This book is the first looking in detail at the meaning and ambit of the 'connected', 'associated' and 'control' tests used in the Insolvency Act 1986 in sections 249 and 435 and incorporated by reference in pensions legislation.
Insolvency and pensions legislation has, in a number of areas, sought to include a wider group of “linked” persons for statutory purposes. In practice, the pensions legislation does not include a completely new definition of such a linked person, but instead uses the existing definitions found in the Insolvency Act 1986. These tests are important in insolvency law in relation to issues such as voting in company voluntary arrangements and time limits for reversal or clawback of pre insolvency transactions (eg undue preferences or transactions at an under value). These definitions in IA 1986 have become of particular importance when incorporated in pensions legislation. The tests are incorporated in various areas of pensions law. The two most important of which are:
- the moral hazard powers of the Pensions Regulator under Part 1 of the Pensions Act 2004. Broadly the Pensions Regulator has statutory power to issue either contribution notices -CNs (PA 2004, s38) or financial support directions - FSDs (PA 2004, s43) against third parties (i.e. not just the employer) in certain circumstances. But this power is limited to being only exercised against third parties who are connected or associated with an employer. The connected or associated test is the condition to liability (there are others) that is most objective and easiest to determine.
- Limits are imposed on investment by relevant occupational pension schemes in investment which are “employer-related” (PA 1995, s40 and regulations). These are defined as investments in an employer or any person associated or connected with an employer. In some circumstances investment contrary to the limits is a criminal offence.