THE title of this piece is the question I am asked regularly by individuals who are threatened with personal insolvency and are (understandably) concerned their personal pension may be used to repay creditors.
Personal pensions used to be an asset that could be realised for the benefit of creditors. Provided the bankrupt was over the age of 50 years a trustee could realise the tax-free lump sum, the annuities or, in many cases, both. This all changed with the introduction of the Welfare Reform and Pensions Act 1999 (WRP) where personal pensions were primarily no longer bankruptcy assets.
What has been long debated is whether a pension ceases to be a pension and becomes income a person is entitled to when they exercise their right to draw down the pension benefits and, therefore fall outside the protective ring of the WRP.
A bankrupt has a statutory duty to cooperate with their trustee and may face serious consequences for failing to comply, including imprisonment. A trustee also has general powers to seek and overturn previous dealings. For example, back in the early 1990s many matrimonial homes were transferred into the sole name of the non-business owner for the consideration of “Love and affection’ and were, quite rightly, deemed void. These general duties and powers assist a trustee in his duty to maximise realisations for the creditors and the income derived from pension lump sums and annuities provide funds that assist repayment.
In the case of Raithatha v Williamson [2012] EWHC 909 these duties were tested when a trustee demanded the bankrupt exercise his rights to receive the benefits of his personal pension and the judge determined the pension benefits did fall within the definition of income. Bad news for pension holders who could, by way of this decision, be forced to “retire early’ when it came to their pension benefits.
However, on 7 October 2016 the Court of Appeal overturned the Williamson case. In the matter of Horton v Henry the judges decided uncrystallised pension rights did not constitute income and neither the court nor the trustee had power to decide how a bankrupt should exercise elections open to them in relation to their pensions.
This decision does appear to be contrary to the general powers and even promotes debt avoidance by pouring money into personal pensions. However, a trustee can challenge excessive pension contributions and, as I proved a few years ago, demonstrate the pension was merely a tool to defraud creditors. In that sort of scenario a trustee can obtain some (or all) of the pension benefits.
Assuming the Horton case will not be appealed to the Supreme Court the message appears clear. If you are over 50 years of age then unless you really need the pension benefits resist exercising your rights to receive them until you are discharged from bankruptcy. Alternatively, if in doubt you should consult an insolvency practitioner or a pension advisor as a lack of patience (in terms of when to exercise your rights) could prove costly for your future.
For more information, call Gary Pettit or Gavin Bates on 01604 212150 completely confidentially, email or visit www.pbcbusinessrecovery.co.uk for further information.