MORRIS ABERDEEN T/A MORRISAppellantROOTS NATURAL HAIRAppellantTHE PENSIONS REGULATORRespondentDecision: for reasons given below, I dismiss the reference and remit the matter to the Pensions Regulator on that basis. No directions are necessary.REASONS
Background
[1]The parties have consented to this matter being determined on the papers pursuant to rule 32 of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009. Having considered the material before me, I am satisfied that the appeal can properly be determined without a hearing.[2]By this reference, the Appellant challenges a fixed penalty notice issued by the Respondent on 28 August 2025 pursuant to section 40 of the Pensions Act 2008, in the sum of £400, for failure to comply with a Compliance Notice dated 2 July 2025. The Appellant sought a review of that decision, which the Respondent upheld on 29 November 2025. The Appellant thereafter referred the matter to this Tribunal.[3]I have considered the bundle in full (125 electronic pages), including the Notice of Appeal and the Respondent’s response, together with the supporting documentation, whether or not each document is specifically referred to in what follows.
The Law
[4]The Pensions Act 2008 imposes obligations on employers in relation to automatic enrolment and the provision of prescribed information to the Pensions Regulator under section 11 of the Act. The Employers’ Duties (Registration and Compliance) Regulations 2010 prescribe the information to be provided and the time limits for doing so, including declarations and re-declarations.[5]Where an employer fails to comply with its obligations, the Respondent may issue a Compliance Notice under section 35 of the 2008 Act requiring specified steps to be taken within a stated period. Where the Respondent is of the opinion that such a notice has not been complied with, it may issue a fixed penalty notice under section 40. The amount of that penalty is prescribed by regulation and is not discretionary.[6]Section 303 of the Pensions Act 2004 provides for service of notices and other documents, and applies in this context by virtue of section 144A of the Pensions Act 2008. A notice may be sent by post to a person at that person’s proper address. In the case of a body corporate, the proper address is the address of its registered or principal office; in any other case, it is the person’s last known address. Section 7 of the Interpretation Act 1978 provides, where applicable, that service by post is deemed to be 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.[7]Regulation 15(4) of the 2010 Regulations provides that, for the purposes of that regulation, where a notice is given a date by the Regulator, it is presumed to have been posted or otherwise sent on that day; where a notice is posted or otherwise sent to a person’s last known or notified address, it is presumed to have been issued on the day on which it was posted or otherwise sent; and a notice is presumed to have been received by the person to whom it was addressed. Those presumptions are rebuttable. Whether they have been displaced falls to be determined on the balance of probabilities in light of all the evidence.[8]Decisions of the Upper Tribunal are binding on this Tribunal. I have had regard in particular to London Borough of Southwark v Akhtar [2017] UKUT 150 (LC), Philip Freeman Mobile Welders Ltd v The Pensions Regulator [2022] UKUT 62 (AAC), The Pensions Regulator v Strathmore Medical Practice [2018] UKUT 104 (AAC), and The Pensions Regulator v Been London Design Ltd [2026] UKUT 88 (AAC). Ordinary decisions of the First-tier Tribunal are not binding, although they may be persuasive. A decision of the Chamber President, such as J.M. Kamau Limited v The Pensions Regulator [2025] UKFTT 00425 (GRC), carries particular persuasive authority within this jurisdiction.[9]In Been London, the Upper Tribunal emphasised that, on a reference against a fixed penalty notice under section 40 of the 2008 Act, the Tribunal is entitled to consider whether the underlying compliance notice was effective. A failure to comply with a compliance notice presupposes that there was a duty to comply with it and therefore requires the tribunal to consider whether the notice was validly served. The Upper Tribunal further confirmed that electronic service is only available where the recipient has indicated willingness to receive communications in that form. The statutory presumptions regarding the issue and receipt of notices are rebuttable. Whether those presumptions have been displaced falls to be determined on the balance of probabilities having regard to the evidence as a whole; a mere assertion of non-receipt is not a distinct legal concept but simply evidence whose weight must be assessed by the Tribunal.
The Facts
[10]The factual background is largely uncontroversial. The Appellant was required to submit a re-declaration of compliance within the period prescribed by the Regulations but failed to do so. The Respondent issued a Compliance Notice dated 2 July 2025 requiring compliance by 12 August 2025. The Appellant did not take the required steps within that period, and the Respondent issued the Penalty Notice on 28 August 2025.[11]The Appellant subsequently completed the required re-declaration.
Notice of Appeal
[12]The Appellant’s primary case is that it did not receive the Compliance Notice at its business address and asserts that as a result, it had no knowledge of any outstanding re-declaration requirement and no opportunity to address the matter before enforcement action was taken.[13]The Appellant further submits that it has consistently met its automatic enrolment duties in previous cycles and the oversight on this occasion was not intentional but due solely to not receiving The Respondent’s correspondence. As such, it asserts that the penalty was disproportionate.[14]In its review request dated 26 September 2025, the Appellant stated: “We did not receive any prior communication regarding the two outstanding Declarations of Compliance. The only reason we became aware of this matter is because the most recent letter dated 28 August 2025 was delivered to a neighbouring premises, who then kindly passed it on to us. Postal delivery issues at 184 Tooting High Street The building at 184 Tooting High Street contains several different premises. We have been experiencing ongoing postal delivery problems as a result, leading to important correspondence being mis-delivered or delayed. We have been actively trying to investigate this matter to ensure that our mail is delivered correctly going forward. Commitment to compliance We take our duties under the Pensions Act 2008 very seriously and had no intention of failing to comply. Now that we are aware of this matter, we took immediate steps to address any outstanding obligations’. Postal delivery issues at 184 Tooting High Street
Commitment to compliance
[15]The Appellant also asked that future correspondence be copied to its email address in order to reduce the risk of further postal delay.
Discussion
[16]The starting point is the scope of the Tribunal’s task. Under section 44(1) of the Pensions Act 2008, the Tribunal has jurisdiction in respect of the issue of the Penalty Notice and the amount of the penalty. In this appeal, the Appellant challenges the issue of the Penalty Notice on the basis that it did not receive the Compliance Notice and therefore had no opportunity to comply before enforcement action was taken. It also contends that the penalty is disproportionate. The Respondent was entitled to issue the Penalty Notice only if the Appellant had failed to comply with a Compliance Notice. As the Upper Tribunal explained in Been London, a failure to comply with a Compliance Notice presupposes that there was a duty to comply with it. The issue of service therefore falls to be determined first, because effective service is a condition precedent to the effectiveness of the Compliance Notice and to the existence of any duty to comply with it.[17]It is not disputed that the Compliance Notice was sent by post to 184 Tooting High Street, Tooting, London, SW17 0SF. The Respondent proceeds on the basis that the Appellant is a sole trader and relies on that address as the Appellant’s last known or notified address. The same address appears on the Appellant’s Notice of Appeal and in the re-declaration material. The Appellant has not suggested that the address was not one at which notices could properly be served; its case is that post sent to that address may be delayed or misdirected within the building. I am satisfied, on the evidence before me, that 184 Tooting High Street was a proper address for service for the purposes of section 303 of the Pensions Act 2004.[18]There is no evidence that the notice was misaddressed, nor any evidence that it was not sent on the date it bears. In those circumstances, the statutory presumptions in regulation 15(4) of the 2010 Regulations are engaged. The notice is therefore presumed to have been sent on the date shown and presumed to have been received by the Appellant unless the contrary is proved.[19]The Appellant’s denial of receipt is evidence which I must assess in the context of the material as a whole. The question is not whether that denial can be characterised as a “bald assertion”, but whether the Appellant has established, on the balance of probabilities, facts sufficient to rebut the statutory presumption of receipt. That approach is consistent with the guidance given by the Upper Tribunal in Been London. It is also consistent with the principle in Akhtar that an unsupported assertion of non-receipt will not, without more, normally be sufficient to displace the presumption of service.[20]I accept that the Appellant’s premises may give rise to practical difficulties in the internal handling of post. In a multi-occupancy building, post may on occasion be delayed, misplaced or misdirected. Those matters are relevant, and I have taken them into account. However, the evidence does not establish that this particular Compliance Notice was not delivered to the Appellant’s proper address. At its highest, the Appellant’s evidence establishes a possibility that correspondence, if delivered to the building, may not have come to the attention of the relevant person. It does not establish, on the balance of probabilities, that the Compliance Notice was not delivered to the proper address.[21]I also bear in mind that the Fixed Penalty Notice was sent to the same address and came to the Appellant's attention. Whilst the Appellant states that it reached them only because it was passed on by neighbouring occupiers, that evidence tends to demonstrate that correspondence addressed to the business was capable of reaching the proper address and coming to the Appellant's attention. It does not positively support the proposition that the earlier Compliance Notice failed to arrive.[22]That distinction is important. In J.M. Kamau Limited v The Pensions Regulator, the Chamber President drew a clear distinction between a failure of delivery to the proper address and a failure, after delivery, for correspondence to reach the hands of a particular individual. In that case, the Tribunal observed that notices sent and delivered to the proper address were in a different position from notices not received at the correct address in the first place. Although Kamau is a decision of the First-tier Tribunal, it is a decision of the Chamber President and carries persuasive authority. I respectfully adopt its reasoning, which is consistent with the statutory scheme and with the Upper Tribunal authorities on service.[23]This case is therefore closer to the category of case identified in J.M. Kamau in which correspondence is alleged to have gone astray after arrival at the proper address, rather than a case in which the evidence demonstrates that the notice was never delivered to the proper address in the first place. The statutory scheme proceeds on the basis that service is effected at the proper address. Difficulties in the subsequent handling of mail do not, without more, demonstrate non-service.[24]I therefore find that the Compliance Notice was served at the Appellant’s proper address. The Appellant has not discharged the burden of rebutting the statutory presumption of receipt and the notice is therefore to be treated as received for the purposes of the statutory scheme. It follows that the Compliance Notice was effective and that the Appellant was under a duty to comply with it.[25]In its review request, the Appellant asked that future correspondence be copied to its email address to avoid the risk of further postal delay. I do not understand that request to amount to a submission that the Compliance Notice was invalid because it was not sent by email. In any event, insofar as the point arises, it does not undermine the validity of service by post. The statutory scheme permits electronic service only where the recipient has indicated willingness to receive documents in that form. There is no evidence before me that before the Compliance Notice was issued, the Appellant had given such an indication for the purposes of section 304 of the Pensions Act 2004 before the Compliance Notice was issued. The Respondent was therefore entitled to serve the Compliance Notice by post to the Appellant’s proper address.[26]Having found that the Compliance Notice was effective, I must consider whether the Appellant has established a reasonable excuse for failing to comply with it. In Strathmore Medical Practice, the Upper Tribunal recognised that lack of knowledge of a notice may, depending on the facts, be relevant to the question of reasonable excuse. In the present case, however, I have not found that the Appellant has established, on the balance of probabilities, that the Compliance Notice was not received. The reasonable excuse argument therefore largely overlaps with, and depends upon, the unsuccessful challenge to service.[27]I accept the Appellant’s evidence that it takes its obligations seriously, that it did not intend to fail to comply, and that it acted promptly once the Penalty Notice came to its attention. I also accept that the penalty may be burdensome for a small business. However, those matters do not amount to a reasonable excuse for failing to comply with the Compliance Notice within the time specified. The Appellant remained responsible for ensuring that it had arrangements in place to monitor and comply with its automatic enrolment duties and to manage regulatory correspondence sent to its proper address.[28]The Appellant also submits that it has generally complied with its obligations in previous cycles. I do not regard it as necessary to make any substantial finding on that issue. Even if I were to accept that submission, it would not alter my conclusions on service of the Compliance Notice or on the validity of the Fixed Penalty Notice. For completeness, however, I note that the Respondent disputes the Appellant's assertion and relies on records showing that an earlier Re-Declaration of Compliance was not submitted by the applicable deadline.[29]Section 44(1) gives the Tribunal jurisdiction in respect of both the issue of the Penalty Notice and the amount of the penalty. However, where a fixed penalty notice is issued under section 40 of the 2008 Act, the amount of the penalty is prescribed by regulation and, in this case, is £400. The Tribunal may therefore consider whether the correct statutory amount has been applied, but it has no discretion to substitute a lower amount on grounds of hardship or proportionality where the Penalty Notice has otherwise been properly issued. The Appellant’s submission that the penalty is disproportionate cannot, therefore, provide a basis for reducing the penalty.[30]Standing back and considering the matter in the round, I am satisfied that the Compliance Notice was properly served, that the Appellant has not rebutted the statutory presumption of receipt, and that the Appellant has not established a reasonable excuse for its failure to comply with the Notice. The Respondent was entitled to form the opinion that the Appellant had failed to comply with the Compliance Notice and was therefore entitled to issue the Fixed Penalty Notice under section 40 of the Pensions Act 2008. Applying the Tribunal’s own judgement to the evidence before it, I reach the same conclusion.
Conclusion
[31]For these reasons, the reference is dismissed. Pursuant to section 103(5) of the Pensions Act 2004, the matter is remitted to the Pensions Regulator. No directions are necessary. Signed: Date:Judge Kiai 4th August 2026