Earo Estates Ltd v The Pensions Regulator

1. The appeal is dismissed.

2. The Fixed Penalty Notice (“FPN”) dated 23 July 2025 in the sum of £400 issued under section 40 Pensions Act 2008 (“PA”) is confirmed.

3. No order for costs (no application having been made). REASONS Introduction:

4. This is an appeal against a Fixed Penalty Notice (“FPN”) issued by the Respondent following the Appellant’s failure to comply with a Compliance Notice dated 27 May 2025 requiring it to complete and submit its re-declaration of compliance by 7 July 2025.

5. The Appellant argues it made repeated attempts to complete the re-declaration online but encountered technical obstacles (including an “error 07”), endured lengthy telephone waiting times, and did ultimately complete the process on 13 August 2025. The Respondent submits the statutory pre-conditions for the FPN were met; the Appellant had the tools and opportunity to comply (including the correct “letter code” and alternative filing channels by post/telephone) and did not do so by the deadline.

6. I determine this appeal on the papers, the hearing bundle, including the parties’ pleadings and correspondence, the statutory notices (warning letter 9 May 2025; Compliance Notice 27 May 2025; FPN 23 July 2025), including the material witness statement of Mr David Hart dated 27 November 2025 (Product Owner for the Respondent’s Declaration of Compliance Portal), with exhibit DH1 (portal access history) together with the oral submissions made by or on behalf of the respective parties at the hearing held on the GRC CVP at 11.30 am on 5 January 2026. Issues:

7. The Tribunal has identified in particular the following issues: i) Service and validity of the Compliance Notice and FPN. ii) Whether or not the Appellant failed to comply with the Compliance Notice by 7 July 2025. iii) Whether or not any reasonable excuse or other ground is made out such that the FPN should not be confirmed (including the Appellant’s reliance on alleged technical impediments). iv) Proportionality: whether, in all the circumstances, issuing and maintaining the fixed penalty is fair, reasonable, and proportionate. The Law:

8. The Respondent’s statutory objectives include securing compliance with employer automatic enrolment duties: Pensions Act 2004 , s.5 . It may issue enforcement notices where it believes there has been a contravention of those duties.

9. Employers must give prescribed information to the Respondents—commonly referred to as the (re-) declaration of compliance—within the prescribed time: Pensions Act 2008 , s.11 ; Employers’ Duties (Registration and Compliance) Regulations 2010 (SI 2010/5) (“the 2010 Regulations”), reg. 4(1) (deadline: five months after the third anniversary of the duties start date).

10. If the Respondents believe there is a contravention of an employer’s duty, it may issue a Compliance Notice: PA 2008 , s.35 . Where an employer fails to comply with a Compliance Notice by the specified date, the Respondent may issue a FPN in the fixed sum of £400: PA 2008, s.40 . Continued non-compliance may lead to an Escalating Penalty Notice: PA 2008, s.41.

11. Service: Where notices are addressed to a company’s registered/principal office and posted, service is presumed under Interpretation Act 1978 , s.7 , applied via Pensions Act 2004 , s.303(6) (a); and 2010 Regulations, reg. 15(4) (rebuttable presumptions of posting, issue and receipt).

12. The Tribunal determines the appeal on the balance of probabilities, and may confirm, vary or revoke the FPN. The statutory regime imposes an overriding, continuing duty on the employer to comply with automatic enrolment obligations and to report compliance by the deadline; the re-declaration is a core compliance mechanism and not an administrative formality. Factual Background (not in serious dispute):

13. The Appellant’s re-declaration deadline under the Regulations was 30 April 2025. TPR sent a warning letter on 9 May 2025 (Annex C), then issued a Compliance Notice on 27 May 2025 (Annex B) directing completion of the re-declaration by 7 July 2025 and explaining how to file online and—importantly—how to file by post or by telephone if online filing was not possible (Annex B, p.32). TPR attempted a reminder call on 11 June 2025 (Annex D). The Appellant did not submit the re-declaration by 7 July 2025.

14. TPR issued the FPN on 23 July 2025 (Annex A). On 1 August 2025 TPR’s review varied the FPN by extending the compliance date to 28 August 2025 but upheld the £400 penalty (Annex F).

15. On 13 August 2025 the Appellant telephoned the Respondent. The call (partly recorded) culminated in the Appellant being given the letter code and gaining access to the portal. The next day the Respondent issued an acknowledgement email (Annex J). the Respondent maintains that acknowledgement related to a historic original declaration (from 2022) rather than the 2025 re-declaration that was the subject of the Compliance Notice and FPN; in any event, any submission on 13/14 August would post-date the 7 July deadline in the Compliance Notice.

16. Mr Hart’s witness statement (27 November 2025) explains that the “error ref. 07” occurs where an agent seeks to add an employer without its letter code in circumstances where TPR’s systems contain more than one employer record for the business (often arising from multiple PAYE schemes). In that instance, the AORN/PAYE combination is not unique, and the letter code—which is unique—is required to proceed (WS §§5(c)–(d)). His exhibit DH1 provides material evidence of 111 log-ins to the portal by the Appellant’s account between 1 December 2024 and 28 September 2025 (Witness Statement §6; DH1). The Parties’ Submissions (in brief): Appellant

17. The Appellant submits it was technically prevented from filing online due to persistent system errors after entering PAYE and AORN details (screenshot at Annex H/K). It says it followed the route the portal presented (“letter code or AORN”), and that the Respondent’s response was misleading in implying the letter code was the only route. It relied on long call waiting times and said the process was ultimately completed on 13 August 2025, as shown by the Respondent’s acknowledgement on 14 August 2025 (Annex J). It contends the penalty is unfair and disproportionate in those circumstances. Respondent

18. The Respondent submits the notices were duly served at the Appellant’s registered office; receipt is not disputed. The Appellant did not comply by 7 July 2025, notwithstanding multiple prompts, and did not contact the Respondent for assistance before the deadline. The error 07 was not a “system fault” but a known scenario where multiple employer records/PAYE schemes exist; in such cases the letter code (provided on the warning letter, Compliance Notice and FPN) is required. The Compliance Notice also expressly offered postal and telephone filing as alternatives if online filing proved problematic. The Respondent says the 14 August emails relate to a different, historic declaration and not the 2025 re-declaration. In any event, a late submission would not cure the failure to comply by 7 July for the purposes of s.40 . Discussion and Findings: (1) Service and validity

19. The Compliance Notice (27 May 2025) and FPN (23 July 2025) were addressed to the Appellant’s registered office at 4 Melton Road, Manchester, M8 4HG (see Annexes B & A). Service is presumed under Interpretation Act 1978 , s.7 , as applied by Pensions Act 2004 , s.303(6) (a) and 2010 Regulations, reg. 15(4). The Appellant does not dispute receipt. The notices were validly served and are effective. (2) Failure to comply with the Compliance Notice by 7 July 2025

20. On the evidence before the Tribunal, the Appellant did not submit the re-declaration by 7 July 2025. That is the only date that matters for the validity of the s.40 FPN: it is triggered by failure to comply with the Compliance Notice by its deadline. Whether something was later submitted in mid-August is not determinative of liability under s.40 (though it may bear on proportionality and future enforcement). (3) Reasonable excuse / technical impediment

21. I accept Mr Hart’s detailed explanation that error ref. 07 arises when an agent attempts to add an employer in circumstances where the PAYE/AORN combination is not unique due to multiple employer records in TPR’s system, and that in those cases the letter code is necessary to proceed (WS §§5(c)–(d)). I find as fact that on the balance of probabilities this is what happened here.

22. It seems the Appellant had the letter code on each of the Respondents communications (warning letter 9 May 2025, Compliance Notice 27 May 2025, FPN 23 July 2025: see Annexes C, B, A). The Appellant could therefore have used the letter code to proceed online. Further, the Compliance Notice expressly stated that, if online filing was not possible, the Appellant could submit the re-declaration in writing to TPR’s Wymondham address or complete it by telephone (Annex B, p.32). The Appellant did not avail itself of those alternative routes before the 7 July deadline.

23. I accept that the Appellant later spent time on the telephone (a call of approximately 34 minutes on 13 August 2025). However, the Appellant had from 9 May (warning letter) and 27 May (Compliance Notice) until 7 July to call or to submit by post if online issues persisted. On the balance of probabilities, any waiting-time inconvenience does not amount to a reasonable excuse for failing to comply by the deadline in a regime where the employer bears an overriding, continuing duty to ensure compliance and where multiple, clear routes to compliance were available.

24. I therefore find that the Appellant’s non-compliance was due, not to a defect in the Respondent’s systems, but to a failure to deploy the tools available and provided (the letter code and the alternative filing channels) in time. Mr Hart’s evidence is consistent with the portal design and with the Appellant’s own screenshot, which shows the pathway that ultimately requires a letter code where multiple employer records exist (cf. Annex K). I place significant weight on Mr Hart’s technical explanation and the login history in DH1 (111 log-ins between Dec 2024 and Sept 2025), which demonstrates regular access to the portal and opportunities to resolve the issue in good time. Proportionality:

25. The fixed nature of the s.40 penalty reflects Parliament’s judgment that timely compliance with the re-declaration duty is essential to the effective operation of the automatic enrolment regime. The Appellant was warned on 9 May 2025, directed by Compliance Notice on 27 May 2025 to comply by 7 July 2025, and thereafter issued with an FPN on 23 July 2025. On review, TPR varied the FPN to extend the final compliance date to 28 August 2025 to facilitate late compliance (Annex F).

26. Standing back, the Respondent’s enforcement steps were graduated and measured: written warning, Compliance Notice with clear alternative filing routes, a reminder call, the FPN, and notably a review with extended time. In that context, confirmation of the fixed £400 penalty is fair, reasonable and proportionate. As I explained at the hearing the Appellant’s difficulties do not displace the overriding duty to comply by the date in the Compliance Notice, nor do they justify my setting aside a penalty that flows directly from missing that deadline. Conclusion:

27. The statutory pre-conditions for the FPN were met. The notices were validly served. The Appellant failed to comply with the Compliance Notice by 7 July 2025. The Appellant has not established any material ground which would warrant allowing the appeal. The appeal is therefore dismissed and the FPN is confirmed.

28. If any consequential application (including costs under rule 10 of the GRC Rules) is to be made, it must be filed within 14 days of the date this decision is sent to the parties Appendix: Statutory Provisions Cited • Pensions Act 2004 : s.5 (TPR objectives); s.303(6) (a) (service). • Pensions Act 2008 : s.11 (duty to provide information – re-declaration); s.35 (Compliance Notice); s.40 (Fixed Penalty Notice – £400); s.41 (Escalating Penalty). • Employers’ Duties (Registration and Compliance) Regulations 2010 (SI 2010/5): reg. 4(1) (re-declaration deadlines), reg. 15(4) (presumptions of service). • Interpretation Act 1978 , s.7 (presumption of postal service). Tribunal Judge: Brian Kennedy KC Date: 05 January 2026. Note: References to annexes and documents are to the hearing bundle, including the warning letter (Annex C), Compliance Notice (Annex B), FPN (Annex A), review decision (Annex F), acknowledgement emails (Annex J), the Appellant’s screenshot (Annex H/K), and the witness statement of Mr David Hart (27 November 2025) with exhibit DH1.