In Ian Moan v HMRC [2022] TC08449/V, the First Tier Tribunal (FTT) considered the deadline for opting out of auto-enrolment when an employer had provided incorrect information to the employee, who had consequently lost pensions fixed protection.

  • Mr Moan started a new employment on 17 October 2016 and the HR department advised that he would need to sign a payroll declaration to be auto-enrolled.
    • He told the employer that he did not wish to participate in any auto-enrolment scheme to enable a claim for Fixed Protection and did not sign the declaration.
  • Following a number of administrative errors, combined with IT problems, the appellant was auto-enrolled and payments were made to the pension provider on his behalf from February 2017.
  • Once the appellant had obtained access to online payslips (some four months later) he noticed that pension contributions had been made on his behalf, he requested the contributions be refunded and removed from auto-enrolment.
  • The appellant then made an application to HMRC for Fixed Protection which was issued on 6 July 2017.
  • The pension provider then advised the required forms to opt-out had not been prepared correctly,. They were corrected and a letter was written to HMRC explaining the position and asking for Fixed Protection to be retained.
  • HMRC refused the request on the basis that the :
    • application to opt-out of auto-enrolment was out of time and,
    • additional pension contributions had been made which meant the conditions for Fixed Protection were not met.
  • Following a Statutory Review and a grievance procedure pursued through the Pensions Ombudsman, Mr Moan made an Appeal to the FTT.

The FTT found that:

  • The time limit (one month) for opting out of auto-enrolment runs from the date on which a jobholder is given enrolment information.
  • The FTT's view was that enrolment information had to be correct in order to start the clock.
  • There had been a number of errors in the enrolment information the appellant had been given including:
    • Miscalculating the auto-enrolment start date.
    • The deferral to the contributions was made beyond the six-week deadline.
    • The deferral itself was beyond the three-month limit so invalid.
  • As the appellant delivered an opting-out notice prior to the receipt of the correct enrolment information, it could not have been delivered beyond the statutory deadline of one month.

It allowed the appeal: the application to opt-out of auto-enrolment had not been made out of time so there was no post-cessation event (additional pension contribution) which removed the appellant's Fixed Protection which was not therefore lost.

Useful guides on this topic

Pensions: Tax rules and planning
What tax rules apply to pensions? What tax relief is available? What tax charges can arise? What planning opportunities are there?

Statutory Review (By HMRC)
What is a Statutory Review? Is it automatic? What happens in a Statutory Review? Can you challenge a Statutory Review's findings? Can you influence a Statutory Review?

How to appeal an HMRC decision
Disagree with an HMRC decision? How to appeal, what type of decision can you appeal and what are your different options when you disagree with HMRC? What are the key steps in making an appeal?

External links

Ian Moan v HMRC [2022] TC08449/V

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