THE PENSIONS ADVISORY SERVICE

09 December 2009

Tony Attubato Technical Manager

What is TPAS?

• Founded in 1983 as the Occupational Pensions Advisory Service (OPAS)

• Voluntary organisation• Government funded from 1990• Changed name from OPAS to The Pensions

Advisory Service (TPAS)

TPAS’ Service

• Information & Guidance• Dispute Resolution• Talks in the Workplace

TPAS

• Voluntary service• Approx 450 volunteers• Involved with all aspects

of our service

Dispute Resolution

What do people complain about?

Dispute Resolution

• Independent

• Involvement usually welcomed by all parties

• Conciliate and mediate

• No statutory powers

• Solution not binding

Mistakes…

• Incorrect information• Overpayments

• Change of Position

• Change of position is a defence to a claim in unjust enrichment, or for a restitution. Ordinarily, someone who has been unjustly enriched at the expense of another is strictly liable to discharge his gains. However, a “change of position” defence operates where it would be inequitable to compel him to make restitution.

- Wikipedia

• Change of Position – Step 1

• Should the member have known?

• Change of Position – Step 2

• Direct reliance?

• Change of Position – Step 3

• Mitigation

Compensation…

• Overcome financial loss directly caused by a mistake

• Westminster CC v Haywood [1998]

• Distress and inconvenience

Ill-health retirement…

Ill-health retirement…

We can’t…

• Advise whether or not the medical evidence is sufficient

• Advise whether or not a pension should be paid

• We are not medical experts!

Ill-health retirement…

• Where can we help?

• The decision-making process• Edge & others v Pensions Ombudsman and

another

– adopt a correct construction of the scheme rules– the decision maker must ask the right questions– only take account of relevant factors & ignore irrelevant

factors– not make a perverse decision

Ill-health retirement…

• Mrs Cotton is aged 55• Suffering from stress, anxiety,

depression• Applies for ill-health retirement• Application refused because

there are treatment options available.

Ill-health retirement…

• Will treatment likely help Mrs C return to work?

• Otherwise, the fact there are treatment options available may be irrelevant

• Ill-health retirement…

• Tancred v the Department for Education & Skills

• Round 1 (N00507)

• Ill-health retirement…

• Tancred v the Department for Education & Skills

• Round 2 (P01315)

• Ill-health retirement…

• Tancred v the Department for Children, Schools & Families

• Round 3 (16364/4)

Death benefit complaints…

Death benefit complaints…

• Where can we help?

• The decision-making process• Edge & others v Pensions Ombudsman and

another

– adopt a correct construction of the scheme rules– the decision maker must ask the right questions– only take account of relevant factors & ignore irrelevant

factors– not make a perverse decision

Death benefit complaints…

• Miss C B – fiancée of Mr B

• Miss S B – daughter of Mr B

• Will dated 6/97 pension rights to be paid to Miss S B

• Nomination form dated 9/97 death grant should be paid to Miss C B

• Mr B died 4 January 2000

• Death grant paid to Miss S B

Death benefit complaints…

• What are the rules?

• Could Miss S B receive any benefit?

• Had the Council misapplied their rules?

• Have only relevant factors been taken account of?

• Have the right questions been asked?

• Was the decision perverse?

Death benefit complaints…

• 1997 - Mr Mc completes expression of wish form nominating his two grown-up sons as beneficiaries

• 2006 – Mr Mc dies• Insurer decides to pay 50% to Mrs Mc and 25% each

to the sons

Death benefit complaints…

• Insurer – it was a reasonable decision• Ombudsman – no evidence of what was taken into

account• “all they can reasonable say is that the decision they

reached is one that may be reasonable.”• Directed the insurer to obtain all material evidence,

take a fresh decision and give reasons to the affected persons

Thank you for listening