In 2018, the Court of Justice of the European Union (CJEU or ECJ) ruled that individual members of pension schemes should receive at least 50 per cent of the value of their accrued pension benefits in the event of employer insolvency.

In May 2020 the Administrative Court heard a challenge brought against us by a number of members, to the way we’re implementing the ruling, and to the lawfulness of the compensation cap. 

On 22 June the court ruled that our approach of making a one-off calculation is permissible. However over the course of their lifetime each individual, and separately each survivor, must receive at least 50% on a cumulative basis of the actual value of the benefits that their scheme would have provided. 

The ruling found that the PPF compensation cap is unlawful on grounds of age discrimination. This part of the judgment doesn’t apply to FAS. We administer FAS on behalf of the Department for Work and Pensions.

We lodged an appeal on 20 August against the ruling on

-  the approach we may adopt to meet the requirement for members to receive 50% of the value of their entitlement 
-  how survivors’ benefits should be dealt with 

The Court of Appeal will have to decide whether to agree to let us proceed with the appeal.  We don’t know when we’ll find out if we can proceed or when the hearing might take place. We’ve asked for it to be dealt with as soon as possible.

Until we know more, we’ll continue to pay our members their current level of benefits.

Click on the relevant questions below to find out more about the ruling and what it means for you.

General

Does the ruling apply to both insolvent and solvent schemes?

What is an insolvent scheme?

How have you been calculating the increase?

Who has started to receive increased assistance so far?

Are there other members who might still be due an increase?

What are these other factors?

I’ve heard there is another case at the CJEU, PSV v Gunther Bauer. Will this affect the amount of assistance you pay?

I think I’m in this new phase

Are you prioritising certain groups of members within this remaining phase?

When will I hear from you?

What will you ask me to send to you?

Why are you asking me to send you information, rather than my former scheme?

How long will it take you to assess whether I’m entitled to an increase?

If you assess that I’m due an increase, when do you expect to start paying it?

Will my increased payments include arrears?

Will there be any time limit on arrears?

I’ve already sent you information about my former scheme benefits, when you were assessing capped members. Will I have to send you this again?

I’m not affected by the cap and you’ve not written to me about this issue before, although I think I’m due an increase in this phase. Will you write to me asking me for additional information?

If I’m due an increase, can I take some of it as a tax free lump sum?

I’m due to retire soon. Can I have a new illustration, to show what I would receive following any increase I might be due?

I’m deferred and won’t be retiring for some time. Will I be affected by the Hampshire ruling, and if so will I be informed of any change in my benefits?

If I die before my increase is paid, will the arrears be paid to my estate?

Will the court case challenging the way you are calculating the increases affect my payments?

I’m a surviving spouse. Will my benefit change as a result of the judgment?

I’m a capped PPF member.  Do I need to contact you to make a claim for any arrears of what I lost due to the cap? Is there a risk the arrears I can claim will be reduced as time goes on while you decide your next steps? 

I’m in one of the earlier phases

You’ve started paying me my increased assistance, but I’ve not yet received arrears. When will I get them?

When arrears are paid, will they be taxed?

Will there be any time limit on arrears?

You wrote to me and told me I’m eligible for an increase, but I’ve not received it. When will I be paid?

You wrote to me and told me that I’m not due an increase. Will my case be reconsidered in this new phase?

I should have been considered in an earlier phase, but I didn’t hear from you. What can I do?

Will the court case challenging the way you are calculating the increases affect my payments?

I’m a surviving spouse. Will my benefit change as a result of the judgment?

I’m a capped PPF member.  Do I need to contact you to make a claim for any arrears of what I lost due to the cap? Is there a risk the arrears I can claim will be reduced as time goes on while you decide your next steps?

General

Does the ruling apply to both insolvent and solvent schemes?

Currently, in compliance with existing legislation, any increases will apply to members of FAS schemes classified as having insolvent employers for the purposes of the Insolvency Directive. 

What is an insolvent scheme?

A FAS scheme will be ’insolvent’ where either the employer’s insolvency took place before the date of scheme wind up, or there was a deemed insolvency under FAS rules.  

We’ve also decided to categorise a FAS scheme as ’insolvent’ where the employer became insolvent after the date of scheme wind up, and the insolvency had a financial impact on the scheme because the employer still owed money to the scheme.  

A FAS scheme will be ’solvent’ where either the employer is still ongoing, or the employer became insolvent after scheme wind up at a point where it did not owe money to the scheme.

This is likely to be the case where:

  • no debt was triggered when the employer left the scheme, because the scheme was fully funded at that point; or
  • a debt was triggered when the employer left the scheme, but the trustees did not certify the debt and ask the employer to pay it; or
  • a debt was triggered when the employer left the scheme, and the trustees certified the debt and asked the employer to pay it, and either the employer paid the debt in full, or entered into a compromise agreement with the trustees and paid the compromised debt in full. 

How have you been calculating the increase?

To work out if you’re receiving at least 50 per cent of the value of your original scheme benefits, we’ve run a one-off valuation exercise. If the total actuarial value of your assistance is less than 50 per cent of your original scheme benefits, you’ll then receive an increase. We’re considering our approach following the June 2020 judgment and our appeal.

Who has started to receive increased assistance so far?

We’ve increased payments to all pensioners affected by the FAS assistance cap – either the standard assistance cap, or the long service cap – who’ve sent us the information we asked for. There are some capped pensioners who we’ve assessed as due an increase, but we need them to send us information before we can pay it.

We’ve also started increasing payments for pensioners for whom the effect of the cap alone didn’t take them below the 50% minimum but, when combined with other factors, do fall below the threshold. 

Are there other members who might still be due an increase?

Yes. There are members who weren’t subject to the cap but whose benefits were significantly affected by other factors.  

What are these other factors?

The other factors include:

  • If the annual increases a member would have received under their former scheme would have been significantly more than the annual increases which apply under the FAS
  • Differences between their former scheme’s benefit structure and the FAS’s benefit structure, e.g. spouse’s benefits

Will those other members still receive their increase now you’re appealing? 

Until we know more, we’ll continue to pay members their current level of benefits.

I’ve heard there was another case at the CJEU, PSV v Gunther Bauer. Did this affect the amount of assistance you pay?

The December 2019 ECJ judgment in the case of PSV v Gunther Bauer restated that, as a minimum, every individual must receive at least 50% of their accrued benefits. 

We consider that the implementation methodology we announced following the ECJ’s judgment in Hampshire, which will make sure that all our members receive at least 50% of the value of their accrued benefits, meets this requirement. 

There are other details of the judgment that we’re working through with the Department for Work and Pensions.  In the meantime, we’ll continue to make payments in line with the existing levels.

I think I’m in this new phase...

Are you prioritising certain groups of members within this remaining phase?

We started with pensioners for whom the effect of the cap alone didn’t take them below the 50% minimum, but when this is combined with other factors, do fall below the threshold.

We’re working on our approach to calculating the increases due to the remainder of members who have not been capped but are affected only because of other factors.

When will I hear from you?

If you’ve already sent us your latest benefit statement from your former scheme, you’ll hear from us when we confirm whether you are entitled to an increase.
If we think you’re affected, we’ve written to you to ask you to send us additional information.

If you haven’t sent us the information we asked for yet, please do so, or let us know if you need us to remind you what we asked you for. You can also find a copy of the letters we send you by logging on to your account on our members’ website.

If we think you’re in the group of members who are affected only because of other factors, we may not write to you at all until we have completed your calculations. This is because we expect we will have collected sufficient data to be able to make these calculations.

What will you ask me to send to you?

We’ll ask you to send us your last benefit statement from your former scheme and, if you have it, your scheme booklet.

Why are you asking me to send you information, rather than my former scheme?

Although we hold the information we need to calculate our members’ benefits under existing legislation, we need further information to be able to calculate the 50 per cent minimum in individual cases.

This means we have to gather what we need from various sources, including contacting members to see if they have information which could potentially help us.

For members whose schemes wound-up or transferred to the FAS some time ago, it’s likely that the members themselves may be able to give us the information we need faster; in particular where scheme documents have been archived.

We’re grateful to members who have helped us with this task so far.

How long will it take you to assess whether I’m entitled to an increase?

We’re working on our approach to calculating the increases due. Until we know more, we’ll continue to pay you your current level of benefits.

If you assess that I’m due an increase, when do you expect to start paying it?

We’re working on our approach to calculating the increases due. Until we know more, we’ll continue to pay you your current level of benefits.

Will my increased payments include arrears?

Although we’ve been processing increases, we haven’t yet paid any arrears, including tax free lump sums, unless it was a year since we sent you your new calculation, and you retired and/or your scheme transferred to us after 5 September 2012. We’ve not paid arrears in case the court decided the way we’re calculating them was wrong.

Until we know more, we’ll continue to pay you at your current rate. We won't pay any arrears or tax free lump sums even if it’s a year since we sent you your new calculation and you retired and/or your scheme transferred to us after 5 September 2012.

The terms of the judgment could result in us having overpaid your increase, and as we’ve always made clear, if this is the case we might have to recover the overpayment. We’ll make a further announcement as soon as we can. 

Will there be any time limit on arrears?

The judgment ruled that a six year limitation period may be applied to arrears of increased compensation payments due as a result of removing the PPF compensation cap. It didn’t rule on the applicable limitation period for arrears of increased compensation payments due to the Hampshire ruling.  We’ll make an announcement on further details after discussion with DWP and our Board. 

I’ve already sent you information about my former scheme benefits, when you were assessing capped members. Will I have to send you this again?

No, you won’t need to resend this information. 

I’m not affected by the cap and you’ve not written to me about this issue before, although I think I’m due an increase in this phase. Will you write to me asking me for additional information?

If you are in the group of members who are affected only because of other factors, we may not write to you at all until we have completed your calculations.
This is because we expect we’ll have collected sufficient data to be able to make these calculations.

If I’m due an increase, can I take some of it as a tax free lump sum?

The majority of FAS members won’t be eligible to take some of their increase as a tax free lump sum, but if you are eligible, we’ll let you know.

I’m due to retire soon. Can I have a new illustration, to show what I would receive following any increase I might be due?

Any retirement illustrations we give you will be based on your benefits before the CJEU increase has been applied.

We’re looking on a case-by-case basis at members who are approaching retirement and are likely to be affected, to see if any adjustment is necessary.

This may mean that we ask you for additional information.

I’m deferred and won’t be retiring for some time. Will I be affected by the Hampshire ruling, and if so will I be informed of any change in my benefits?

If we think you’re affected by the ruling, we’ll write to you nearer to your retirement if we need more information to carry out our checks. You don’t need to contact us.

Because the Hampshire ruling is about how much we must pay you when you retire, we can’t accurately calculate this a long way before you retire as we won’t know how much your FAS assistance might increase, nor what level the compensation cap will be. So if you ask us for a retirement illustration before we contact you, the illustration we give you will be based on your benefits before the CJEU increase has been applied.

Once you’re closer to retiring, we’ll be able to make sure you’ll be receiving at least 50% of the value of your former scheme benefit on retirement.

If I die before my increase is paid, will the arrears be paid to my estate?

Yes, any member who would have been eligible for an increase to their assistance but has passed away, will still be eligible to receive the arrears due up to the date of death.

In addition, any survivors receiving assistance following the member’s death will receive an increase to their payments.

As we’re currently involved with court proceedings, which are examining the way we’re calculating increases, we’re not yet able to pay arrears.

We believe it would be wrong to risk having to recover overpayments should the court decide that we must take a different approach.

As soon as we can, we’ll write to confirm the amount of arrears due. 

Will the fact you’re appealing the June 2020 judgment court case affect my payments?

Until we know more, we’ll continue to pay you at your current rate.

I’m a surviving spouse. Will my benefit change as a result of the judgment?

Until we know more, we’ll continue to pay you at your current rate.

I’m in one of the earlier phases...

You’ve started paying me my increased assistance, but I’ve not yet received arrears. Will I get them now?

Until we know more, we’ll continue to pay you at your current rate.

The terms of the judgment could result in us having overpaid your increase, and as we’ve always made clear, if this is the case we might have to recover the overpayment from your arrears. 

When arrears are paid, will they be taxed?

When we pay your arrears we’ll write to let you know how they’ll be taxed.

Will there be any time limit on arrears?

The judgment ruled that a six year limitation period may be applied to arrears of increased compensation payments, due as a result of removing the PPF compensation cap. 

It didn’t rule on the applicable limitation period for arrears of increased compensation payments due to the Hampshire ruling. 

You wrote to me and told me I’m eligible for an increase, but I’ve not received it. When will I be paid?

If you’ve sent us the information we asked for but haven’t been paid your increase, please contact us.

If you’ve not yet replied to our request for information, we can’t calculate your increased payment. When we receive your response, we’ll calculate your increase and pay it from the next payment date.

You wrote to me and told me that I’m not due an increase. Will my case be reconsidered in this new phase?

Yes. We’re now looking at pensioners for whom the effect of their cap alone didn’t take them below the 50% minimum, but when this is combined with other factors, do fall below the threshold.

I should have been considered in an earlier phase, but I didn’t hear from you. What can I do?

We believe we’ve contacted all capped pensioners. If you’re capped, but haven’t heard from us, please check your account on our members’ website. If you haven’t heard from us, please get in touch.

Will the fact you’re appealing the June 2020 judgment court case affect my payments?

Until we know more, we’ll continue to pay you at your current rate.

I’m a surviving spouse. Will my benefit change as a result of the judgment?

Until we know more, we’ll continue to pay you at your current rate.

The latest updates on the ruling

The court case and our plans to pay increases to members that are affected by the ruling are ongoing.

You'll find regular updates about the progress we are making in our latest news section.