This article was written by Caius Mills, solicitor, in our Pensions Disputes team.
The Court of Appeal has decided that the Pensions Ombudsman (“PO”) is not a “competent court” for the purposes of section 91(6) of the Pensions Act 1995 (“PA 1995”) and therefore a PO determination alone does not allow Trustees to recoup contested overpayments.
This issue arises in the context of Trustees having mistakenly overpaid benefits to members and the question of the Trustees’ ability to recoup that overpayment by offsetting against future benefit payments. The Pensions Ombudsman v CMG Pension Trustees Ltd & Anor centred around this issue of recoupment and that in accordance with section 91(6) Pensions Act 1995 (“PA 1995”) the Trustee must obtain an order of a "competent court" before recouping sums allegedly overpaid where there is a dispute with the member about the amount to be recouped or the rate of deduction. The Court of Appeal had to consider whether the PO was a “competent court”.
The High Court in CMG Pension Trustees Ltd v CGI IT UK Ltd originally held that an order of a competent court is required, and that the PO is not a “competent court” for these purposes. As a result of this decision, the PO, despite not being a party to the High Court claim, sought leave to appeal in relation to this issue and leave was granted.
Court of Appeal Decision
The Court of Appeal agreed with the High Court and confirmed that the PO is not a “competent court” for the purposes of section 91(6) PA 1995 and therefore even if the dispute is resolved by the PO any attempt to enforce a recoupment decision must be brought in the County Court pursuant to section 151(5) Pension Schemes Act 1993 (“PSA 1993”).
The Court of Appeal highlighted that the PO cannot be a “competent court” as the jurisdiction that the PO has is one sided, in that it can only determine cases referred to it by a member or beneficiary, unlike the Court which can determine cases referred to it by any party. The Court of Appeal though found that enforcement in the County Court is an administrative matter that can be carried out by a court officer, therefore “the County Court can’t revisit the substance of the dispute where section 91(6) applies”. This goes some way to upholding the principle that the PO’s determination is final.
Pensions Ombudsman’s Position
The PO previously issued a fact sheet, in April 2019, on why his office should be considered a “competent court” and highlighted that under section 151(3) of the PSA 1993, a determination by the PO of a complaint or dispute and any direction given by him is final and binding, subject only to an appeal on a point of law to the High Court. In the PO’s view this should allow him to determine matters and act as a “competent court” under section 91(6) PA 1995.
Since this decision, the PO has acknowledged the Court of Appeal’s judgment and has confirmed it is reviewing its position.
Ultimately, if the recoupment is not disputed then no order of any court or ombudsman is needed. However, if the recoupment is disputed then the PO can determine the dispute and the Trustees will then need to apply to the County Court for the enforcement of that decision. Alternatively, it should be open to Trustees to refer the matter directly to the County Court for an order without exhausting the PO process first. If a dispute goes via the PO first, whilst this has added an extra step for the Trustees in the enforcement process, it has confirmed that this is solely an administrative matter and therefore it is unlikely to dilute the PO’s power to make final determinations. It will be interesting to see how the PO views this decision.
To be clear, it seems to me that: the Pensions Ombudsman is not a "competent court" for the purposes of section 91(6) PA 1995; the Pensions Ombudsman may make determinations and directions in relation to the overpayment and recoupment of benefits; those determinations and directions can be enforced in the usual way pursuant to section 151(5) PSA 1993; ... enforcement in the County Court is an administrative matter and is to be carried out by a court officer; and there is no requirement to commence an action in the County Court or for that court to consider the merits of the matter.