Con Keating says pre-pack administrations do not pose a moral hazard issue, and the problem is actually perverse incentives
Pre-pack resolutions of distressed companies have received an extremely bad press in recent weeks; morally righteous rent-a-pension-quote politicians and regulatory authorities have queued up to express their indignation at this 'moral hazard'.
There is a problem here. What we are seeing is not moral hazard; that is a term of art in the realm of insurance. It refers to the situation where, once insured, we may cease to show proper care in avoiding the incident covered by the insurance. For example, we may fail to check, as diligently as when uninsured, that all windows are closed and locked after we have taken out household contents cover. Policies contain a number of mechanisms to limit this possible increased risk exposure, such as a deductible. Moral hazard is seated purely in the behaviour of the insured.
Although the reductions in pensioner benefits imposed by the Pension Protection Fund (PPF) have often been presented in these moral hazard terms, they are not warranted as such. The member does not have control over the behaviour of the scheme, fund or sponsoring employer. The reductions in benefits are analogous to reducing the compensation awarded to the injured third-party in motor insurance; the little old grannie we ran down on the zebra crossing.
Pre-pack behaviour has similarly been described, incorrectly, as a problem of moral hazard; the issue here is actually one of incentives. The actions that offend with pre-pack resolutions is the award of senior or secured status (or both) to other debt obligations; in insolvency this may leave little, if anything, for general unsecured creditors after repayment of those debts.
It is worth noting that pension deficits are qualitatively different from other debts. Pension deficits arise from the accounting convention, while the other debts arise from the advance of funds, for operating or investment purposes. Deficits are inherently more nebulous than ordinary debts.
The perverse incentive is rooted in the section 75 valuation, which is the estimated cost of full buyout. This determines the amount of the scheme's claim; the shortfall of assets from this value. This is a major breach of the elementary concepts of equity and fairness.
The equivalent valuation to an advance made for a pension liability is the best estimate of that pension liability. It is not even the technical provisions level, let alone the section 75, full buyout value. The claim in insolvency is massively overstated.
This overstatement cannot even be justified by reference to the risk faced by the PPF. Because of the haircuts, the payment of reduced benefits, that is typically 80% or less than the best estimate of liabilities. Indeed, the PPF only faces loss if the scheme is funded below this level.
By contrast, under current conditions, the average section 75 value is close to twice the best estimate of liabilities. Suppose the scheme is funded to the level of best estimate, and the majority of schemes are actually now better funded than this, then the PPF will profit to the tune of 25% of its liabilities. However, the section 75 claim will be 100% of best estimate.
If you were another general unsecured creditor, you would be rightly indignant at this. This is the perverse incentive. As a creditor, if faced by such a massive dilution of your valid general unsecured claim, you would and should, out of prudent self-interest and not exploitation, take steps to ensure that your claim has higher priority or superior security.
The incentive is perverse and substantial. By contrast, in one view, the misdescription as moral hazard is not; that facilitates blame-shifting by the creators and enforcers of the incentive to the directors of the distressed company.
The solution does not lie with further powers for the Pensions Regulator, nor draconian legislation; that would simply make finance for distressed companies more expensive and less available. It would exacerbate their difficulties and increase insolvency rates. The correct solution requires twofold action: elimination of the section 75 debt fiction, and the introduction of negative pledge clauses with respect to real scheme deficits.
A negative pledge clause is a standard term in commercial lending. It would require the company to offer similar security and status terms to trustees as offered to other, usually new, creditors. As the trustee does have to accept this, there is flexibility to recognise the realities of commercial life, when necessary.
If corporate actions really have been too egregious, it should not be forgotten that the insolvency practitioner may be held accountable.
But don't hold your breath, demonising the individuals involved is just far too much fun, and advances political careers; particularly so when absolutely no blame is attached.
Con Keating is head of research at Brighton Rock Group
 The calculation is trivial: [(1/.80) - 1]
Joanna Smith says trustees will need to accurately identify if covenant issues are short-term affordability concerns, or the start of more material deterioration.
Consumer complaints against firms for misadvised DB transfers also rising
The Smiths Industries Pension Scheme has secured a £146m buy-in with Canada Life in its fourth bulk annuity and its sponsor’s tenth overall.
Moira Warner looks at what changes to the Judicial Pension Scheme actually mean.
Questions remain unanswered around defined benefit (DB) scheme funding, according to analysis by Lane Clark & Peacock (LCP).