Star Homes (Midleton) Ltd v Pensions Ombudsman

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan
• Judgment Date: 21 December 2010
• Neutral Citation: [2010] IEHC 463
• Court: High Court
• Date: 21 December 2010

[2010] IEHC 463

THE HIGH COURT

[No. 292 J.R./2010]

Star Homes (Midleton) Ltd v Pensions Ombudsman

JUDICIAL REVIEW

BETWEEN

STAR HOMES (MIDLETON) LIMITED

APPLICANT

AND

THE PENSIONS OMBUDSMAN

RESPONDENT

AND

ANNA SZEEFS

NOTICE PARTY

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

RSC O. 84 r26(4)

PENSIONS ACT 1990 S139

PENSIONS ACT 1990 S140

PENSIONS ACT 1990 S138

J & E DAVY (T/A DAVY) v FINANCIAL SERVICES OMBUDSMAN & ORS 2008 2 ILRM 507 2008/30/6639 2008 IEHC 256

DOUPE v LIMERICK CO COUNCIL & O'CONNOR 1981 ILRM 456

GALVIN v CHIEF APPEALS OFFICER & MIN FOR SOCIAL WELFARE 1997 3 IR 240 1998/7/1929

CENTRAL BANK ACT 1942 S57BK(4)

SQUARE CAPITAL LTD v FINANCIAL SERVICES OMBUDSMAN UNREP MCMAHON 27.8.2009 2009/53/13449 2009 IEHC 407

KILLILEA v INFORMATION CMSR 2003 2 IR 402 2003/29/6951

J & E DAVY T/A DAVY v FINANCIAL SERVICES OMBUDSMAN 2010 2 ILRM 305 2010 IESC 30

J & E DAVY (T/A DAVY) v FINANCIAL SERVICES OMBUDSMAN & ORS 2008 2 ILRM 507 2008/30/6639 2008 IEHC 256

JUDICIAL REVIEW

Discretion

Delay - Alternative remedy available -Withholding information at ex parte hearing - Acquiescence defeats remedy -Galvin v Chief Appeals Officer [1997] 3 IR 240 followed; J & E Davy t/a Davy v Financial Services Ombudsman [2008] 2 ILRM 507 distinguished - Pensions Act 1990 (No 25), ss 138, 139 and 140 - Rules of the Superior Courts 1986 (SI 15/1986), O 84 - Order of certiorari refused (2010/292 JR - Hedigan J - 21/12/2010) [2010] IEHC 463

Star Homes (Midleton) Ltd v Pensions Ombudsman and Szeeds

Facts The applicant sought by way of judicial review. an order of certiorari, quashing the determination of the respondent directing that €69,850 be paid to the notice party, who was the widow of a former employee of the applicant company. The notice party's husband died on 19 November 2005. Following a complaint on behalf of the notice party regarding the refusal of the Construction Workers Pension Scheme to pay death in service benefits to the widow and defendants of the deceased, the respondent wrote to the applicant informing it that due to insufficient contributions paid to the pension scheme on behalf of the deceased, the applicant was solely liable for the equivalent of the death benefits. Correspondence passed between the applicant and respondent and issues arose regarding the length of service of the deceased and whether he resigned from his employed or was dismissed and on what date his employment terminated. The applicant contended that the deceased was not an employee at the date of his death and further that his employment commenced in June 2005. However, the respondent discovered from social welfare records that the deceased had been in the applicant's employment since June 2004. Prior to the release of the respondent's final determination the applicant had requested an oral hearing. That request was refused by the respondent. In these proceedings the applicant sought to quash the respondent's final determination on the basis that it was not afforded an oral hearing in circumstances where it alleged there were material facts in dispute which required an oral hearing to resolve. The respondent submitted that the applicant could more properly have raised that issue by way of appeal rather than by way of judicial review proceedings. An appeal had been lodged by the applicant. It was also submitted that the respondent legitimately exercised its discretion to refuse to hold an oral hearing and the final determination was made within jurisdiction. Furthermore, it was submitted that the applicant was not entitled to relief by reason of its failure, when seeking leave ex parte, to disclose to the court the fact that it was also brining a statutory appeal against the impugned decision.

Held by Hedigan J. in refusing the application: That respondent had a discretion regarding the holding of an oral hearing and in the circumstances of this case was entitled to take the view that the conflict surrounding the deceased's P45 was not such as to require him to hold an oral hearing. The applicant also failed to show that it had an explanation which required an oral hearing to adjudicate upon and having already made submissions to the respondent in writing, there was no breach of fair procedures by not holding of an oral hearing. In any event, the applicant's failure to make contributions to the scheme from June 2004 and the fact contributions were only made after the deceased died amounted to injustice and fraud which of itself would have disentitled the applicant to the relief sought. Furthermore, it would have been more appropriate for the applicant to bring its case by way of appeal rather than by way of judicial review. The applicant also acquiesced in the proceedings by waiting for the decision from the respondent before moving for judicial review and also failed in its duty of disclosure as required in an ex parte application.

Reporter: L.O'S.

1 Judgment of Mr. Justice Hedigan delivered the 21st day of December 2010.

1. Application

2 The applicant seeks an order of certiorari quashing the determination of the respondent dated 2 ^nd March, 2010, directing that €69,850 be paid to the notice party. The applicant also seeks a declaration that the determination was made in breach of natural justice and of Article 6 of the ECHR and is perverse and flies in the face of reason. Finally the applicant seeks an Order pursuant to Order 84 rule 26(4) remitting the matter back to the respondent.

2. Parties

3 The applicant is a limited liability company having its registered offices at Unit 20, Main Street, Midleton, County Cork and is in the construction business. The respondent is an independent authority, established pursuant to the Pensions Act 1990, charged with resolving complaints alleging financial loss occasioned by an act of maladministration and disputes of fact or law in relation to occupational pension schemes and personal retirement savings accounts. The first named notice party is the widow of Pawel Szeffs a former employee of the applicant company and the party whose death in service benefit was the subject of a complaint to the respondent.

Factual Background

4 3. The notice party's husband, Pawel Szeffs, a construction worker died 5 years ago, on 19 ^th November, 2005. He was an employee of the applicant for a year and a half prior to his death in November 2005. The applicant registered the deceased with the Construction Workers Pension Scheme on 9 ^th June, 2005, one year after he commenced working with them. The applicant made a total of twenty contributions to the scheme, these payments were made on dates between 24 ^th November, 2005 and 16 ^th January, 2006, i.e. subsequent to Mr Szeffs death. In order for a death in service benefit to be payable, 26 weeks of contributions must be paid. A complaint was made in a letter dated 8 ^th May, 2008, by Terrence Cosgrave Solicitors on behalf of Mrs Anna Szeffs with respect to the refusal of the Construction Workers Pension Scheme to pay death in service benefits to the widow and dependants of Mr Szeefs. Arising from this, the Pension Ombudsman wrote to the applicant company on 6 ^th October, 2008. He informed the applicant that because there were insufficient contributions paid to the pension scheme on behalf of the deceased, the applicant was solely liable for the equivalent of the death benefits, which in this case which amounted to €69,850.

5 The applicant company wrote back on 5 ^th December, 2008 and stated that Mr Szeffs joined the company on 9 ^th June, 2005, accordingly only 20 contributions had been paid by the time that Mr Szeffs was given his P45 on 18 ^th November, 2005. The applicant stated that Mr Szeff's family would not be entitled to the death in service benefit as he was not an employee at the time of the accident. The applicant stated that Mr Szeffs was sent to the tax office on 18 ^th November, 2005 and he was advised of the termination of his employment the week previously.

6 The Ombudsman had earlier discovered by obtaining social welfare records that the deceased had in fact been an employee of the applicant since 1 ^st June, 2004. On 20 ^th January, 2009, the Ombudsman wrote to the applicant pointing out that Mr Szeffs had in fact been employed by them since 1 ^st June, 2004, he queried their assertion to the contrary by reference to the class of PRSI that they had paid for him. On 12 ^th February, 2009, the applicant wrote to the respondent, on this occasion it was stated that Mr Szeffs resigned on 18 ^th November, 2005. On 16 ^th February, 2009, the Ombudsman wrote to the applicant asking them to reconcile as a matter of urgency their contention that Mr Szeffs was a sub-contractor prior to 9 ^th June, 2005, with documentary evidence to the contrary. On 6 ^th March, 2009, the applicant's solicitor stated that they were taking instructions on the issue of the extent to which Mr Szeffs may have been a sub -contractor prior to 9 ^th June, 2005. The letter also maintains that Mr Szeffs resigned on 18 ^th November, 2005 and states that if the applicant's honesty was being questioned in respect of same that an oral hearing would be necessary to resolve the issue.

7 In March, April and June 2005, the Ombudsman wrote to the applicants seeking documents and information. On 17 ^th June, 2005, the applicants stated that they had neither contract documents nor any documents relating to Mr Szeffs employment. There is some dispute between the parties as to a telephone conversation that took place on 1 ^st September, 2009, between an investigator of the respondent and a director of the applicant. The respondent claims that the director asked if the complaint could be put off until after a civil case brought by Mr Szeffs widow and indicated that if they lost that case they would liquidate. The...