Tribunal upholds £400 TPR fixed penalty notice

Issued in December 2021, the unpaid contributions notice requested that Yi Xuan Lou Limited provides the watchdog with information by February 8 2022. TPR then issued the fixed penalty notice on February 23.

The watchdog subsequently reviewed its decision to impose the notice and confirmed its decision to Yi Xuan Lou on March 18.

Asking the General Regulatory Chamber of the First-tier Tribunal to withdraw the fixed penalty notice, the employer relied upon three grounds of appeal in response to the penalty. It said that it did not receive the unpaid contributions notice “or any other correspondence from the respondent or their pension provider” between December 29 2021 and February 24 2022.

It also submitted that it is now compliant with the requirements of the unpaid contributions notice — having complied on receipt of the fixed penalty notice — and added that it was told on the telephone by the regulator’s staff that if it provided evidence of compliance, the penalty would be removed.

Yi Xuan Lou provided some evidence to support its second ground of appeal, but not on the other grounds, the tribunal noted. It speculated that postal disruption during the Christmas period had led to the non-delivery of the unpaid contributions notice, an argument that the tribunal was unable to substantiate.

“It has not provided any evidence of the telephone call or other advice from the regulator on which it relies,” judge Alison McKenna observed, according to a summary of the tribunal’s judgment on August 22.

It added that the regulator said there was no evidence of the postal disruption “and that in any event it is entitled to rely on the statutory presumption of service”, having sent the unpaid contributions notice to the employer’s registered address.  

TPR acknowledged the employer’s statement that the unpaid contributions have now been made, but this confirmation was not provided to the watchdog until after the service of the fixed penalty notice. TPR disputed the account of the telephone call and provided, as evidence, a note of the call taken by its staff. 

The watchdog said that the fixed penalty notice was the appropriate action to take because there were unpaid contributions, and Yi Xuan Lou did not respond to the unpaid contributions notice by the deadline set. 

“While the employer submits that the unpaid contribution payments have now been made, it is undisputed that the employer did not provide confirmation of this to the regulator before the deadline set,” McKenna said.  

“I find that the employer had a legal duty to comply with all three of the requirements of the unpaid contributions notice and that these requirements included the step of providing confirmation to the regulator. The employer failed to do this until after the fixed penalty notice had been served.”

The judge said that she was “unable to make a finding of fact on the balance of probabilities that the unpaid contributions notice was not received due to Christmas-time postal disruption”. 

“The employer’s suggestion to this effect is a mere assertion, unsupported by any evidence,” she continued.

McKenna was also unable to accept that the employer was told by the regulator’s staff that the fixed penalty notice would be cancelled if the unpaid contribution payments were made. 

“The employer has not provided any evidence to support this assertion, whereas the regulator has provided an attendance note which does not record the advice on which the employer relies,” she said.

In the absence of any other extenuating circumstances, the judge found in favour of TPR and upheld the fixed penalty notice.