The Pensions Regulator

Code of practice 10
Modification of subsisting rights

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Making representations

41. Members must be given a reasonable opportunity to make representations to the trustees about the proposed modification.²³
42. The regulator would normally expect a period of at least four weeks to be allowed for the members to make such representations, although it is accepted that this will vary with the complexity of the amendments proposed and the number and location of the members.
43. Nevertheless, affected members should not be made to feel under pressure to come to a decision without adequate time and opportunity to make their views known to the trustees and to ask questions about the proposal.
44. The trustees should give due consideration to any representations received.
45. Sufficient time should be allowed by the trustees for:
    • advice to be obtained where necessary in relation to issues raised; and
    • discussions with employers to take place where it may be appropriate to amend a proposed modification in the light of representations received.

Giving consent

46. Where a member gives consent to a modification, it must be in writing²⁴. 'In writing' includes fax or email where both parties agree.
47. Where a member does not give consent to a modification then that member's subsisting rights must remain unchanged unless the actuarial equivalence route is also available. The member's consent cannot be deemed or assumed, and a lack of response cannot be taken as consent. If some members do not consent to a modification, the modification may only proceed under the consent route for those members that have consented.

The timing requirement

48. Where a modification is made with the consent of affected members, the modification must be implemented within a reasonable period after the affected members have given their consent.²⁵
49. The regulator would normally expect the reasonable period from consent to a modification coming into effect to be no more than seven months from the date consent is received from a member, accepting this may vary with the period allocated for representations and any legal or other issues around implementation.
50. When considering implementing a modification, the trustees must have regard to the trustees' approval requirement as set out in paragraphs 71 to 73, and to the reporting requirement as set out in paragraphs 74 to 77.

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