Nest · CAS-102293-G9D3

CAS-102293-G9D3

Ombudsman’s Determination Applicant Mr S

Scheme NEST (the Scheme)

Respondent Digital Express Limited (the Employer)

Outcome

Complaint summary

Background information, including submissions from the parties

In March 2016, Mr S began his employment with the Employer.

In March 2017, Mr S was enrolled into the Scheme.

Between July 2020 and September 2022, the Employer failed to pay all pension contributions into the Scheme.

In September 2022, Mr S ceased employment with the Employer after he was made redundant.

On 6 March 2023, Mr S brought his complaint to The Pensions Ombudsman (TPO).

1 CAS-102293-G9D3 Mr S was unable to provide payslips for the period July 2020 to September 2022 because the Employer failed to provide them.

The Scheme administrator confirmed to TPO that under the automatic enrolment regulations for the tax year beginning 6 April 2019 onwards, the minimum employee contribution was 5% (including tax relief) of qualifying earnings and the minimum employer contribution was 3% of qualifying earnings.

Mr S has provided screenshots of his bank statements between July 2020 and September 2022 which showed his pay from the Employer.

Mr S has also provided screenshots of his HMRC PAYE account which showed his taxable earnings in the tax years ending: -

• 5 April 2020

• 5 April 2021

• 5 April 2022

• 5 April 2023

On 12 July 2024, TPO asked the Employer for its formal response to Mr S’ complaint.

2 CAS-102293-G9D3 Adjudicator’s Opinion Mr S’ complaint was considered by one of our Adjudicators who concluded that further action was required by the Employer as it had failed to remit the contributions that were due to the Scheme. The Adjudicator’s findings are summarised below:-

• The Adjudicator stated that TPO’s normal approach, in cases such as these, was to seek agreement from all parties on the facts of the complaint, including the dates and amounts of contributions involved. He said that, as the Employer had not responded to any of TPO’s communications, he had to base his Opinion solely on the information provided by Mr S and the Scheme administrator.

• Mr S was unable to provide payslips for the tax years ending 5 April 2020, 5 April 2021, 5 April 2022, and 5 April 2023. However, he provided bank statements which showed his pay from the Employer during those tax years. Mr S had also provided screenshots of his HMRC PAYE account for the tax years detailed above which showed his gross pay and qualifying earnings.

• The Appendix showed Mr S’ gross pay and qualifying earnings and the contributions which should have been due in each of the tax years. This was based on the statutory minimum of 3% employer contributions and 5% employee contributions. It also showed the employee and employer contributions that the Employer paid into Mr S’ Scheme account in each tax year as confirmed by the Scheme administrator.

• Based on the information provided by Mr S and the Scheme administrator, it was the Adjudicator’s view that on the balance of probabilities, £912.25 in employee contributions and £400.25 in employer contributions, a total of £1,312.50 had not been remitted to the Scheme. This was based on deducting the amount that the Employer had paid into the Scheme from the statutory minimum amount of 3% employer contributions and 5% employee contributions due to the Scheme in the relevant tax years.

• The Adjudicator said that he had no reason to doubt the information provided by Mr S and the Scheme administrator and, despite having been given the opportunity to do so, the Employer had provided no information to dispute the position. So, in the Adjudicator’s Opinion, on the balance of probabilities, contributions had been deducted from Mr S’ wages but had not all been paid into the Scheme. In addition, the Employer had not paid all of the employer contributions that were due over the same period. As a result of its maladministration, Mr S was not in the financial position he ought to be in.

• In the Adjudicator’s view, Mr S had suffered serious distress and inconvenience due to the Employer’s maladministration. The Adjudicator was of the opinion that an award of £1,000 for non-financial injustice was appropriate in the circumstances.

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Ombudsman’s Decision

Directions

(i) pay Mr S £1,000 for the serious distress and inconvenience he has experienced;

(ii) ’

;

(iii) establish with the Scheme administrator whether the late payment of contributions has meant that fewer units were purchased in Mr S’ Scheme account than he would have otherwise secured, had the contributions been paid on time; and

(iv) pay any reasonable administration fee should the Scheme administrator charge a fee for carrying out the above calculation.

Dominic Harris

Pensions Ombudsman 2 January 2025 4  CAS-102293-G9D3

Appendix Tax Gross Qualifying Total 8% Employee Employer Paid Paid Employer Year Earnings Earnings Contributions 5% 3% Employee contribution to Ending due Contributi Contributi Contributio NEST ons due ons due ns to NEST

05/04/20 £18,200.04 £12,064.04 £965.12 £603.20 £361.92 £692.62 £532.00

05/04/21 £18,200.04 £11,960.04 £956.80 £598.00 £358.80 £158.16 £118.62

05/04/22 £18,399.94 £12,159.94 £972.76 £607.99 £364.80 £46.16 £34.62

05/04/23 £1,415.38 None None None None None None

Totals £2,894.68 £1,809.19 £1,085.52 £896.94 £685.24

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