MS DAOWEI HANAppellantTHE 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
Introduction
[1]The parties have both 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 and, having considered the material before me, I am satisfied that the appeal can properly be determined without a hearing.[2]This appeal concerns a Fixed Penalty Notice ("FPN") issued by the Respondent pursuant to section 40 of the Pensions Act 2008. The notice imposed a financial penalty of £400 on the basis that the Appellant had failed to comply with the requirements of an Unpaid Contributions Notice ("UCN") issued on 30 June 2025.[3]The Appellant sought a review of the FPN. By decision dated 30 September 2025 the Respondent confirmed the notice. The Appellant thereafter exercised her right to refer the matter to the Tribunal.
The legal framework
[4]The Pensions Act 2008 imposes a number of obligations on employers in relation to automatic enrolment and the payment of pension contributions. The Respondent is responsible for securing compliance with those obligations and possesses a range of enforcement powers for that purpose.[5]Where the Respondent is of the opinion that relevant pension contributions have not been paid on or before the due date, sections 37 and 38 of the Pensions Act 2008 permit it to issue an Unpaid Contributions Notice. Such a notice may require an employer, by a specified date, to calculate unpaid contributions, pay those contributions and take such further steps as the Respondent considers appropriate to remedy the failure.[6]If the Respondent is of the opinion that an employer has failed to comply with an Unpaid Contributions Notice, section 40 permits the issue of a Fixed Penalty Notice. The amount of the fixed penalty is prescribed by the Employers' Duties (Registration and Compliance) Regulations 2010 and is £400.[7]A person to whom a Fixed Penalty Notice has been issued may seek a review under section 43 of the Act and may thereafter make a reference to the Tribunal under section 44.[8]Pursuant to section 103(3) of the Pensions Act 2004, the Tribunal must determine what, if any, is the appropriate action for the Respondent to take in relation to the matter referred. The Tribunal reaches its own conclusion on the evidence before it and may depart from the Respondent's decision even where that decision fell within a range of reasonable responses.[9]In determining a reference concerning a penalty notice, it is proper for the Tribunal to take account of whether an employer has established a reasonable excuse for any compliance failure. Whether such an excuse has been established is a matter for the Tribunal on the evidence before it.
Background
[10]On 30 June 2025 the Respondent issued a UCN after receiving information from NEST indicating that pension contributions due in respect of the period 24 February 2025 to 10 March 2025 had not been paid. The UCN required compliance by 11 August 2025.[11]The UCN required the Appellant to calculate the outstanding contributions, pay those contributions and provide evidence to the Respondent demonstrating that payment had been made. The notice specified the evidence which would be regarded as acceptable and expressly stated that documents showing payments scheduled for a future date would not suffice. The Respondent required evidence showing that the relevant periods had been paid together with the actual date of payment.[12]The UCN identified those matters as three separate steps and required each step to be completed by 11 August 2025. The notice further warned that failure to comply with its requirements could result in the issue of a Fixed Penalty Notice.[13]On 20 July 2025 the Respondent issued a reminder email reiterating the requirements of the UCN and again identifying the evidence which would be required before expiry of the deadline.[14]The Appellant does not dispute receipt of the UCN or the reminder email. Her case is that a direct debit arrangement had been established with NEST and that a review of the NEST portal before the deadline showed a payment as being "in progress". She contends that she therefore believed that the outstanding contributions would be collected automatically and that any subsequent failure in the payment process occurred through circumstances beyond her control.
Discussion and conclusions
[15]The central difficulty with the Appellant's case is that there is very limited evidence before the Tribunal concerning the matters upon which she relies.[16]The only documentary evidence produced by the Appellant is the NEST screenshot. Whilst the screenshot appears to record a payment status, it does not identify when it was taken and therefore does not establish that it pre-dated either the 11 August 2025 compliance deadline or the subsequent issue of the Fixed Penalty Notice. Nor does it establish that a valid direct debit instruction had been successfully established, that NEST had attempted collection, or the reason why payment was ultimately not received.[17]Importantly, the Tribunal has not been provided with any evidence from NEST explaining what occurred. Nor has it been provided with evidence from the Appellant's bank concerning the status of any direct debit arrangement. There is no witness evidence explaining the operation of that arrangement or identifying the reason why payment was not received by the pension provider before the compliance deadline. The evidential picture is therefore incomplete.[18]In the absence of evidence from NEST, the Appellant's bank, or any witness with direct knowledge of the operation of the alleged direct debit arrangement, I am not satisfied on the balance of probabilities that the Appellant has established that the failure to pay arose through circumstances beyond her control. The screenshot relied upon by the Appellant is insufficient to establish either that an effective direct debit arrangement was in place before the compliance deadline or the reason why payment was not ultimately received.[19]I have considered whether the matters relied upon by the Appellant establish a reasonable excuse for failing to comply with the UCN. For the reasons set out above, I am not satisfied on the balance of probabilities that the Appellant has established that the failure to pay arose through circumstances beyond her control. I therefore find that the Appellant has failed to establish a reasonable excuse for the non-compliance relied upon in this appeal.[20]The appeal nevertheless encounters a more fundamental difficulty. The issue before the Tribunal is not just whether the Appellant believed payment would be collected automatically. Nor is it whether the Tribunal can determine the precise reason why payment was ultimately not received. The issue is whether the requirements of the UCN were complied with by the stipulated deadline.[21]Whilst the decisions in Kingswear Gallery Limited v The Pensions Regulator [2022] UKFTT PEN 2021 0257 (GRC), Sweet Time (3) Limited v The Pensions Regulator [2023] UKFTT 86 (GRC) and D&G Property and Investment Ltd v The Pensions Regulator are not binding upon me, I find the reasoning persuasive. Those decisions emphasise, on the facts of those cases, that compliance with a UCN is not confined to the payment of outstanding contributions but requires compliance with all of the requirements specified within the notice. In particular, both Kingswear and Sweet Time recognise that a requirement to provide evidence of compliance forms part of the notice itself and serves the important purpose of enabling the Respondent to determine whether contributions have in fact been paid and whether further enforcement action is necessary. I respectfully agree with that reasoning.[22]The UCN in the present case expressly required the Appellant to provide specified evidence of compliance to the Respondent by 11 August 2025. That requirement formed part of the notice itself. Compliance with the UCN therefore required compliance with that obligation.[23]The Respondent also relies upon the fact that the Appellant made no contact before expiry of the compliance deadline. Whilst that fact is not determinative, I regard it as a relevant consideration. The evidence before the Tribunal does not establish that the Appellant was in possession of evidence capable of demonstrating compliance by 11 August 2025, nor does it establish that any communication was made to the Respondent explaining the position before the deadline expired.[24]The evidence before the Tribunal does not establish that satisfactory evidence of compliance was provided to the Respondent before the deadline. Indeed, there is no evidence that such material was supplied prior to the issue of the Fixed Penalty Notice. The screenshot relied upon by the Appellant would not in any event have satisfied the requirements set out within the UCN because it did not demonstrate that payment had actually been made nor did it identify the actual date of payment required by the notice.[25]Nor does the evidence establish that the outstanding contributions had in fact been paid by the deadline. The NEST report records an exception payment with a final payment received date of 28 August 2025. That date post-dates the 11 August 2025 deadline contained in the UCN and the evidence before me does not establish that payment had been received by the compliance deadline. Whilst that demonstrates that the contribution issue was eventually remedied, it equally demonstrates that payment was not received by 11 August 2025 and was not received until after the Fixed Penalty Notice had already been issued on 27 August 2025.[26]I accept that subsequent compliance forms part of the overall factual background. However, as the Tribunal observed in D&G Property and Investment Ltd, late compliance does not excuse previous non-compliance. Were it otherwise, the deterrent effect of the statutory enforcement regime would be substantially diminished. The question is whether the UCN was complied with by the deadline specified within it. On the evidence before me, it plainly was not.[27]Drawing these matters together, on the balance of probabilities, I find that:a. Payment was not received by the pension provider by 11 August 2025;b. Satisfactory evidence of compliance was not provided to the Respondent by that date; andc. The requirements of the UCN were therefore not complied with. Those objective facts are sufficient to determine the appeal.[28]Having considered all of the evidence now before the Tribunal, I am satisfied that the issue of the Fixed Penalty Notice was the appropriate action for the Respondent to take. The appeal must therefore be dismissed.
Conclusion
[29]The appeal is dismissed.[30]The matter is remitted to the Respondent with a direction confirming the Fixed Penalty Notice dated 27 August 2025. Signed: Date: Judge Kiai 4th August 2026