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Learning from the BHS pensions debacle

Neil Hodge | July 25, 2017

Corporate tycoons and their disregard for company pension schemes is a touchy subject in the United Kingdom, particularly as none of the parties involved—the business owner, the regulator, the government, the auditors, and other professional advisers—come out of the ensuing scandal particularly well. However, it is the workforce that ultimately pays, while those at fault tend to dust themselves down and move on.

At the end of February, disgraced corporate tycoon Sir Philip Green agreed to pay £363m to plug some of the BHS pension shortfall caused by his poor stewardship of the company and its subsequent fire sale to thrice-bankrupt retail novice Dominic Chappell. The settlement put an end to the United Kingdom’s Pensions Regulator’s legal action against Green that it started last year.

The pension deficit of the department store chain was assessed to be £571m after its collapse last April, so Sir Philip got a £208m discount, while 11,000 people lost their jobs and 19,000 saw their company pension benefits cut by 12 percent. Worse still, the Pensions Regulator was aware of the dangers but failed to act to properly protect employees’ money.

In May 2016 Richard Fuller, Conservative MP for Bedford, criticised the regulator for the way in which it reacted to the BHS pension deficit. “The fund had a £200m deficit and growing, which you didn’t think required a ‘proactive response.’ And when you go after someone who has a fund that doesn’t have enough money in it, your first question is ‘how much can you afford?’ You are not much of a regulator, are you?”

In response, the regulator’s CEO Lesley Titcomb, told Members of Parliament that “we have as a regulator got to operate within the framework provided to us.”

That said, on 27 June the Pensions Regulator published a “regulatory intervention report” into its involvement with the BHS pension scheme and its settlement with Sir Philip. It afforded the regulator the opportunity to tell its side of the story, give a fuller explanation as to what went wrong, apologise, and say how the situation could not be repeated. However, some of this content appears to be missing.

“The main purpose of the sale [of BHS] was to postpone BHS’ insolvency to prevent a liability to the schemes falling due while it was part of the Taveta group of companies ultimately owned by the Green family, and/or that the effect of the sale was materially detrimental to the schemes,” the regulator’s report says. Translation: Green sold the BHS business to dodge responsibility for its insolvent pension schemes if the firm should go bust.

And for the first time, the report also gives some details of the warning notice that the regulator gave to Sir Philip in November last year as negotiations over resolving the BHS pension scheme deficits dragged on. Furthermore, the report shows how, in parallel with its investigation, the regulator held extensive discussions with Sir Philip and his advisers to reach a settlement.

Titcomb said the purpose of publishing such reports is to be “as transparent as we can be about our regulatory work.” She wants to reassure the public that the regulator will use its powers to protect savers—but that it will also be prepared to be “flexible” in its approach “to reach the right outcome.”

The report has a section optimistically titled “Doing things differently,” as the regulator is—by its own account—“committed to continuous improvement.” Key areas where it says it could have performed better include the timeliness of its engagement and the clarity of its communications. In particular, the regulator says that it recognises “the importance of setting out clearly and robustly our expectations to pension trustees and sponsoring employers in cases where the affordability of deficit repair contributions is an issue for the employer.” Consequently, it has reduced the time it takes to wrap up cases.

The regulator also says that it “has taken steps” to secure additional funding from the Department for Work and Pensions (DWP) to hire more staff, undertake higher volumes of casework more quickly, be more proactive so that it can achieve better outcomes earlier, and make greater use of its investigatory and enforcement powers—particularly when companies try to avoid their responsibilities. It is also committed to reviewing its internal processes and to working more efficiently and effectively.

This all sounds very promising. But regulators are only as strong as their willingness to use their enforcement powers properly—and in the case of the BHS pension scheme, such an appetite was sorely lacking.

If the report was meant to assuage criticism or mollify those employees burnt by its lack of activity—dream on. The regulator has not owned up to, or apologised for, its appalling inactivity. And the corrective actions it puts forward to improve its future conduct are dependent on the benevolence of a government that has been committed to reducing public spending for the past seven years, not increasing it.

And if the report was meant to put the frighteners on negligent, or even corrupt, businessmen, then it is another misfire. Green is still a director, has not been criminally prosecuted (and is unlikely to face a courtroom), has saved himself £208m, and has retained his precious knighthood for “doing the right thing.” There may be no outright winner in this whole sorry affair, but deciding which party is the bigger loser is easier to determine.