Author: Azizur Rahman
7 April 2015
3 min read
To great fanfare, the government announced in 2014 that reforms would come into effect giving us all greater freedom on what we do with our pension pots.
Pessimistic voices predicted chaos; claiming that pension providers would struggle to deal with the reforms. Others warned that pension holders could be easy targets for those looking to get their hands on people’s pension pots by illegal means. Many in the industry asked for a major publicity drive to make sure anyone affected by the reforms is aware of them. Critics of the reforms argued that the changes are rushed and an attempt to win votes without any consideration of the long-term consequences.
The reforms meant that anyone aged 55 and over could have access to all of their pension pot. They no longer had the obligation to buy an annuity.
There were soon reports of pension holders being cold-called and encouraged to cash in their pension plans early or transfer them to risky offshore investment schemes. Persuasive talk of free pension reviews, early access to cash and schemes promising high returns became common. Pension group Phoenix was soon stating that, since the announcement of the reforms, it had prevented more than a thousand savers losing £22million to what it believes was attempted pension fraud.
Some pension experts accused the government of being complacent when it comes to people’s vulnerability to fraud under the reforms. Prior to these reforms, anyone looking to gain from pension fraud had to create a fake pension scheme. From April 2015, they have had to be far less elaborate in their attempts to part people from their cash. It may seem unfair but it is up to those in the pension industry to protect their customers from such predators.
For some in the industry this may seem as if an extra responsibility has been added to their already busy schedule. It may even seem tempting to simply go about the work without paying any extra attention to the potential for fraud. After all, if it is not the independent financial adviser (IFA) or pension broker perpetrating the fraud, surely they cannot be blamed for it. It would be an interesting argument — and one that would carry some merit — if it wasn’t for the fact that the Financial Conduct Authority has set out its stall in a way that expects much from IFA’s and pension brokers. Since its creation in 2013, it has laid down standards and principles for pensions selling. At the same time, the Pensions Regulator seems especially keen to make sure sufficient regulation exists in the industry and that any risks associated with pension products are fully highlighted to would-be buyers. To put it bluntly, anyone who sells a pension product that turns out to be fraudulent or who advises a client who subsequently loses their money to fraud will have an awful lot of explaining to do to the authorities.
The question that has to be asked, therefore, is what precautions can those involved in pensions take to make sure they are not left with defrauded clients and a lot of explaining to do? The simplest answer is “Do your homework.’’ If a client is being advised to make a potential investment, the person giving that advice has to be 100% sure in themselves that it is a safe step to take — and if there are any apparent risks then these have to be made explicitly clear to the client.
If the 2014 trial in relation to Operation Cactus Hent indicated anything, it was that it is up to IFA’s and pensions advisers to make sure they are not involving themselves or their clients in any form of wrongdoing; whether wittingly or unwittingly. The case centred on pension fraud and the way that pensions can be targets for tax fraud. It failed to secure any convictions. But it is fair to say that the IFA’s who were in the dock would now be the strongest advocates of checking any pensions proposals as thoroughly as possible — both for their and their client’s sake.
The authorities are keener than ever to crack down on fraud and cases that may have resulted in a civil law resolution a few years ago are now being treated as criminal matters. In fairness to them, the authorities are providing assistance for IFA’s and pension providers and administrators. The Pensions Regulator, for example, drafted advice for those in the pensions industry as well as literature for the public warning of the most common type of pension fraud. But what of the fraud that is more subtle or unique? The type that has not yet been highlighted in publicity? Just as boiler room-type frauds have become increasingly sophisticated over the years, there is no reason to believe the same will not happen with pension fraud.
If this is the case, the onus is still on those advising members of the public — the pensions professionals will be the ones who have to explain why and how they allowed a client to lose their funds to a fraud. This may seem harsh and the professional who falls foul of such a fraud may argue that they took all reasonable precautions. But at this stage, the issue is one of damage limitation. Anyone in such a situation will need appropriate legal advice from experts: experts who can rebut prosecution claims of negligence or even dishonesty by proving that the accused acted appropriately and took all possible precautions and has a professional history of integrity and honesty.
The pensions industry underwent a mini revolution in 2015. It is still important that the professionals in the industry make sure that they and their clients do not become the victims of change.
Aziz Rahman is Senior Partner at Rahman Ravelli and its founder. His ability to coordinate national, international and multi-agency defences has led to success in some of the most significant corporate crime cases of this century and top rankings in international legal guides. He is recognised worldwide as one of the most capable legal experts regarding top-level, high-value commercial and financial disputes.