Government tables amendments to address Virgin Media fallout

In June, we reported on the Government's intention to legislate in response to the judgment handed down in Virgin Media Limited v NTL Pension Trustees II Limited [EWCA Civ 843]. On 1 September 2025 the government tabled amendments to the draft Pension Schemes Bill (the Bill) setting out how trustees can retrospectively validate historic amendments that would otherwise have been deemed void following Virgin Media.

The Virgin Media decision confirmed a High Court decision that historic amendments to contracted-out benefits made without written actuarial confirmation would be deemed void. This resulted in a great deal of market uncertainty as many schemes hold incomplete historic records which led to confusion as to whether actuarial confirmations had been obtained for relevant amendments. This raised concerns that long-standing benefit structures might not be legally effective – in turn this could impact benefits depending on the nature of the void amendment.

Following industry pressure, on 5 June 2025, the Government confirmed that amendments to the Bill would be tabled to allow affected schemes to retrospectively obtain written actuarial confirmation that historic benefit changes met the necessary standards at the time.

How this will work in practice

Under the proposed amendments to the Bill, for ongoing schemes where the is a "potentially remediable alteration", trustees can make a request to the current scheme actuary in writing for the actuary to consider whether or not, on the assumption that the amendment was validly made, the amendment met the statutory test (i.e. whether a s.37 confirmation could have been provided at the time the amended was made).  An actuary can then confirm that if, in their reasonable opinion, the amendment met the statutory test.  If an actuary receives such a request, they may take any professional approach that is open to the actuary in the circumstances of the case and may act on the basis of the information available to them as long as the actuary considers it sufficient for the purpose of forming an opinion on the subject matter of the request.  These steps can be taken now and so before the section comes into force.

Schemes that have already been wound up or have entered the Pension Protection Fund/Financial Assistance Scheme, are to have amendments treated as valid automatically. 

A "potentially remediable alteration" is one where (1) the amendment could not be made unless the relevant legislative requirements had been met – i.e. s.37 applies, (2) the amendment was treated by the trustees and managers of the scheme as if it was a valid alteration, (3) no positive action has been taken by the trustees or managers of the scheme on the basis that they consider the alteration to be void for non-compliance with s.37 and (4) it is not excluded from scope.

In relation to (3), 'positive action' means either (a) notifying members of the scheme in writing to the effect that the trustees or managers consider the alteration to be void or (b) taking any other step in relation to the administration of the scheme in consequence of the trustees or managers considering the alteration to be void which has the effect of altering payments to members.

In relation to (4), a "potentially remediable alteration" is excluded if the question of the validity of the amendment has been (a) determined by a court before the section came into force, (b) was an issue on or before 5 June 2025 in legal proceedings involving the trustees or managers of the scheme but has been settled before the section comes into force and (c) was in issue on or before 5 June 2025 in legal proceedings and remains in issue when the section comes into force.

What next?

The amendments to the Bill are a welcome development for schemes affected by the Virgin Media judgment. Whilst it will not resolve every case, the Bill should give trustees (and professional advisers) a way forward in circumstances that fall within the Bill to address any s.37 issues.