the correct address by the Regulator. I do not positively find that the account advanced by the Appellant is untrue, but I do have real concerns bearing in mind the provision of the FPN, and the implausibility of only the Notices going astray. However, I do find that no evidence has been advanced that displaces the presumption. Accordingly, applying section 7 of the Interpretation Act 1978 , the notices were received by the Appellant.

25. Having proved service as a result, the penalties become payable.

26. There has been no Review, as it was outside of the statutory timeframe, and accordingly there is no jurisdiction for the Tribunal to look at this matter, pursuant to s44(2) of the Pensions Act 2008 .

27. As a consequence from that determination, 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 therefore struck out.