Welcome to DLA Piper's Pensions Ombudsman Round-Up publication in which we report on recent determinations made by the Pensions Ombudsman and Deputy Pensions Ombudsman.
In this edition we look at determinations covering issues including:
- spouses' pensions;
- provision of information in relation to a bulk transfer;
- overpayments; and
- change of index.
In the statistics section we provide a breakdown of the overall outcome of the determinations for August and September 2019 and the range of awards made for distress and inconvenience.
In this newsletter references to:
"TPO" mean the organisation The Pensions Ombudsman;
"the PO" mean the Pensions Ombudsman; and
"the DPO" mean the Deputy Pensions Ombudsman.
If you would like to know more about any of the items featured in this edition of Pensions Ombudsman Round-Up, please get in touch with your usual DLA Piper pensions contact or contact Megan Sumpster. Contact details can be found at the end of this newsletter.
This complaint (PO-24316) concerns the cessation of a widow's pension from a public service scheme (the Scheme) after the widow (the Applicant) began co-habiting with a new partner.
The Applicant relied upon a statement made in Booklet R, which was sent to the Applicant's spouse, Mr N, when he applied for retirement in 2006. Booklet R stated that, following the death of a member, a "permanent pension" would be payable of an amount equal to half of the member's pension.
The DPO noted that, where a complaint concerning the provision of incorrect information is brought to TPO, it will usually consider two legal concepts: negligent misstatement and estoppel. TPO will also consider whether there has been maladministration. The starting point is that where incorrect information has been provided, a scheme generally is not bound to pay the benefits as incorrectly described as a member is only entitled to receive the benefits provided for under the scheme's governing documents. Broadly, TPO will provide redress in connection with the provision of incorrect information if it can be shown that financial loss has flowed from the incorrect information. In relation to estoppel, TPO will not allow either party to rely on a fact contrary to that which they have previously represented if it would not be fair to do so. In addition to, or instead of, financial compensation, TPO may award compensation for distress and inconvenience if what was done amounted to maladministration.
The complaint was considered by an Adjudicator, who provided an analysis of his findings in respect of negligent misstatement, estoppel and maladministration.
Although the statement in Booklet R was: (i) clear and unequivocal; (ii) made by someone who owed a duty of care towards Mrs R; and (iii) inaccurate, the Adjudicator was of the opinion that it was not reasonable for the Applicant to rely on Booklet R. This is because she received annual newsletters informing her that she needed to contact NHS BSA if she cohabited with a new partner as this may affect her benefits and so she should have been aware that her widow's pension was not permanent. Therefore, the complaint of negligent misstatement failed.
The Adjudicator was of the view that Booklet R contained a clear representation but that it was not foreseeable that the Applicant would rely upon it. He noted the NHS Pension Scheme Regulations 1995, which governed Mr N's benefits state that, should a widow co-habit with another partner, the widow's pension would cease. He also noted the annual newsletters that the Applicant received. The Adjudicator also considered that NHS BSA going back on the representation made in Booklet R would not be unconscionable because the consequence of the estoppel would be to do something contrary to statute or public policy. Maladministration
In the Adjudicator's opinion, NHS BSA's action did not amount to maladministration because Booklet R was not intended to be a full statement of the law that governs the Scheme.
The DPO's conclusions
The DPO largely agreed with the Adjudicator and did not uphold the Applicant's complaint. She found that the Applicant could have contacted NHS BSA to query how her widow's pension would be affected if she cohabited with her partner and that, had she done so, she would have been able to mitigate her losses. The DPO also noted that the estate of a deceased person cannot suffer distress and inconvenience and that there was not any maladministration in the way that the Scheme communicated with the Applicant.
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