This is the Appellant’s appeal by way of reference in respect of a fixed penalty notice (FPN) with reference 178990420709 issued on 4 December 2025 under section 40 of the Pensions Act 2008 (PA 2008). The Notice was issued because the Respondent was of the opinion that the Appellant had failed to comply with a Compliance Notice (CN) issued under section 35 of the PA 2008 on 8 October 2025 with a deadline date of 18 November 2025.

The Pensions Act 2008 and the Employer’s Duties (Registration and Compliance) Regulations 2010 (the 2010 Regs) impose a number of legal obligations on employers in relation to the automatic enrolment of certain employees into occupational or workplace personal pension schemes. The Respondent has statutory responsibility for securing compliance with these obligations and may exercise certain enforcement powers. Each employer is assigned a staging date from which the timetable for compliance with their obligations is set. An employer must provide certain specified information to the Regulator in a “declaration of compliance” within five months of the staging date. If there is a failure to do this, the Regulator can issue a compliance notice (section 35 of the PA 2008). If there is a failure to comply with this, the Regulator may issue a fixed penalty notice (section 40). Section 43 provides for the Regulator to review notices, including a compliance notice and a fixed penalty notice. The penalty prescribed in the present case is £400.

The Tribunal’s jurisdiction is derived from section 44 of the PA 2008. Where a person to whom a notice has been issued under section 40 has first made an application for review of the FPN, they may then make a reference to the Tribunal. The role of the Tribunal is to make its own decision on the appropriate action for the Regulator to take, considering all the evidence before it. The Tribunal may confirm, vary or revoke a FPN and when it reaches a decision, it must remit the matter to the Regulator with such directions (if any) required to give effect to the decision.

Section 303 of the Pensions Act 2004, applied by section 144A of the PA 2008 to notices issued under its provisions, provides that:

“…

(2)

The notification of 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 at that address.

….

(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,

….”

The Appellant is a body corporate and, therefore, section 303(6)(a) of the 2004 Act applies to the instant reference.

Section 7 of the Interpretation Act 1978, referred to in section 303(6), provides that:

“Where an Act authorises or requires any document to be served by post (whether the expression “serve” or the expression “give” or “send” or any other expression is used) the, unless the contrary intention appears, the service is deemed effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post”.

The Respondent may also rely on a second set of rebuttable presumption as to the issue and service of notices under the PA 2008 contained in regulation 15 of the Employer’s Duties (Registration and Compliance” Regulations 2010 (the 2010 Regs). Regulation 15 provides:

“(3)

The presumptions in paragraph (4) apply where notices to which section 43 applies are issued…..

(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.”

Factual Background

The undisputed facts are that the Appellant’s duties staging date was 22 April 2025, meaning that the deadline for making a declaration of compliance was 22 September 2025. The Respondent sent two reminder letters in May 2025 which had instructions on how to complete automatic enrolment duties. A further warning letter was sent in September 2025.

The Appellant did no complete and submit its Duty of Compliance by the required date and, on 8 October 2025, the Respondent issued a Compliance Notice (CN). The CN set out the steps which the Appellant was required to take and the deadline for compliance was extended to 18 November 2025. The CN stated that a £400 penalty may be imposed if the Appellant failed to comply by that date.

The Appellant did not submit its Declaration of Compliance by the extended deadline of 18 November 2025 and, on 4 December 2025, the Respondent issued the FPN requiring a penalty payment of £400 and compliance with the Compliance Notice by 5 January 2026.

The Appellant had called the Respondent on 9 December 2025 to enquire about the FPN and said that it had submitted their Duty of Compliance Form by post using a pre-paid envelope. The Respondent advised it to submit Duty of Compliance online. The call then ended unexpectedly.

The Appellant called the Respondent again on 10 December 2025 to say that it had received a letter with a pre-paid envelope which it had returned by post shortly afterwards with the written Duty of Compliance because it had trouble submitting online.

The Respondent asked whether this letter was the CN from October 2025 and the Appellant confirmed that it was a letter from October. The Appellant was asked if it could show any evidence of having submitted the Duty of Compliance by post and advised that it would need to complete the form online.

The Appellant declared compliance on 4 January 2026.

The Appellant sought a review of the FPN also on 4 January 2026. The Respondent upheld the penalty on 7 January 2026.

The Appellant appealed to the Tribunal on 12 January 2026

In summary, the Appellant appeals on the grounds that:

The Respondent states that the Compliance Notice had been issued to the Appellant at its proper address.

The Respondent argues that, where the Appellant refers to a “paper form”or “prepaid envelope” it is likely it is referring to the CN issued on 8 October 2025. The Appellant confirmed in its telephone call with the Respondent on 10 December 2025 that the letter it was talking about was received in October. Other than the CN, the Respondent had sent no other letters to the Appellant in October. The Respondent does not issue CNs alongside pre-paid envelopes as this would be prohibitively expensive. However, the CN was issued in a pre-paid envelope which may be the envelope which the Appellant was referring to. On this interpretation, the Appellant has received the CN.

Alternatively, the Appellant’s claims amounted to nothing more than bare assertions of non-receipt which were not sufficient to rebut the strong presumptions. The principles set out in Philip Freeman Mobile Welders Ltd v The Pensions Regulator [2022] UKUT 62 (AAC) should not apply as the Appellant has put forward no more than a bare assertion of non-receipt and therefore this case is distinguishable from Freeman.

The Respondent has received no post from the Appellant and there is no indication that it attempted completion of the online Duty of Compliance before the FPN was issued. No evidence has been produced to show that the Appellant posted a completed Duty of Compliance by post. The Respondent is of the view that it was only after the FPN was issued that compliance was attempted.

The Respondent further argues that having a small number of employees does not absolve the employer from its legal duty to complete a declaration and the data available to the Respondent indicates that it has two eligible employees. The mere existence of employees necessitates a declaration.

The Respondent states that the amount of the penalty contained in the FPN is prescribed by regulation 12 of the 2010 Regulations and the Respondent does not have discretion as to the amount.

The Respondent maintains that it was reasonable and proportionate issue the FPN. The grounds of appeal disclose on reasonable excuse for their failure to comply so as to justify revocation of the FPN.

Two main and, in this case, related issues fall for determination by the Tribunal:

On the facts of this case, the Compliance Notice was sent to the proper address of the Appellant. I am satisfied from the evidence of what was said by the Appellant in the telephone call made by it to the Respondent on 10 December 2010, a recording of which I have listened to, that it is more likely than not that the Appellant received the CN. The Respondent had sent no other correspondence to the Appellant in October and the fact that the Appellant, on its own evidence, regarded the document it received in October as requiring it to complete its Declaration of Compliance, satisfies me that it was the CN.

Whilst, given that finding, it is not necessary for me to consider the Respondent’s alternative argument that it is entitled to rely on the two statutory presumptions of service, I would not have accepted it. The presumptions require “starting evidence” from the Respondent that it issued the notices as a matter of fact. That is an essential first step if it wishes to rely on the statutory presumptions (see J.M.Kamau v The Pensions Regulator [2025] UKFTT 00425 (GRC)). As it cannot rely on the presumptions, the Respondent must rely on evidence that the Compliance Notice was received, which it has done and I have found that it is more likely than not that the Compliance Notice was received by the Appellant

Declaring compliance is not, as the Respondent points out, a mere administrative decision. It is a vital source of information for the Respondent and a central part of its compliance and enforcement approach. Understandably, therefore, its Compliance and Enforcement Policy makes it clear to employers, how importantly compliance with the duty is regarded and I find that the issue of the FPN was appropriate.

A responsible employer should be aware of its declaration duties and to comply with them in a timely manner, whether or not reminded of them by the Respondent.

I am not satisfied that there is a reasonable excuse for the failure to comply with the CN. Whilst the Appellant states that it completed the form in hard copy and posted this to the Respondent, it has produced no proof of posting and no copy of the declaration as posted. It would have been clear to the Appellant from the terms of the CN that the consequences of non-compliance were severe for a small company, which should have signalled the need to maintain a record of posting in the event that the form was not received by the Respondent. It is also clear to me from the Appellant’s grounds of appeal that it did not understand, as it should have done, the nature and extent of the duty which it was obliged to comply with. That undermines any claim that there was a reasonable excuse for its non-compliance.

As to the level of the penalty, this is prescribed by 2010 Regulations and the Tribunal has no power to vary it.

However, I accept that a £400 penalty represents a large sum for a small company to pay given the circumstances. The Tribunal is aware from other casework that the Respondent is under a duty to ensure that its actions do not cause financial distress to a company and that the impact of a penalty is a matter which its debt recovery team is required to consider in making a decision as to whether to recover the sum involved. This is not a matter for the Tribunal but the Appellant has the opportunity to make representations to the Respondent as to any hardship it would suffer in paying the penalty

For the above reasons, I am satisfied that the Compliance Notice was issued, served and received and that the Appellant has not provided a reasonable excuse for non-compliance with it. I determine that issuing the FPN was the appropriate action to take in this case. I remit the matter to the Regulator and confirm the FPN. No directions are necessary.