Investment Decision Reference 2022-0147

Case OutcomeRejected
Subject MatterInvestment
Date22 April 2022
Finantial SectorInvestment
Conducts Complained OfMis-selling
Decision Ref:
Product / Service:
Conduct(s) complained of:
This complaint relates to two pension products as follows:
An Executive Retirement Plan which facilitated a single investment in a Geared
Property Fund in June 2005.
The First Complainant is a Limited Company (“the Complainant Company”) having
two shareholders, and it is the Trustee of the Executive Retirement Plan.
The Second Complainant is the sole member of the Executive Retirement Plan and
he is also a shareholder and director of the Complainant Company.
A Retirement Bond incepted in December 2010.
The Second Complainant is the plan holder of the Retirement Bond.
These pension products were sold by a third-party broker (the “Broker”) but this complaint
is maintained against the Provider, which is the product provider of the Executive
Retirement Plan and the Retirement Bond.
The Complainants’ Case
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The Complainants submit that this complaint is in respect of the conduct of the Provider as
the product provider of the Executive Retirement Plan and the Retirement Bond.
The Complainants state that the true nature of those pension policies came to light in 2012
following correspondence between the Second Complainant and the Provider. The
Complainants say that the issues of trusteeship and commissions were first made clear, in
The Complainants state that this complaint relates to:
Incorrect completion of Occupational Pension Scheme Trust set up
documentation June 2005
Lack of provision of requisite documentation at set-up - EG “Rules” - Letter of
Appointment of Trustee
Lack of provision of full and clear information to [the First Complainant]
regarding scheme assets before and after sale of pension products
Non adherence to the Consumer Protection Code Regulations
Breach of duty of registered administration function to maintain accurate and
sufficient records to members and their pension entitlements
Inappropriate Retirement Bond and acceptance of in specie transfers in 2010 as
qualifying criteria for such bond not met.”
The Complainants say that a legal trust was not created at any date in June 2005 as a
result of:
1. [The Provider’s] failure to properly record and identify the parties to the scheme
2. Failure to obtain complete and correct completion of Letter of Exchange form
3. the failure to adhere to correct procedures and regulations in relation to
pension scheme fund set up and investment.”
The Complainants submit there has been “… a significant loss incurred in the pension
provision of the Principal as a result of such failures.”, and part of this loss crystallised in
September 2013, following the sale of the underlying investment in the Geared Property
Fund. The Complainants explain the investments made, have resulted in monetary loss but
also due to Approved Minimum Retirement Fund (AMRF) requirements, there can be no
access to pension funds by the Second Complainant, until the Second Complainant reaches
75 years of age in 2031.
The individual headings below are those that were used by the Complainants in their
submissions accompanying their Complaint Form.
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Pension Regulations
The Complainants state that there were accumulated funds in a Defined Contribution
Scheme (the “DC Scheme”), of which the Second Complainant was the sole member.
The Complainants say that in late June 2005, the DC Scheme assets “were forwarded to
[the Provider]” and “converted” to the Geared Property Fund. The Complainants submit
that the Provider processed correspondence, including the application form, and had
access to the information in respect of the DC Scheme assets. The Complainants say that
the Provider dealt with the registration of the Executive Retirement Plan and approval
from Revenue.
The Complainants say that even if the First Complainant had been properly appointed
under the trust, it should be noted that the assets held in the Executive Retirement Plan
as at June 2005, comprised just one policy and that the investment strategy “lies/lay with
fund managers” and not with the Trustee.
Set up Documentation for the Scheme
The Complainants submit that “a legal trust was not created at any date in June 2005”. The
Complainants contend specifically in this respect, as follows:
Letter of Exchange: The Complainants submit that the Letter of Exchange bears a date of 9
June 2005 and is signed by the employer (the First Complainant) and employee (the
Second Complainant). They say that the Letter of Exchange, signed by the First
Complainant, was not in its capacity as Trustee. They also say that the name of the First
Complainant is spelled incorrectly.
Rules: The Complainants submit that a signed Rules document was not received. The
Complainants say that the Provider only supplied a copy of the Rules document entitled
Declaration of Trust and Rules of the Scheme when requested by the Complainants, in
However, the Complainants submit: “The document contains information of correct
completion, which includes the affixing of Company Seal and signatures of Directors. The
document furnished is blank and bears a 2008 ([reference number]) reference.
Deed of Trust: The Complainants say that no specific deed was signed and a Letter of
Appointment of Trustee was not received in 2005.

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