A party seeking to restrict another's commercial activities must consider whether such terms are normal in similar, factual and contractual circumstances.
The last couple of weeks have seen Bromford, Clarion and now Southern Housing Group announce that they are leaving SHPS and moving their liabilities to stand-alone schemes in order to give themselves more control over their defined benefit pension costs amid Carillion's collapse into insolvency. With about £990 million of Carillion’s £1.5 billion debt being pension deficits, managing pension deficits will have no doubt been bumped up the agenda recently. So what should associations be doing?
Radian was the first association to leave SHPS in 2013, followed by Genesis and Sanctuary in 2016. There have also been indications that there are others who are planning to leave in the next year or so. So will the trickle become a flood and is it something that all employers in SHPS should seriously consider? Given that SHPS is a “last-man-standing” scheme, will this become a game of musical chairs that no one wants to win?
While no doubt every association would like to have more control over their pension deficit and contributions, transferring out of SHPS will not be suitable for every housing association. Participating in a multi-employer scheme means that the costs of administering the scheme are shared but in a stand-alone scheme these all fall on the one employer. Associations will, therefore, want to be satisfied that the benefits of transferring outweigh the costs of transferring and the increased administration costs.
With about 460 associations participating in SHPS, we don’t expect that a sudden rush for the exit will mean that the last unfortunate employer is left holding a very expensive “parcel” any time soon. Associations who decide to stay should also be reassured that associations who leave have to pay their share of the “orphan liabilities” (unpaid liabilities belonging to participating employers that no longer participate – usually due to insolvency). At the last valuation, these orphan liabilities amounted to 1.2% of the total scheme liabilities.
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