The recent case of West Worthing PO Ltd v Pensions Regulator is an example of the hurdles employers can face when attempting to overturn penalties issued by the Pensions Regulator (TPR), especially when it is claimed that notices have not been received.

Presumption of service

In law, there is a presumption that, if a notice has been sent, it has been received. Successfully challenging this presumption is where West Worthing PO Ltd fell short on this occasion.

Case summary

In this case, TPR issued a compliance notice to West Worthing PO Ltd on 25 October 2023 requiring them to file a re-declaration of compliance. When the company failed to comply, TPR issued a fixed penalty notice on 20 December 2023 and later an escalating penalty notice on 19 January 2023.

West Worthing PO Ltd (which ironically ran the local post office) claimed they had not received any notices until 1 March 2024 due to postal delays and provided a letter from Royal Mail which acknowledged delivery issues.

However, during evidence it became apparent that West Worthing PO Ltd had made phone calls to TPR on 27 and 28 February 2023 and on 28 February 2023 they completed the re-declaration of compliance.

Tribunal findings

Having considered the evidence before them, the Tribunal upheld the penalty notices. Due to the inconsistencies over the date West Worthing PO Ltd claimed they had knowledge of the penalty notices, the Tribunal had difficulties accepting their evidence. 

The Tribunal took into account that TPR had sent 9 letters between January 2023 and 28 February 2024 and whilst the evidence from Royal Mail was that there were issues with post around February/March 2023, this did not account for any postal issues during the period when the initial compliance notice was sent or in January 2023.

The Tribunal concluded that no evidence had been provided that could rebut the presumption of service and therefore accepted that they were duly received. 

Key takeaways

This case illustrates the difficulty of proving a negative—specifically, that penalty notices were not received. The Tribunal emphasised that any evidence to rebut the presumption of service must be both clear and compelling.

Recommendations for employers

If you receive a penalty notice from TPR, taking swift action is crucial. We recommend:

1. Contact TPR immediately and address compliance issues.
2. Confirm that TPR has the correct address on file to avoid future complications.
3. Investigate postal issues. Document any disruptions in internal or external postal systems. Obtain statements from those involved to support your case.
4. Request a review of the penalty notices. Whilst there is a 28-day deadline for requesting a review, TPR can also initiate a review on its own.
5. Prepare for an appeal. If the review is unsuccessful, submit a well-prepared appeal to the Tribunal.
6. Ensure Consistency. Maintain a coherent narrative in all communications with TPR and during the review and/or appeal process.

How we can help

We have extensive experience assisting employers in successfully challenging TPR penalty notices. Our support includes:

• Identifying grounds for review or appeal and assessing your chances of success.
• Drafting review requests to TPR or further requests for review as needed.
• Tribunal Representation. Preparing appeals and representing you throughout the Tribunal process.

For help with challenging penalties, contact Lauren Broderick or Doug Mullen.