Out-Law Analysis 4 min. read
13 Jun 2023, 2:30 pm
It is becoming increasingly popular for trustees of larger pension schemes to obtain ‘residual risks’ insurance cover to protect them against the risk of future claims or disputes following a buy-out of the scheme.
This can be an attractive option for trustees in some cases, but there are risks of seeking residual risks cover that should be considered before the insurance is purchased.
As insurer pricing has continued to improve, more pension schemes are within touching distance of a full buy-out and wind-up. At this point, the priority for trustees and employers is to ensure a clean break – so that once the scheme is bought out, they are discharged of their duties and don’t need to worry about any future claims or disputes in relation to the benefits that have been secured.
One increasingly popular way of doing this for larger schemes is to take out additional insurance cover from the buy-out insurer, known as “residual risks” cover. If residual risks insurance is taken out, the insurer will accept liability for certain residual risks, such as:
The cost of this insurance is typically in the region of 1% of the bulk annuity premium.
When a scheme winds up, there are usually various layers of protection for trustees. These include exoneration and indemnity provisions in the trust deed, statutory notices to protect against missing beneficiaries, and legal principles such as the corporate veil – which provides comfort for directors of trustee companies.
Beyond this, trustees often take out some form of insurance protection. This is typically in the form of either residual risks insurance form the buy-out insurer, and/or “run-off” insurance from a general/professional indemnity insurer.
Run-off insurance protects trustees against liability discovered during a run-off period which arises from their negligence or an “honest” breach of trust. It will usually cover their legal costs of defending claims brought against them. Premiums tend to be lower than for residual risks cover.
Many trustees are comfortable relying on the protections described above, along with a run-off insurance policy. However, there are some limitations to typical run-off policies which trustees should be aware of. In particular, the cover tends to be limited. Typically, limitations include:
Residual risks cover can address these limitations.
An important difference between residual risks and run-off insurance is the level of due diligence the insurer will undertake. Run off insurers typically undertake some basic due diligence, asking the trustees to complete a questionnaire designed to flag certain key risks.
Residual risks insurers follow a more rigorous process. They will require all scheme documents – current and historic rules, merger deeds, booklets, announcements, minutes of trustee meetings, etc. – to be uploaded to a data site. They will then arrange for a team of lawyers to review these in detail and flag any material risk areas or areas of uncertainty.
If material risk issues are discovered which the insurer cannot price with confidence, these are likely to be excluded from the cover and the risk will remain with the trustees or the sponsor. Usual suspects are issues arising from Barber equalisation, changes to pension increases and scheme closure/severance of the final salary link, but this is not an exhaustive list.
If there are significant exclusions, then the residual risks premium may begin to look expensive relative to the scope of the cover. If material issues emerge, this could also impact on project plans and timelines for completing a buy-out, whilst these points are being resolved.
Also, once these issues have been identified, trustees wishing to purchase additional or separate cover from a run-off insurer may need to disclose those issues to that insurer too, which may give rise to exclusions under a run-off policy that would not otherwise have been required.
Residual risks insurance can be an attractive option for trustees as it addresses a number of limitations often encountered in the run-off insurance market. However, if material issues are identified in the due diligence phase, they may be excluded from the cover and will ultimately remain with the trustees and corporate sponsor after winding-up.
Different solutions will suit different schemes, depending on several factors including the risk appetite of the trustees and sponsor, the scheme's financial position and the trustee's confidence in the reputation, standing and capabilities of the insurer.
Trustees and sponsors should carefully consider the risks and benefits of the main insurance options with an authorised insurance broker and take legal advice on the other layers of protection on buy-out. They should do this at an early stage of the process, as a decision to purchase residual risks cover will affect the timescales and professional advice costs for the transaction.