Section 9 Power to modify scheme to allow for payment of surplus to employerI1

In the Pensions Act 1995, before section 37 insert—

“Power to modify scheme in relation to payment of surplus to employer

36B

(1)

​The trustees of a trust scheme may by resolution modify the scheme in accordance with subsection (2) or (3).

(2)

Where no power is conferred on any person to make payments to the employer out of funds held for the purposes of the scheme, the resolution may confer a power to do so on the trustees, subject to any restrictions specified in the resolution.

(3)

Where a power is exercisable by the trustees (whether or not by virtue of subsection (2)) to make payments to the employer out of funds held for the purposes of the scheme, the resolution may remove or relax any restriction imposed by the scheme on the exercise of the power.

(4)

This section does not apply to a scheme that is being wound up.

(5)

Any power to distribute assets to the employer on a winding up is to be disregarded for the purposes of subsections (2) and (3); and a resolution under subsection (2) may not confer such a power.

(6)

The reference in subsection (3) to a restriction imposed by the scheme includes a restriction imposed by virtue of a resolution under section 251 of the Pensions Act 2004 (which was repealed by section 9(2) of the Pension Schemes Act 2026) or this section.

(7)

Regulations may provide that this section does not apply, or applies with prescribed modifications, in prescribed circumstances or to schemes of a prescribed description.

(8)

See also section 37 (which limits the circumstances in which a power to make payments of surplus may be exercised).”

In the Pensions Act 2004, omit section 251 (old resolution procedure in relation to payments of surplus).

Subsection (2) does not affect the validity of a resolution passed under the section it repeals.