The Minister for Education & Skills and Another v The Pensions Ombudsman and Another
| Jurisdiction | Ireland |
| Judge | Mr. Justice Max Barrett |
| Judgment Date | 16 July 2015 |
| Neutral Citation | [2015] IEHC 466 |
| Court | High Court |
| Docket Number | [2013/342 MCA] |
| Date | 16 July 2015 |
IN THE MATTER OF AN APPEAL FROM A DETERMINATION OF THE PENSIONS OMBUDSMAN
[2015] IEHC 466
Barrett J.
[2013/342 MCA]
THE HIGH COURT
Family law – S. 140 of the Pensions Act, 1990 – Appeal against the decision of the Pensions Ombudsman – fairness
Facts: The appellants sought an order to set aside the impugned determination of the respondent that the notice party should be paid the spousal benefits under her deceased husband's pension scheme, giving effect to the order of the High Court made after the notice party had been granted divorce from her husband. The appellants contended that the respondent had acted ultra vires his jurisdiction under s. 139 (1) of the Pensions Act, 1990
Mr. Justice Max Barrett refused to grant an order for setting aside the determination of the respondent. The Court held that the office of Ombudsman was different from an ordinary court as the Ombudsman had been given powers to set its own procedures and any challenge to the decision of the Ombudsman would have to meet a high threshold of raising a manifest error of law. The Court held that the respondent had acted in fairness while making the decision and the decision did not require any intervention.
In November 2003, Ms McDermott was granted a divorce by the Circuit Court from her since-deceased husband. Following an appeal concerning the ancillary arrangements made consequent upon that divorce, the High Court ordered, inter alia, on 4th December, 2003, that:
‘In the event that the plaintiff [Ms McDermott's ex-husband] dies a widower then the order in respect of the Pension adjustment order herein shall not have effect and the defendant is deemed to be the spouse of the Plaintiff for the purposes of a spouses pension entitlements under the plaintiff pension scheme…’.
In short, if Mr McDermott died first, and he was a widower on his death, then Ms McDermott was to be paid the spousal benefit payable under her husband's pension scheme.
Mr McDermott, regrettably, died on 17th September, 2009, and was at that time a widower. On 12th November, 2009, Ms McDermott requested payment of her spousal pension. This was declined. On 26th May, 2010, Ms McDermott made complaint to the Pensions Ombudsman. On 6th July, 2010, the Ombudsman made his first determination favouring Ms McDermott. On 24th October, 2011, the High Court remitted the first determination to the Pensions Ombudsman for fresh consideration. On 8th October, 2013, the Ombudsman made a second determination in favour of Ms McDermott.
The last-mentioned final determination is a detailed document which had the effect that a spousal pension fell to be paid to Ms McDermott back-dated to the day after her late ex-husband died. The within proceedings commenced on 19th December, 2013, and were, no doubt, an unwelcome Yule-time present for Ms McDermott.
In broad terms, the appellants contend as follows in the within appeal. First, that the Pensions Ombudsman has acted ultra vires in directing the award of a pension in alleged contravention of s.17 of the Act of 1996. Second, that the respondent has acted ultra vires in his statutory jurisdiction, as provided for in s.139(1) of the Pensions Act, 1990. Third, that the respondent has acted ultra vires in making a finding of maladministration which is not supported by the evidence. Section 17 of the Act of 1996 is concerned with the issue of pension arrangements consequent upon divorce. Section 139(1) of the Pensions Act, 1990, empowers the Pensions Ombudsman to make determinations, to give such directions as he considers necessary or expedient for the satisfaction of a complaint or the resolution of a dispute, and makes certain related provision. Mention is made in the outline written submissions that the Pensions Ombudsman also did not conform with certain time requirements applicable under s.131(4) and (5) of the Pensions Act 1990. This last ground of contention was not pursued at the hearings; however, it appears in any event to be a procedural issue that, for the reasons outlined later below, the court considers the appellants cannot now rely upon due to acquiescence and/or estoppel.
Before proceeding further, a brief excursus on the nature of the role and jurisdiction exercised by the Pensions Ombudsman is required.
The role of the Pensions Ombudsman is to act as an independent and impartial medium for the resolution of complaints alleging financial loss occasioned by an act of maladministration and of disputes of fact or law in relation to occupational pension schemes and Personal Retirement Savings Accounts (PRSAs).
It is clear from the Pensions Act, 1990, as amended, that the Pensions Ombudsman is entitled to set his own procedures. (As the present Pensions Ombudsman is a man, the court will use the masculine form throughout this judgment; clearly a woman could be an Ombudsman). Section 138 of the Pensions Act 1990, as amended, provides that:
‘Subject to the provisions of this Part and regulations thereunder, the procedure for the making of complaints, the reference of disputes, and the conduct of investigations under this Part shall be such as the Pensions Ombudsman considers appropriate in all the circumstances of the case, and he may, in particular, obtain information from such persons and in such manner, and make such enquiries, as he thinks fit.’
In Square Capital v. Financial Services Ombudsman (Unreported, High Court, 27th August 2009), McMahon J. observed, at p.7 of his judgment, in respect of the Financial Services Ombudsman that ‘From reading these statutory provisions and from a consideration of the functions, powers and flexible procedures mandated by the Act, it is obvious that the office of Ombudsman is different from an ordinary court discharging its lawful functions.’ McMahon J. continues, at pp.8–9 of his judgment:
‘[I]t is important to fully appreciate the role of the Ombudsman when a court such as this is considering an appeal from his decision. Clearly, an appeal to this Court from the Ombudsman's decision is not a full rehearing of the case where the Court looks afresh at all material and comes to its own conclusion as to what it would have done in the circumstances. The appeal, where, while having some of the characteristics of the traditional judicial review, including some deferential recognition for the expertise of the Ombudsman, will also have to bear in mind the nature and functions of the Financial Services Ombudsman as laid down by the Oireachtas.’
As it is with the Financial Services Ombudsman, so too, it would seem to follow by analogy, it is with the Pensions Ombudsman. Thus it does not behove the court to review the Pension Ombudsman's final determination as though it were reviewing the procedures of a lower court. Nor should the court apply the same standards of procedure as it would to a court. Though neither, of course, is a judge required to leave wit with wig back in chambers: such task as now remains to the court does not entail a wholesale abandonment of the judicial role, nor does case-law suggest this to be required.
Section 140 of the Pensions Act, 1990 , as inserted by s.5 of the Pensions (Amendment) Act, 2002, provides as follows:
‘(1) A party to an investigation before the Pensions Ombudsman under this Part may appeal to the High Court from a determination of the Pensions Ombudsman within 21 days from the date of the determination.
(2) The High Court, on the hearing of an appeal under this section may, as it thinks fit, annul the determination concerned, confirm the determination or confirm the determination subject to such modifications as it considers appropriate.’
The court does not propose to recite the familiar “holy trinity” of High Court cases – Ulster Bank, Hayes and Orange– to which the court is so often referred when it comes to this area of the law, and which, since the recent judgment of the Court of Appeal in Financial Services Ombudsman v. Millar [2015] IECA 127, now carry the imprimatur of that court. (The reader is referred to: the decision of Finnegan P. in Ulster Bank v. Financial Services Ombudsman [2006] IEHC 323 at p.9; the decision of MacMenamin J. in Hayes v. Financial Services Ombudsman and Others (Unreported, High Court, 3rd November, 2008); and the judgment of Keane C.J. in Orange Telecommunications Limited v. The Director of Telecommunications Regulation & Anor. [2000] 4 I.R. 159 at p.184 (as applied in Ulster Bank by Finnegan P.)).
Some consideration of the recent decision in Millar is perhaps merited. That was a successful appeal from a decision of the High Court (Hogan J.) in which a meaning had been ascribed by Hogan J. to a particular clause in a set of consumer banking terms and conditions; his interpretation differed from the meaning ascribed the same clause by the Financial Services Ombudsman. In his judgment for the Court of Appeal, Kelly J. indicates as follows, at paras.27–38 of his judgment:
‘27. A survey of the case law which has built over the years on appeals to the High Court from the Ombudsman demonstrates a rather deferential attitude on the part of the courts….
33. I am of the view the [deferential] approach identified in the decisions just cited is the correct one. Indeed, I do...
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