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The Pensions Act 2004 provides additional protection for members of defined benefit occupational pension schemes. In doing so it establishes both a pensions regulator and a pensions protection fund. The new rules impose funding obligations on employers which, it was thought by the legislators, employers would attempt to evade.
The legislation therefore includes anti-avoidance provisions, the knock-on effects of which will (1) radically change the way in which companies are bought, sold, restructured and wound-up (whether insolvent or solvent) and (2) create complex dilemmas for pension fund trustees and their advisers.
The anti-avoidance provisions of sections [35 and 39] are intended to protect pension members' benefits, whilst ensuring that it blocks abuses whereby pension liabilities can be offloaded onto the Pension Protection Fund. The provisions however may lead to unintended consequences for some businesses in the same group of companies, in situations where no abuse has taken place, for example:-