14.0 Introduction
14.1 What can be investigated?
14.2 What is excluded?
14.3 How does the process work?
14.4 Making the Complaint
14.4 What happens next?
14.5 Investigation and Preliminary View
14.5 Oral Hearings
14.6 Enforcement and Appeals
The Pensions Ombudsman investigates and decides complaints and disputes concerning occupational pension schemes and Personal Retirement Savings Accounts (PRSAs). He is completely independent and acts as an impartial adjudicator. His appointment and powers operate under the Pensions Act, 1990, as amended by the Pensions (Amendment) Act, 2002. The first Pensions Ombudsman was appointed on 28 April 2003.
The Pensions Ombudsman is assisted by experienced and well qualified staff who have authority to write on his behalf; though the final decision on any complaint must be made by the Pensions Ombudsman himself.
There is no charge for bringing a complaint or dispute to him.
The Pensions Ombudsman investigates complaints that allege maladministration by those responsible for the management of occupational pension schemes and PRSAs. The complaint may be against trustees, managers, employers, former employers and administrators (including PRSA Providers). The Pensions Ombudsman also investigates disputes of fact or law with trustees or managers or employers concerning pension schemes.
Maladministration can include bias, neglect, inattention, delay, incompetence, ineptitude, perversity and arbitrariness. It means administration that is poor, or that has failed in some way. It can be something that was done, or something that was not done. It will include:
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Irregularities or mistakes in the administration process;
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Discrimination or unfairness;
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Failure to understand, interpret or properly operate the rules of a scheme;
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Failure to honour the terms of a PRSA contract;
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Unnecessary delay in making payments or giving information;
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Abuse of power;
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Not providing sufficient information, or not giving clear information;
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Neglecting to obtain the proper information needed to exercise a power;
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Failure to get advice - or failure to ask advice of the proper person.
This is not a complete list, and many different kinds of action or failure can be classed as maladministration.
To succeed with a complaint, it is not enough that the complainant just disagrees with what has been decided by those managing a scheme or a PRSA. The person who complains must have reason to believe that the decision was not properly made or implemented.
Disputes of fact or law usually arise as part of a complaint of maladministration, without needing a separate investigation. Whether a complaint involves maladministration or a dispute of fact or law is for the Pensions Ombudsman to decide.
The Pensions Ombudsman cannot investigate:
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A complaint or dispute where court action has already begun - unless the action is 'stayed' (i.e. suspended) by the court. This can be done if the case has not gone very far - i.e., before pleadings are entered. Ask your lawyer for advice if you are in doubt. An industrial tribunal counts as a court for this purpose.
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A complaint or dispute about a State social security benefit (for example, Social Welfare Retirement or Old Age Pensions).
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In addition, when it comes to pension schemes, the Pensions Ombudsman must not investigate a complaint or dispute about whether a scheme is complying with the requirements of the Revenue Commissioners or with the Pensions Act, or other issues concerned with the general running of the scheme, or complaints or reports on the conduct of the scheme generally ' as opposed to a complaint affecting only an individual's benefits.
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A complaint that has been the subject of a Determination by another Ombudsman will not be considered.
Matters of general compliance with the Pensions Act are the responsibility of the Pensions Board. The Board also has statutory power to determine certain matters prescribed by the Pensions Act - in particular, whether a pension scheme is a defined benefit or a defined contribution scheme; whether a person's service in 'relevant employment' has been terminated; and certain matters concerning equal treatment of men and women. Other equal treatment issues are the concern of the Director of Equality Investigations and are also excluded from the Pensions Ombudsman's powers.
The Pensions Ombudsman cannot make any findings of fact about non-compliance with the Pensions Act or the matters that come under the statutory powers of the Pensions Board. However, it is possible that a complaint may involve both financial loss to an individual and failure by some other person to comply with the Pensions Act. If this is so, both the Board and the Pensions Ombudsman may investigate the matter.
When you have a complaint or dispute, you should first try to sort it out with the persons responsible for the management of the pension scheme or PRSA.
Where the pension scheme or PRSA has an Internal Disputes Resolution (IDR) procedure,the Pensions Ombudsman cannot as a rule investigate the complaint or dispute until the matter has been submitted to that procedure and the trustees or PRSA managers have issued their notice of decision. Under the Pensions Act, all pension schemes and PRSAs must operate an IDR procedure. There are no hard-and-fast rules covering the way they operate. Scheme trustees in the private sector and PRSA providers set up their own procedures, though they must be approved by the Pensions Board in the case of PRSAs. In 'Public Authority' schemes, there is provision for an appeal to one or more Government Ministers, and an appeal to the relevant Minister/s satisfies the need for an IDR procedure. The Local Government Superannuation Scheme has a separate IDR process. In some cases, where there is a trust in place for a Public Authority scheme as well as regulation, it might be necessary to have more than one IDR procedure in place.
So the IDR procedures can vary, from something fairly informal in a small pension scheme, to a much more structured arrangement in a PRSA, or a fairly elaborate appeals procedure in a Public Sector scheme. Parties are not bound by recommendations arising out of an IDR procedure, unless they agree in writing to be bound by it. So, if a person is unhappy with the outcome of this process, they can then take their complaint to the Pensions Ombudsman. The same applies if the person complained against fails to implement any recommendation that came out of the IDR process.
Certain pension schemes, such as those already in winding-up when the Pensions Ombudsman Regulations were signed, may not be required to provide for an additional internal disputes resolution procedure. The same applies to 'frozen' schemes where there is no participating employer still trading. In addition, those people who had disputes or complaints considered by the Pensions Board before the Pensions Ombudsman's appointment may not be required to submit to any further procedures. Contact the Pensions Ombudsman's Office for information.
If you want the Pensions Ombudsman to investigate a complaint or rule on a dispute:
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Check that your complaint or dispute comes within his authority and that you are eligible to complain. This means that you must have gone through a disputes resolution process first, or that you are happy that there is no need to go through further procedures.
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If it is a complaint that the Pensions Ombudsman can consider, write to him explaining your complaint or dispute and saying what you think the persons responsible for the management of the pension scheme should do to put matters right. There is a standard form which you must use. This form is available from the Office of the Pensions Ombudsman, from the Pensions Board, from your local Social Welfare Office or can be accessed on the Pensions Ombudsman website:
www.pensionsombudsman.ie
., from where it can be sent to the Ombudsman's office in electronic form.
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Enclose allrelevant documents and correspondence (copies will do) including any you have received from your pension scheme or employer or administrator. Complaints by telephone cannot be accepted.
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You may get someone else to write for you (for example, a solicitor, accountant or trade union representative) so long as they have your written authority to represent you. However, if you employ a professional person you will be responsible for costs.
When he receives your form and any documentation you submit with it, the Pensions Ombudsman must than decide whether the matter is one that he is allowed to investigate. If, for any reason, the Ombudsman cannot investigate your complaint or dispute, you will be informed. This could happen because the matter falls outside the Pensions Ombudsman's terms of reference, or because the time-limits provided for in the Pensions Act have expired. In general, the Pensions Ombudsman will not investigate a complaint which has already been a subject of a determination by another Ombudsman.
If the Ombudsman does decide to investigate your complaint or dispute you will be notified and you may be asked for further information. It is important - and in your own interest - that you provide that information requested without delay. Other parties to the complaint or dispute, named in your application form, will be given copies of any documentation the Pensions Ombudsman receives from you. You will also receive copies of documentation which the Ombudsman obtains from other parties. All parties must observe confidentiality in relation to any documents they receive.
The length of time taken for an investigation will vary, depending on how complicated the matter to be investigated may be. Investigators from the Pensions Ombudsman's office may need to contact the parties to an investigation to seek additional documents, or to seek face-to-face interviews with them. Application can be made to the Circuit Court to obtain papers that are not forthcoming. When an investigation is near its end, the Pensions Ombudsman will in many cases give a 'Preliminary View' to all parties to the complaint or dispute. This will summarise the facts that were uncovered in the course of the investigation. It will also indicate the likely ruling by the Pensions Ombudsman. At that stage the parties will be given a chance to provide any further information or evidence that may not have been given up to then.
The Pensions Ombudsman will not give a preliminary view in all cases but will do so, at his own discretion, where he believes this to be suitable. Shortly after that, he will make a final determination of the issue which has been the subject of the complaint or dispute. Financial compensation may be awarded in a case were the Pensions Ombudsman concludes that an individual who has complained has been at a financial loss due to the maladministration of a pensions scheme or a PRSA. The financial compensation that may be given is limited to the amount of any actual loss. No awards may be made for suffering or general inconvenience. The Pension Ombudsman's determination is final, but may be appealed to the High Court by any party.
The Pensions Act provides that the Pensions Ombudsman has power to hold oral hearings before coming to a determination in a matter under investigation. The question of whether such a hearing is required is for the Pensions Ombudsman alone to decide. If an oral hearing is to be held, the Pensions Ombudsman will fix the time and date and give due notice to the parties. The Pensions Ombudsman may adjourn a hearing if he wishes.
Parties to the complaint or dispute are invited to inform the Pensions Ombudsman whether or not they intend to attend the hearing, or be represented, or call witnesses. Anyone who does not attend an oral hearing may make submissions in writing, to be taken in to account at the hearing.
In general, oral hearings will be held in public, but the Pensions Ombudsman may decide to hold them in private in limited circumstances - for example, where intimate personal information or commercially sensitive matters are to be discussed at the hearing. Every party to a complaint or dispute has the right to the request the Pensions Ombudsman to hold an oral hearing before making a determination. If someone not request an oral hearing, they may not complain later if none is held. If one is requested, the Pensions Ombudsman may or may not agree, and the final decision is his alone. He may also decide to hold an oral hearing even if none of the parties has asked for one.
As a general rule, it is the policy of the Pensions Ombudsman to hold an oral hearing in the following circumstances:
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Where there are differing accounts of a particular event and the credibility of witnesses needs to be tested;
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Where the integrity or honesty of one of the parties has been questioned, and that person has asked for an oral hearing;
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Where there are disputed material and primary facts that cannot properly be determined from the papers uncovered by the investigation on their own.
The Pensions Ombudsman may decide, even if none of these conditions applies, that an oral hearing is desirable and necessary.
Any determination made by the Pensions Ombudsman in relation to a complaint or dispute will be communicated in writing to all parties. The Pensions Ombudsman also has power to publish a report on any investigation. If a party to a complaint or dispute fails or refuses to comply with the determination with the Pensions Ombudsman, the Circuit Court may make an order directing that party to carry out the determination. Such an order may be requested by the other party to the complaint or dispute, or by the Minister for Social and Family Affairs, if the Minister considers it appropriate to do so.
A party to an investigation may appeal to the High Court from a determination of the Pensions Ombudsman within 21 day of the date of that determination and the High Court may, if it thinks fit, annul the determination, confirm it or modify it.