As Toys R Us seeks shelter in the Pension Protection Fund (PPF) for its deficit, following the dumping of pension scheme liabilities by Bernard Matthews (now under investigation by the Pensions Regulator), BHS and Carillion, *Professor Prem Sikka comments that too many companies are using a procedure known as “pre-pack administration” to sell-off a company’s assets for the benefit of shareholders, banks and private equity concerns, abandoning pension scheme deficits in the process.
There is a general concern that the pre-pack administrator, in agreeing to the pre-pack in consultation with the company’s management team (and usually its secured creditors), favours the interests of the managers and secured creditors ahead of those of the unsecured creditors. The speed and secrecy of the transaction often lead to a deal being executed, about which the unsecured creditors know nothing and offers them little or no return.
Bad management can plan for a prepack months in advance, line up an administrator – and then be back running the business immediately. It means when retailers fail they are often being kept with the same directors when it would be much healthier if new management arrived and with fresh money to invest (Nottingham Law School Journal, Peter Walton).
Last year, the FT reported that some 148 pension schemes with £3.8bn of liabilities have been offloaded into the Pension Protection Fund (PPF, header above) through pre-pack administrations and that directors, shareholders and bankers extracted an extra £3.8bn from companies by dishonouring the contracts with employees. Another 20 schemes were being assessed and the numbers are growing.
Some companies use pre-packs to extract high executive remuneration, returns for shareholders and dump the pension scheme liabilities with the knowledge that 90% of the pension deficit may be made good by the PPF. The PPF was established by the Pensions Act 2004 to rescue distressed pension schemes, but the amount of compensation received is less than a member would have been entitled to under the rules of their original pension scheme.
Professor Sikka advises that all companies with a pension scheme deficit be required to submit an annual plan to the Pension Regulator explaining how they seek to eliminate it and there should be a binding commitment to reduce the deficit. To this end:
- All share buybacks, dividends and other forms of returns should be conditional on a plan to eliminate the pension scheme deficit.
- This plan needs to be approved by the Pensions Regulator.
- Each year the company should explain whether the previous promises to reduce the deficit have been delivered.
- Whenever a company with a pension scheme deficit engages in a merger or takeover it should be required to seek approval from the Pensions Regulator.
And is the pensions regulator to blame for the Universities Superannuation Scheme crisis?
David Bailey, professor of industry at the Aston Business School in Birmingham and John Clancy, pensions analyst and former Leader of Birmingham City Council argue that the Pensions Regulator, not universities, is the driving force behind proposed cuts due to its nonsensical approach to discount rates.
Read their article in the Times Higher Education, which describes itself as the data provider underpinning university excellence in every continent across the world.
* Professor Prem Sikka, Professor of Accounting at University of Sheffield and Emeritus Professor of Accounting at University of Essex
So writes Professor Prem Sikka director of the Centre for Global Accountability at the University of Essex (Accountancy) in a recent article.
By colonising bodies such as the International Auditing and Assurance Standards Board and the UK’s Financial Reporting Council, big accounting firms control the production of auditing standards. Various international auditing standards, codes and related pronouncements, for instance, cover about 3,000 pages but remain silent on auditor accountability to the public.
The public bears the cost of audits and audit failures, but has no right to see audit files or to make an assessment of the quality of audit work. Legal cases show that, even despite an admission of negligence, auditing firms escape liability because under UK law they do not owe a “duty of care” to any individual shareholder, creditor, employee, pension scheme member, or any others affected by their negligence.
The silence of the auditors at distressed banks is well documented though this has resulted in little effective action. No auditing firm has returned the fees for dud audits. Earlier this year, nearly six years after the banking crash, the Wall Street Journal reported that a US auditing regulator found more than one in three audits inspected were considered to be deficient and did not provide enough evidence to enable auditors to reach a conclusion.
Who will audit the auditors?
What should we do with producers who routinely deliver faulty goods and services? Producers of cars, food, medicines, aeroplanes and even financial products are forced to compensate injured parties, recall their goods and face the possibility of being forced out of business. But such niceties do not apply to the auditing industry.
A damning report was produced by the International Forum of Independent Audit Regulators (IFIAR), an organisation representing audit regulators of 49 jurisdictions, including Australia, France, Germany, Italy, Japan Spain, UK and the US. This IFIAR report was compiled from the audit inspections carried out by national regulators and focuses on audits of major listed companies. The audit market for these companies is dominated by the Big Four accountancy firms – Deloitte Touche Tohmatsu, Ernst & Young, KPMG and PricewaterhouseCoopers – and smaller rivals Grant Thornton and BDO. Their combined global revenue is around US$120 billion and the “too big to close” syndrome continues to prevent effective regulatory retribution.
Auditors will continue to audit the very transactions that they themselves have created
The post banking crash auditing reforms recently announced by the EU require that financial institutions and listed companies change their auditors every 10-24 years, something which will not prevent collusive relationships between companies and auditors. The EU will impose further restrictions on the auditor’s ability to sell consultancy services to their clients, rather than imposing a complete ban. So auditors will continue to audit the very transactions that they themselves have created.
Minimalist reforms are welcomed by the auditing industry, but do not address the problems identified above . . .
Auditors should owe a “duty of care” to all stakeholders who have reasonably relied on audit reports. The consumer rights revolution which applies to even mundane things like toffees and potato crisps also needs to apply to producers of audit opinions. All auditor files should be publicly available so that interested parties can make their own assessment by considering the composition of the teams, time spent, horse trading with company directors and conflicts of interests.
The above proposals can stimulate competition and hnf and thus create incentives for accounting firms to escape the cycle of institutionalised failures. No doubt, auditing firms would oppose any proposals that strengthen their public accountability, but the reforms can save them from their own follies.
Read the whole article here: https://theconversation.com/big-auditors-must-be-made-accountable-to-the-public-25766