Pension Scheme Internal Dispute Resolution
The scheme trustees must establish a dispute resolution procedures. The resolution mechanism can be determined by the scheme itself, subject to complying with the minimum statutory requirement. No more information than is objectively justified may be required of the complainant. The Pensions Act empowers the Minister to make regulations requiring internal dispute resolution procedures within occupational pension schemes
Beneficiaries and potential beneficiaries may make complaints under the dispute resolution procedures. The procedures must deal with disputes between beneficiaries / potential beneficiaries and the scheme trustees or other managers. They are to cover the same subject matters, which are within the scope the Pensions Ombudsman’s jurisdiction.
An application must be made in writing to the trustees (or their equivalent) by or on behalf of a beneficiary. It must set out the complaint, the subject of the dispute with sufficient detail, to enable the matter to be considered and determined.
The trustees (or their equivalent) determine the complaint and the dispute in the first instance. The matter must be determined and notified to the complainant in writing, within three months, provided that the complaint has been duly made and the requisite information has been provided. The notification of decision must set out the determination of the dispute with reference to the rules.
The dispute resolution procedures are to operate on a non-binding basis. Provided that the parties assent in writing to be bound, they may agree to become bound by the decision on foot of the procedure. The complainant must be given notice that he may assent to the determination. It must set out whether the complaint is within the remit of the Ombudsman scheme.
The Pensions Ombudsman is appointed by the Minister for Social and Family Affair for periods of six years. This period may be renewed. The Ombudsman is independent in the performance of his or her functions. He may be removed from office on the grounds of incapacity, ill-health, stated misbehaviour or other necessary grounds. He must keep accounts and furnish annual returns to the Department of Social and Family Affairs.
The Pension Ombudsman is to hold office for up to six years rather than a fixed period of six years. He must vacate office before the age of 70.
The Pensions Ombudsman and his office investigate complaints and disputes relating to occupational pension schemes and PRSA pensions. Their role is similar to that of the Financial Services Ombudsman. The FSO has no authority in relation to the areas under the Pensions Ombudsman’s responsibility. The Pensions Ombudsman does not deal with retirement annuity funds and social welfare pensions.
A complaint or dispute may be referred by an actual or potential pension beneficiary. This includes pension members, dependents of members, former members, personal representatives of members, as well as PRSA contributors, their personal representatives and beneficiaries generally.
The dispute or complaint must arise under the terms of the pension scheme. It is not limited to disputes about legal rights. The scheme covers complaints of maladministration as well as disputes in relation to matters of fact and law. The dispute may be with trustees, employers, administrators or other persons to whom responsibilities for pension schemes are delegated or who are otherwise responsible.
The Pensions Ombudsman may make awards of compensation arising from maladministration or from the infringement of legal rights. Maladministration is similar to the concept used in relation to the general public service Ombudsman’s office. It relates to the manner in which a decision is made or implemented. It does not concern the substance, legality or merits of the decision. A bona fide decision which is made reasonably is unlikely to be categorised as maladministration.
The Pensions Ombudsman has produced guidelines in relation to what may constitute maladministration. It may include the abuse of power unnecessary delays, discrimination, irregularities, mistakes, inattention, neglect, arbitrariness, withholding proper information, neglecting to obtain information required, and failure to obtain advice. The Minister for Social and Family Affairs may prescribe further categories of matters which may be referred to be to the Pensions Ombudsman’s office.
The matter complained of must have taken place within 6 years of the complaint. The period may be extended if the complainant was not aware of the matters, the subject of the complaint. The complainant must usually exhaust the pension provider (or other respondent’s internal dispute resolution mechanisms. PRSAs providers must have an internal disputes resolution mechanism.
The Pensions Ombudsman’s jurisdiction is excluded if there are proceedings before a court in relation to the matter, the subject of the investigation. Some types of dispute are excluded, including certain matters within the competence of the Pensions Board and the Equality Tribunal (now the WRC).
A complaint or reference is made in a prescribed form. If the complaint discloses no valid basis, the Ombudsman informs the complainant and gives reasons. The Pensions Ombudsman is not limited by the scope of the complaint made. It may consider that some other matter is relevant or that another party is the proper respondent and treat it as such.
The Pensions Ombudsman may investigate complaints in accordance with such procedures as he considers appropriate.
The process use by the Ombudsman’s office is inquisitorial rather adversarial. It may examine witnesses on oath and has the same powers as a High Court judge in this regard. The Pensions Ombudsman can require the production of information and documents.
Statements made in the course of an investigation may not be used as evidence in criminal proceedings. It is an offence to obstruct an investigation. Failure to comply with a requirement, such as to respond to a question or provide information, may be the subject of an application to the Circuit Court for a compliance order. The Circuit Court may consider whether there is any basis to refuse compliance with the ombudsman’s requirement.
In common with other investigatory bodies, the Pensions Ombudsman must comply with principles of the Constitution and natural justice. Generally, where matters which reflect on the competence or good name of a person are concerned, the person affected is entitled to (at least) make comments on the matters concerned, which must be considered in the making of the determination.
When an investigation is commenced, the Pensions Ombudsman furnishes a copy of the complaint to the respondent, together with copies of relevant documentation. Once the complaint is sent to the respondent, the complainant must respond to the allegations and set out the basis of opposition within 21 days. The response is supplied to the other relevant parties, and their comments are requested.
The Pensions Ombudsman can hold hearings as he considers appropriate. Constitutional justice requires that a hearing be held in certain circumstances. A hearing may be appropriate where there are conflicts of evidence and questions arise as to the liability of one or more parties, or there are disputed matters of fact which cannot be determined in writing or by investigation only.
On conclusion of the investigation, a determination is made. Generally, a preliminary view of the complaint is sent to the parties for further comment. This may embody a draft decision.
The Pensions Ombudsman’s powers include the giving of directions, awarding financial and /or non-financial compensation, publication of a report or making of recommendations. Any combination of the above may be awarded. Cost are not awarded by the Ombudsman’s office.
Directions are effectively orders arising from the determination. Directions may be such as may be necessary or expedient to deal with the complaint or dispute. They may require the rectification of an error. Orders may not be made outside of the scope of the pension scheme and rules. Generally, a discretionary decision will not be interfered with. If promises are made, this may be enforced in the Ombudsman.
Financial redress must be limited to such as is just and equitable under the circumstances. It must relate only to the loss sustained as a result of the respondent’s substantiated breach. Non-financial compensation may be such as considered appropriate.
Court proceedings may not be issued after a complaint has been made to the Pensions Ombudsman in respect to the same matter. The application to stay must before pleadings or significant steps in the proceedings are taken. The applicant must be prepared to cooperate with the investigation.
The Pensions Ombudsman encourages mediation in dispute resolution. A court in litigation may stay proceedings, (i.e., suspend them for a period) so that they can be referred to the Ombudsman.
There is an appeal to the High Court from a decision of the Pension Services Ombudsman. Similar criteria apply to that applicable to appeals from the Financial Service Ombudsman’s decision.
The High Court may confirm or vary the determination, The Pensions Ombudsman’s decision may be enforced by way of an application to the Circuit Court. An enforcement order may be made by the Circuit Court on such terms as appear appropriate.
2017 Reforms (Not Commenced May 2017)
The Financial Services and Pensions Ombudsman Act 2017 provides
- for the establishment of the Office of the Financial Services and Pensions Ombudsman
- the appointment of persons to be the Ombudsman and Deputy Ombudsman
- for the dissolution of the Financial Services Ombudsman Council, the Financial Services Ombudsman’s Bureau and the office of the Pensions Ombudsman
The Minister will appoint a day as the establishment day for the Financial Services and Pensions Ombudsman for the purposes of the Act.
The Act sets out the main functions of the Ombudsman (to deal with complaints under the Act). It further empowers the Office to make submissions to Government upon its own initiative or at the request of the Minister. The Office may be make guidelines in relation to its complaints procedures.
The Act provides for co-operation, as well as the exchange of information, between the Ombudsman and the regulatory bodies of the Central Bank of Ireland, the Registrar of Credit Unions and the Pensions Authority. It also empowers the Ombudsman to enter in to Memorandums of Understanding with these bodies.
Complaints to the Ombudsman
A complainant can complain about the conduct relating to:-
- provision of financial services;
- offer of financial services;
- failure to provide financial services;
- financial loss or
- dispute in relation to certain pensions or
- any complaint received by the Ombudsman before establishment day that was outside the applicable time limits at that time and falls within the new time limits.
There are procedures for dealing with a complaint where an eligible consumer, or an actual or potential beneficiary dies, or is a minor or is otherwise unable to act for himself or herself (claim may be brought by other appropriate persons).
Jurisdiction of Ombudsman
The 2017 Act provides for the conduct of investigations into a complaint and the powers of the Ombudsman. The Ombudsman retains the powers of a High Court Judge in carrying out investigations.
Where a complaint has been made or a dispute referred to the Ombudsman and any party to the complaint subsequently commences proceedings in a court against any other party to the complaint then any party may apply to the court to stay the proceedings.
The Ombudsman may accept a complaint against a financial service provider or a pension provider that has initiated legal proceedings in relation to a matter to which the complaint relates, where the Ombudsman believes, based on reasonable grounds, that the financial service provider or the pension provider, as the case may be, has begun those proceedings in order to prevent the making of the complaint, or to frustrate or delay its investigation.
Where a question arises as to whether the Ombudsman has jurisdiction, under the Act, to investigate a complaint, the question shall be determined by the Ombudsman whose decision shall be final.
The Ombudsman shall not investigate or make a decision on a complaint where—
- the internal dispute resolution procedures required under section 54 have not been complied with,
- there are or have been proceedings (other than where the proceedings have been stayed before any court in respect of the matter that is the subject of the investigation,
- the complaint relates to a matter that is within the jurisdiction of the Workplace Relations Commission or Pensions Authority or an alternative suitable forum or tribunal, or
- the complaint, or any matter arising in connection with the complaint, is excluded from the jurisdiction of the Ombudsman by regulations
The Ombudsman shall not investigate a complaint where the complainant has not given the financial services or pension provider an opportunity to deal with the complaint through the internal dispute resolution procedures. Where a complaint or dispute is being dealt with by a provider’s internal dispute resolution procedure, the applicable limitation period is suspended for the period during which the complaint is being considered under the internal dispute resolution process.
The time limit has two parts. There is a time limit for short term financial services. A six year time limit applies to complaints and complaints must be made six years from the date of the act or the conduct giving rise to the complaint.
For all pension products, and for longer term financial services (where the duration of the service is 5 years and one month, or more, and not subject to annual renewal or cancellable unilaterally) complaints can be made six years from the date of the act or conduct giving rise to the complaint. Alternatively it can be made three years from the earlier of the following two dates:
- the date on which the person making the complaint first became aware of the said act or conduct, and
- the date on which that person ought to have become aware of that act or conduct) within such longer period as the Ombudsman may allow where it appears to him or her that there are reasonable grounds for requiring a longer period and that it would be just and equitable, in all the circumstances, to so extend the period
The new time limits for long term financial services will apply to complaints made to the Ombudsman about conduct that occurred during or after 2002 and the service in which complaint is about must not have expired or otherwise been terminated more than six years before the date of complaint.
The Minister has power to make financial service providers and pension providers establish internal dispute resolution procedures, by means of regulations. The Act sets out the rules of procedure with respect to the conduct of investigations. It sets out how the mediation process will work.
There is a procedure where, on completion an investigation of a complaint that has not been settled or withdrawn, the Ombudsman shall make a finding in writing. The Ombudsman will also now be required to set out the rationale for his determination and the basis for compensation.
Decisions of the Ombudsman are binding on all parties to the complaint.
The Ombudsman is required to publish anonymised determinations in order to improve the understanding by the public and industry of determinations. The Ombudsman may also publish a report in relation to any investigation.
Appeal to Court
The 2017 Act provides for an appeals process to the High Court for the complainant or the service provider. The Ombudsman may, on his own initiative or at the request of the complainant or the regulated financial service provider or pensions provider concerned, refer for the opinion of the High Court a question of law arising in relation to the investigation or adjudication of the complaint.
If a question of law has been referred to the High Court the Ombudsman may not make a finding to which the question is relevant while the reference is pending, or proceed in a manner, or make a decision, that is inconsistent with the opinion of the High Court on the question.
The Ombudsman has power to seek an injunction in the High Court to restrain conduct in which a financial service provider or pension provider is engaging or appears likely to engage, where that conduct is being investigated or is proposed to be investigated.
References and Sources
Irish Pensions Law & Practice Buggy, Finucane & Tighe 2nd Ed (2005) Ch.20
Pensions; Revenue Law and Practice (ITI) Dolan, Murray, Reynolds, McLoughlin (2013)
Trustee Handbook the Pensions Authority 5th Ed 2016
Statutory Guidance the Pensions Authority (Various)
Pensions Law Handbook 12 Ed Nabarro Nathanson Bloomsbury
Corporate Insolvency 6e: Employment & Pension Rights (6th Revised edition)
Occupational Pensions (Subscription) Lexis Nexis
Pensions Law and Practice with Precedents (Subscription) Sweet & Maxwell
Sweet & Maxwell’s Law of Pension Schemes (Subscription)
The Guide for Pension Trustees World Economics Ltd
The Guide for Pension Trustees website, you can:
Tolley’s Pensions Law Looseleaf Service (Subscription)
Pensions Act, 1990
Pensions (Amendment) Act, 1996
Pensions (Amendment) Act, 2002
Pensions (Amendment) Act, 2006
Social Welfare and Pensions Act, 2005 (Part 3)
Social Welfare Reform and Pensions Act 2006
Social Welfare and Pensions Act 2007
Social Welfare and Pensions Act 2008
Social Welfare (Miscellaneous Provisions) Act 2008
Social Welfare and Pensions Act 2009
Social Welfare and Pensions (No. 2) Act 2009
Social Welfare (Miscellaneous Provisions) Act 2010
Social Welfare and Pensions Act 2010
Social Welfare and Pensions Act 2011
Social Welfare and Pensions Act 2012
Social Welfare and Pensions (Miscellaneous Provisions) Act 2013
Social Welfare and Pensions Act 2013
Social Welfare and Pensions (No. 2) Act 2013 49/2013
Social Welfare and Pensions Act 2014
Social Welfare and Pensions (No. 2) Act 2014 41/2014
Social Welfare (Miscellaneous Provisions) Act 2015 12/2015
Social Welfare and Pensions Act 2015 (Part 3)