Regulation 9 Factors applicable to compensation determinationI1

England, Wales and Scotland

(1)

In making a compensation determination the valuer must have regard to—

(a)

the terms and conditions set out in the valuation documents;

(b)

any rights and liabilities which would transfer—

(i)

under the TUPE regulations as a direct result of the implementation of the transfer scheme; or

(ii)

as a result of provision made under Schedule 10;

(c)

to the extent that it is, in the valuer’s opinion, relevant to the value of the target business—

(i)

any obligation of the target company or the transferor under any enactment;

(ii)

the terms and conditions of a licence held by the target company or the transferor, and any direction, consent, determination or other instrument given by the GEMA or the Secretary of State in relation to such licence;

(iii)

any codes or agreements to which the target company or transferor is a party by virtue of a licence;

(iv)

any relevant price control of the target company or transferor;

(d)

any reports or information provided by the GEMA regarding the target company or transferor’s compliance with or performance under a licence, price control or an enactment;

(e)

the fact that the compensation determination is in relation only to the target business and therefore except to the extent provided for in the valuation documents, excludes and makes no provision for—

(i)

compensation for any loss or damage which is suffered by a member of the transferor’s group in consequence of anything done by the Secretary of State in preparation for or in connection with the designation of a person under section 162(1) of the Act to which the proposed transfer scheme that is the subject of the compensation determination relates;

(ii)

any amount which is in a category of costs or financial impact which category is recoverable through price control under any licence held by the transferor, the target business or any member of the transferor’s group;

(iii)

in particular, any amount falling within sub-paragraph (ii) which the relevant licensee has sought to recover and which the GEMA has disallowed or not approved as eligible for recovery;

(iv)

any amount which is a cost or expenditure recoverable pursuant to paragraphs 12(8) or 14(1) of Schedule 9;

(v)

in particular, any amount which the transferor, a member of the transferor’s group or the target business has sought to recover under paragraphs 12(8) or 14(1) of Schedule 9 and which the Secretary of State has declined to reimburse.

(2)

In making a compensation determination, the valuer must apply assumptions that—

(a)

the compensation determination reflects the transferor’s only entitlement to compensation pursuant to the transfer scheme;

(b)

the target business will continue to operate with none of the changes to the legal and regulatory regime under which it operates that would apply upon designation of the ISOP under section 162(1) of the Act.

(3)

The compensation determination may conclude that the compensation that the transferor is entitled to is higher or lower than or the same as the level set out in the valuation documents.

Annotations

Commencement

I1: Reg. 9 in force at 5.3.2024, see reg. 1(2) (as amended by S.I. 2024/134, reg. 2)