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Challenging enforcement action

  1. This section does not cover challenging decisions of external courts or tribunals or judicial review as those proceedings are subject to their own rules and procedures.

Regulatory decisions made by the Determination Panel

  1. A directly affected party can refer (challenge) any final determination that the Determinations Panel makes to the Upper Tribunal. Information on a directly affected party’s right to make such a reference, and the 28-day period allowed for this, is provided in the determination notice.
  2. If the Determinations Panel decides to use a power, in many cases we cannot use it until the 28-day reference period has expired, or if a reference is made, until that and any appeal process if concluded. There are a few instances where a power can be used immediately after a determination, for example, the appointment of an independent trustees.
  3. The Upper Tribunal may consider any available evidence that relates to the reference. This may include evidence that was not available to the Determinations Panel at the time of its original determination.
  4. The Upper Tribunal considers the matter afresh and decides what (if any) action should be taken in relation to the reference, which will include whether to confirm, revoke, vary or substitute the determination.
  5. For further information you can read the Tribunal Procedure (Upper Tribunal) Rules 2008 on GOV.UK.

Regulatory decisions under the staff determination procedure

  1. Whether or not directly affected parties have a right to challenge a decision made under the staff determinations procedure to the Upper Tribunal depends on which power has been used.
  2. In some instances, such as the appointment of an independent trustee or a decision to issue an improvement or third-party notice, the directly affected parties have the right to refer the matter to the Upper Tribunal.
  3. When a determination is issued, the directly affected parties are provided with details on the appropriate route to challenge the decision.

Other regulatory decisions

Fixed and escalating penalty notices for non-compliance with information gathering

  1. Where a fixed or escalating penalty notice has been issued, the notice recipient is entitled to ask us to review our decision within 28 days.
  2. Details on how to make a review application and the information required are issued with the penalty notice. The notice recipient may also submit additional documents in support of any representations they make in a review application.
  3. If a review application is accepted, we write to the applicant(s) to confirm the review has been accepted. We may also ask for additional information and appoint a review officer who has not previously been involved with the decision to issue the notice to carry out the review.
  4. If the request is made in time, the penalty notice is suspended for the length of time it takes us to complete the review.
  5. Although the notice recipient must apply for a review within 28 days from when the notice is first issued, we can carry out a review at any time up to 18 months after its issue, where appropriate. We may decide to do this when we receive new information that indicates a notice may need to be varied, substituted or revoked, but the notice recipient(s) is unable to request a review because 28 days have expired since the notice was first issued.
  6. We write to the applicant to inform them of the outcome of the review. The review officer’s decision is one of the following:
    • confirm – the notice is upheld, and if there is a fine it will still have to be paid
    • vary – the notice is changed, eg by extending the deadline for compliance or payment – the penalty amount will still be payable in that circumstance
    • revoke – the notice is overturned, and the fine does not have to be paid
    • substitute – the notice is replaced with a different one, which must then be complied with
  7. We may decide not to carry out a review, in which case we will advise the applicant(s) promptly in writing, setting out our reasons for refusing to carry out the review. This is likely to happen if:
    • we cannot identify which notice is the subject of the review application
    • the application was submitted outside of the 28-day period and the information available to us does not indicate that the notice needs to be revoked, varied or substituted
    • the grounds for review are not stated or have already been considered in a previous review
    • there is any other case where we do not consider it appropriate to carry out a review
  8. If dissatisfied with the outcome of a review or if we decide not to carry out a review of a penalty notice, the notice recipient can refer the matter to the tribunal in respect of either the issue of the notice or the amount of the penalty payable under the notice. We will supply details of the tribunal reference procedure to the notice recipient where this applies.
  9. A tribunal reference can only be made once we have completed a statutory review, or if we have informed an applicant that we have decided not to carry out a review.
  10. If a reference is made to the tribunal, the effect of the notice is suspended from when the tribunal receives notice of the reference until either the reference is withdrawn or completed or, if the reference is made out of time, on the tribunal determining not to allow the reference to proceed.

Compliance and penalty notices for breaches of Charges and Governance and Climate Change duties

  1. Where we issue a compliance or penalty notice under these provisions, the trustee or other notice recipient is entitled to request us to review our decision within 28 days.
  2. Details on how to make a review application and the information required are issued with the penalty notice. The notice recipient may also submit additional documents in support of any representations made in a review application. These might include records that demonstrate how they have complied with their duties.
  3. A review application may be made by the notice recipient. Where there is more than one notice recipient, any of them may ask for a review. The review application should make clear whether it is made on behalf of all notice recipients, or just on their own behalf.
  4. Where we receive a review application from only one or some of the notice recipients, we may consider it appropriate to notify the other notice recipients that we have received a review application and invite any additional representations. We may also consider it appropriate to share a summary of the representations received in the review application with the other notice recipients. In this case, we first notify the applicant(s) of our intention. These steps enable us to consider all representations about a notice in the round.
  5. If we accept a review application, we write to the applicant(s) to confirm the review has been accepted. We may also ask for additional information and appoint a review officer who has not previously been involved with the decision to issue the notice to carry out the review.
  6. If the request is made in time, the penalty notice is suspended for the length of time it takes to complete the review.
  7. Although a review request must be made by the notice recipient(s) within 28 days from when the notice was first issued, we can carry out a review of a notice at any time up to 18 months after its issue, where appropriate. We may decide to do this when we receive new information that indicates a notice may need to be varied, substituted or revoked, but the recipient(s) is unable to request a review because 28 days have expired since the notice was first issued.
  8. The outcome of the review is provided in writing to the person(s) who requested the review. The review officer’s decision is one of the following:
    • confirm – the notice is upheld, and if there is a fine it will still have to be paid
    • vary – the notice is changed, eg by extending the deadline for compliance or payment
    • revoke – the notice is overturned, and the fine does not have to be paid
    • substitute – the notice is replaced with a different one, which must then be complied with
  9. We may decide not to carry out a review, in which case we will advise the applicant(s) promptly in writing, setting out our reasons for refusing to conduct the review. This is likely to happen if:
    • we cannot identify which notice is the subject of the review application
    • the application was submitted outside of the 28-day period and the information available to us does not indicate that the notice needs to be revoked, varied or substituted
    • the grounds for review are not stated or have already been considered in a previous review
    • there is any other case where we do not consider it appropriate to conduct a review
  10. If dissatisfied with the outcome of a review, or if we decide not to carry out a review of a compliance or penalty notice, the trustee or other notice recipient can refer the matter to the tribunal in respect of either the issue of the penalty notice or the amount payable under the notice. We will supply details of the tribunal reference procedure to the notice recipient where this applies.
  11. A tribunal reference can only be made once we have completed a statutory review, or if we have informed an applicant that we have decided not to carry out a review.
  12. If a reference is made to the tribunal, the effect of the notice is suspended from when the tribunal receives notice of the reference until either the reference is withdrawn or completed or, if the reference is made out of time, on the tribunal determining not to allow the reference to proceed.
  13. The tribunal is responsible for issuing forms and guidance in respect of such references. You can read more on the tribunal on GOV.UK.
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