Pension Schemes Bill

Richard Graham Excerpts

Tuesday 25th November 2014 Commons Chamber

[Steve Webb]

I am not sure whether the House will be thrilled to know that I have a slightly fuller note on this second group of new clauses and amendments. They are clearly very important, because they relate to the 2014 Budget freedoms that have been so widely welcomed in the House—and, particularly, outside it.

In the 2014 Budget statement, the Government announced that individuals with defined contribution pensions would be able to access their entire pensions flexibly from April 2015 if they wished to do so. This is the most radical reform of how people access their pensions for almost a century, and it returns choice to individuals by trusting them with their own finances. The Government believe that people should be free to make their own choices about how to use their savings, and our reform will give the 320,000 individuals who retire with defined contribution pension wealth every year choice as to how to access those savings.

We have committed ourselves to supporting the pension flexibilities through free, impartial guidance to help people to make informed and confident decisions about how to use their defined contribution pension savings in retirement. The new clauses and amendments cover a number of topics relating to the new flexibilities, and we notified members of the Public Bill Committee that they would be forthcoming. They include new clauses that provide safeguards for individuals who want to transfer to pension schemes to which the flexibilities apply; restrictions on transfers from public service pension schemes; a number of changes to pensions legislation to ensure that the flexibilities work as they are intended to; and further amendments relating to guidance to ensure that the arrangements run smoothly.

[Richard Graham (Gloucester) (Con)]

Will “appropriate independent advice” include consideration of financial assets other than defined contribution pensions? Does the Minister expect the Financial Conduct Authority to clarify in due course what constitutes “appropriate independent advice”?

[Steve Webb]

The issue that my hon. Friend has raised is covered by amendment 73, tabled by our hon. Friend the Member for Reigate (Crispin Blunt). If the House will allow me, I intend to allow our hon. Friend and others to make their points and then to respond to them, rather than trying to pre-empt that debate now. However, the FCA will indeed have more to say on these matters in due course.

New clauses 7 to 12 and new clause 13 create a safeguard to ensure that those who transfer from defined benefit to defined contribution schemes have received appropriate independent advice before doing so. That is important, because continuing membership of a DB scheme is likely to remain most people’s best option. However, the Government recognise that the attractiveness of transferring from DB to DC may increase for a limited number of people as a result of the reforms to DC savings.

New clause 7 creates a requirement for trustees and managers of a scheme to check that a member has received appropriate independent advice before converting a “safeguarded benefit” to a “flexible benefit”, or making a transfer payment in respect of safeguarded benefits to a scheme in which the member will acquire flexible benefits. In this context, the term “member” extends to any current or former employee, and any survivor of a member with subsisting rights to “safeguarded benefits”.

Subsection (2) enables the Secretary of State to set out in regulations the exact details of the regime that trustees or managers must abide by in checking that advice has been taken. Subsection (3) allows the Secretary of State to make regulations to allow exceptions to be made to the advice requirement, which will allow us, for example, to exempt those with a small amount of defined benefit wealth from the requirement to take advice. That approach was set out in the Government’s response to the consultation on freedom and choice in pensions, which was published in July this year.

Subsection (6) establishes that should a trustee or scheme manager fail to carry out a check, the scheme member will not be disadvantaged if the conversion or transfer of his or her benefits is ruled invalid. To ensure that trustees and scheme members carry out the required check, subsection (5) provides for certain civil penalties already used in the regulation of pensions to apply.

New clause 8 enables the Secretary of State to make regulations that set out the circumstances in which employers must pay for advice that is required by the advice safeguard. As we say in our response, we intend these circumstances to be, first, when a transfer is as a result of an employer-led transfer exercise, and secondly when a transfer is between DB and DC sections within the same scheme.

Subsection (2) allows the Secretary of State to ensure that the arrangement is fair for the employer by making regulations that can cap the amount that the employer must pay for advice on behalf of the member. It also allows the Secretary of State to take fairness to the member into account by making regulations preventing employers from attempting to pass the costs of advice back to members. Subsection (3) enables the Secretary of State to make regulations ensuring that employers will have to pay for the advice of former employees who continue to hold accrued DB rights in the employer’s scheme, as well as current employees.

New clause 9 is consequential to new clause 7. It ensures that trustees or scheme managers are not penalised for failing to comply with the provisions in new clause 7 for reasons outside their control—for example, when a check has been carried out, but it has not been possible to establish whether the member received appropriate independent advice. New clauses 10, 11 and 12 and amendments 82, 83 and 84 make provision parallel to that in clauses 7, 8 and 9 for Northern Ireland.

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[Stephen Timms]

I fear my hon. Friend is right. If in practice only a tiny proportion of people, or even a modest proportion, take up the guidance being offered, there is every chance of very serious problems in this market in the future. The House cannot be satisfied with that likelihood.

A number of organisations have pressed vigorously for a second line of defence requirement and they make a telling case. Proceeding without that safeguard will leave many consumers exposed—we should bear in mind that this is all supposed to happen from next April—making people guinea pigs and opening up the real possibility of another mis-selling scandal in the coming months.

[Richard Graham]

The right hon. Gentleman raises an issue that may not technically arise from the amendments that we are debating, but in which all hon. Members have some interest. What could a possible second line of defence look like?

[Stephen Timms]

That is a good question. I do not have a proposition to make. I would hope that those who are reflecting on these matters, particularly in the FCA, will be giving that some thought. There is time for it to incorporate something else and to put that second line of defence in its conduct rules. What it would look like, I am not in a position to propose this afternoon, but the need for it is clear. If the hon. Gentleman is about to propose something, I would welcome that.

[Richard Graham]

The right hon. Gentleman is being very generous and Madam Deputy Speaker is indulging us gently so I will be brief. I guess—perhaps the Minister might nod sagely at this stage—that this is an issue primarily for the FCA, but I hope that the message has gone out from us today that we are interested in it.

[Stephen Timms]

I am grateful to the hon. Gentleman. I hope that those who follow these debates will take that as an endorsement of the need for that second line of defence to be devised and put in place. If it was not there, there is a real risk of exposing consumers to risk of a kind that we have all seen before, and which would undermine these important reforms from the outset.

As the Minister explained, independent financial advice amendments are set out in new clauses 7 to 13. New clause 7 requires that when a member requests a transfer of safeguarded benefits, which are anything other than the cash balance or other money purchase benefits, with a view to acquiring flexible benefits, which are anything that is not safeguarded, the trustees

“must check that the member or survivor has received appropriate independent advice”.

I want to pick up a number of issues. What exactly are the trustees being required to do? Are they being asked to evaluate the appropriateness of the advice that was given to the scheme member? It does not seem right that they should be called upon to do that. It is quite a big undertaking for them and they are probably not in a position to do it. That wording could be understood to mean that that is what they are being asked to do. I would be grateful if the Minister commented on that.

We are seeing the creation of two new categories of benefits—safeguarded benefits and flexible benefits. I gather that the use of these terms is completely new; they are not used elsewhere in the statute. We have three new categories of scheme set out in the Bill, but this is the first time that we have had reference to safeguarded and flexible benefits. The use of those terms seems unfortunate, because safeguarded rights has a particular meaning, which was familiar when, admittedly now rather a long time ago, I was in the office that the Minister now holds. In the context of contracting out, safeguarded rights had a particular meaning. That term is now being introduced in the amendments before us to mean something completely different. The term “flexible” also has a specific meaning in pensions tax terms. Again, there is a real risk of confusion in reusing that particular term to mean something very different from the one people familiar with pensions tax arrangements understand it to mean.

The National Association of Pension Funds has argued that the statute should state that where the member has requested a transfer of his or her benefits, other than cash balance or other money purchase benefits to a scheme in which they will be paid a cash balance or money purchase benefits, the trustees should require appropriate proof from the member that he or she has received independent financial advice from a person authorised by the Financial Conduct Authority to give such advice. The regulations could define “appropriate financial advice” in that way. The NAPF makes the point that the language in front of us is rather ambiguous about what exactly is envisaged. Perhaps the Minister could comment on the alternative wording proposed by the NAPF, which it thinks would make it clearer and would not give the impression that trustees were being called upon to do something that is actually very difficult for them.

New schedule 1, as the Minister has told us, deals with the detail of the calculation of the cash equivalent transfer valuation, replacing the current CETV provisions under the 1993 Act. I fear that the tangle gets worse here. The distinction is between money purchase benefits, flexible benefits that are not money purchase benefits—in other words, cash balance benefits—and benefits that are not flexible benefits, previously defined as safeguarded benefits. There are also transferable benefits, which are benefits

“by virtue of which this Chapter applies to the member.”

This is all quite complicated stuff. One of the fears is that the changes in terminology, and the reuse of previously familiar terms to mean completely different things, significantly increase the amount of confusion being created. Instead of just removing the current statutory requirement that all benefits be transferred if a member wants to transfer any benefits, the effect here is to prohibit schemes from having rules that require transfer of other categories of benefits if the member wants to transfer only one category, or that

“prevent a member who exercises a right under this Chapter in relation to a category of benefits from accruing rights to benefits in another category.”

Again, the NAPF makes the point that that last provision is “incredibly wide”. It points out that schemes do not let members participate in various sections willy-nilly; there are all sorts of rules about who can accrue what sorts of benefits and under what circumstances. The fact that somebody has asked for a CETV in one section of the scheme should not entitle them to benefits in other sections, but that is the way that this provision has been written. Perhaps the Minister could comment on whether that is what he really intends.

New clauses 14 to 16 seem to allow the Secretary of State to forbid draw-down from schemes that give members a guaranteed return, because draw-down can only be from money purchase benefits. That seems odd as well. Perhaps the Minister could tell us whether he or his officials discussed that with anybody before producing these new clauses. Certainly, the NAPF tells me that it is not aware of any discussions about that with it, or with anybody else. It well understands that schemes with guarantees must comply with the funding regime, but it does not understand why they should not be allowed to do draw-down or UFPLS—uncrystallised funds pension lump sum. Perhaps the Minister could comment on that.

The Bill requires members of defined benefit schemes to have received independent financial advice before being permitted to transfer into a defined contribution arrangement, unless they have pension wealth amounting to less than £30,000. The NAPF is concerned that that will impose a requirement that it would be very difficult, if not impossible, to meet. People will be required to prove that they do not have pension wealth in excess of £30,000, which will be very difficult for the average saver. There is the potential for a lot of confusion for savers attempting to assess their level of pension wealth. They might not realise that previously crystallised pension assets will be counted towards that threshold. They might find it difficult to assess the current value of such assets.

The average person may well not understand—nor should they be expected to understand—that the £30,000 will be measured not by the current CETV system but using the methodology created to measure benefits against the lifetime allowance, information that members are not currently entitled to get from other schemes. As a result, many defined benefit members will not be able to exercise their rights in the way that the Bill intends. The NAPF urges that savers should be able to access a total of £30,000 of defined benefit benefits calculated on a CETV basis, regardless of any additional defined contributions savings that they may have. Will the Minister respond to that point?

As with the previous group of amendments, I ask the Minister to set out his intentions on the regulations that are envisaged. He gave a clear and helpful response to my earlier question, but as he is well aware, it is good practice where regulations are referred to in primary legislation for Members who are scrutinising that legislation at least to have a draft in front of them when determining whether they support the provisions. The Minister said that it was not possible to give the costs for trustees because there was not yet a draft of the regulations. I think he will accept that it is very difficult for Members to decide whether to support these provisions if the House has not been told the cost for those who have to operate the regulations. Telling Members that the Government have no idea, at this stage, of what the cost of all this will be for everybody makes it impossible for us to do the job that we are required to do in properly scrutinising the costs and benefits that the legislation provides.

I was rather down-hearted by the content of the Minister’s previous answer, but I will ask the question again as regards these measures. Does he anticipate bringing forward the regulations on the same sort of time scale as the one he indicated earlier? Is there any prospect at least that draft regulations might be available to Members in the other place when they scrutinise the Bill? Does he expect that, as he said before, the majority of the regulations will be subject to the negative rather than the affirmative procedure? Will he draw the House’s attention to any exceptions, as he did last time, and point to those that will be subject to the affirmative procedure?

I am not going to urge the House to vote against any of the measures before us. I look forward to hearing the hon. Member for Reigate (Crispin Blunt) speak about his amendment. I have to tell the Minister that the House is being placed in a pretty unsatisfactory situation. I hope that even though we have not been able properly to scrutinise these measures because of the lack of information to support that scrutiny, he might encourage us by saying that those in the other place will have a better chance to do so.

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The Government’s commitment to the guidance guarantee has, of course, been well received by the industry and consumers, but widespread consumer ignorance of the pensions market is well documented. The Department’s own 2012 “Attitudes to Pensions” survey found that 49% had no knowledge of the requirement to annuitise.

[Richard Graham]

My hon. Friend is making some good points on an important issue, but does he agree that the providers and creators in financial companies have missed a trick over the years with regard to product innovation, and that they have depended too much on the monopoly of annuitisation, which has inhibited them—in effect, it has prevented them—from creating new products more suited to many of our constituents?

[Crispin Blunt]

My hon. Friend is absolutely right. That is the market in which Just Retirement and Partnership, as two smaller companies, identified the need for better, value-for-money products for individuals such as smokers and others with more limited life expectancy so that they could get greater annuity rates. They tried to promote those products in the market, but their problem was inertia in the market. People simply did not evaluate the options open to them and simply rolled over their pension pot provision in order to get an annuity from their existing provider, without looking at what was available in the rest of the market. What we are trying to do with the guidance—this is why I wholeheartedly support the reforms—is make sure that we create a much more active, liberal market whereby people are aware that they have choices to exercise and are able get the information in order to do so in an informed way.

[Richard Graham]

Some Opposition members of the Bill Committee raised concerns about guidance, but does my hon. Friend agree that the fundamental point of the changes that this Bill and the Treasury’s Taxation of Pensions Bill will introduce is recognition that annuitisation as was will undoubtedly lead to some scandals and mis-selling, which this Bill should put right and prevent in the future?

[Crispin Blunt]

That was the exact result of the paternalistic way in which we legislated to require annuities. Frankly, it led to market failure as a result of inertia in the market and people not exercising the choices available to them, because we seemed to be telling them precisely what they had to do. Now that we are liberalising the system and giving people the responsibility to manage the money they have saved, we obviously have to deal with the vexed issue of guidance to make sure that people make sensible decisions, by and large, but at least they should be informed decisions about the resources they have saved. These market reforms are founded on a belief in consumer empowerment, but without the effective implementation of the guidance guarantee, they may fail. That is why the guidance guarantee is so important.

We have already heard about the detail of and debated the need for a second line of defence, in that the Financial Conduct Authority must protect the estimated 8% to 96% of people—rather a wide estimate—who might not take up the guidance. That, however, is not the purpose of amendment 73.

The industry and consumers need the Treasury to take a lead and confirm the contents of the guidance. Why the Treasury continues to maintain its conspiracy of silence is a mystery to me. It is of some concern that four and a half months before the start date, the FCA, Citizens Advice, the Pensions Advisory Service and providers have no concrete clue about exactly what the guidance will entail, including whether it will consider sources of income that are alternatives to defined contribution pension schemes.

Dominic Lindley, an author and consultant at Which?, gave evidence in Committee suggesting that as little as 4% of a saver’s wealth is tied up in defined- contribution schemes. The over-55s have an average of £271,000 invested in property, and it is natural that such assets should increasingly form a component of retirement income. The average amount lent through an equity release scheme jumped 12% to £67,000 last year, while defined contribution pension pots remain stagnant at £20,000 on average.

The Conservative party and I presume our allies—including the right hon. Member for Sutton and Cheam (Paul Burstow), who supports my amendment 73—have always believed in the value of property ownership, and the Government must reflect that in their pensions policy. That is why we must recognise that equity release will be a critical part of future retirement provision. When we appreciate that £1.4 trillion-worth of property assets are held by older people, that puts into perspective the scale of the assets that have the potential to give older people a more comfortable retirement, if they can properly access them.

In Committee, the Minister said that he anticipated—he repeated this in an intervention—that the information that consumers would be encouraged to gather in a standardised format before they received the guidance would include state pension rights and assets such as housing equity. He also remarked that the more they put into the guidance session, the more they would get out of it.

The Equity Release Council is pleased by the recognition that assets other than defined contribution pension savings should be taken into consideration. However, that has not been explicitly stated in the Bill, and so far it relates only to the initial phone call to set up the guidance session. I support the Equity Release Council’s wish for the Government explicitly to recognise that housing wealth represents a significant source of potential retirement income, and for that to be considered during the delivery of pensions guidance.

I will therefore listen very carefully to the Minister before I invite the massed ranks of Opposition Members and, I hope, Government Members to support my amendment 73. I am reasonably hopeful that the Minister will give me a satisfactory response.

[Crispin Blunt]

I am trying to suggest what is in the amendment:

“Individuals delivering the pensions guidance must ask those receiving the guidance about other potential sources of retirement income in addition to defined contribution pension schemes; this must include an assessment of assets such as housing wealth, savings and investments.”

It is not meant to be prescriptive, but if someone has a tiny portfolio as their defined contribution scheme, relative to their whole portfolio, why are they not directed to their major asset, which is likely to be their house? What consideration might they give to using that asset to make their retirement more comfortable than it would otherwise be?

Pension reform seeks to give people sensible access to their assets, and for them to make sensible decisions. With equity release, for example, does it make sense to sell and downsize and give the estate agent a whack of money while being forced to move in order to release assets, or rather to stay in the house and release assets through an equity release scheme?

[Richard Graham]

It is an interesting point, and I am sure my hon. Friend would agree that the difficulty in the wording is because it is up to the individual to explain their circumstances and list their own assets, if indeed they have any. The vast majority of my constituents—and, I suspect, those of many other Members—have little in the way of assets, other than what they have been encouraged or able to save through their pension.

[Crispin Blunt]

Everybody’s position will be different. There will be people with small pensions sitting in quite large houses, and they will have limited income but a significant capital asset. When they receive advice on pension provision on retirement, what is their plan to be? We must try to get such people into the best possible place and to make sensible decisions about their future. It is not only the Equity Release Council saying that.