Willis and Others (Irish Blood Transfusion Service Superannuation Fund) v Pensions Ombudsman & Lawlor

JurisdictionIreland
JudgeKearns P.
Judgment Date22 July 2013
Neutral Citation[2013] IEHC 352
CourtHigh Court
Date22 July 2013

[2013] IEHC 352

THE HIGH COURT

[No. 250 MCA/2012]
Willis & Ors v Pensions Ombudsman
IN THE MATTER OF THE PENSIONS ACT 1990 AND IN THE MATTER OF AN APPEAL PURSUANT TO THE PROVISIONS OF SECTION 140 OF THE PENSIONS ACT 1990 (AS AMENDED)

BETWEEN

JOE WILLIS, PAUL KELLY, JOHN WALSH, GERRY O'DWYER, NESSAN RICKARD AND JOE CAMPBELL AS THE TRUSTEES FOR THE TIME BEING OF THE IRISH BLOOD TRANSFUSION SERVICE SUPERANNUATION FUND
APPELLANTS

AND

THE PENSIONS OMBUDSMAN
RESPONDENT

AND

EMER LAWLOR
NOTICE PARTY

FINANCIAL EMERGENCY MEASURES IN THE PUBLIC INTEREST (NO 2) ACT 2009 S2

FINANCIAL EMERGENCY MEASURES IN THE PUBLIC INTEREST (NO 2) ACT 2009 S3

FINANCIAL EMERGENCY MEASURES IN THE PUBLIC INTEREST (NO 2) ACT 2009 S1

BLOOD TRANSFUSION SERVICE BOARD (ESTABLISHMENT) ORDER 1965 SI 78/1965

FINANCIAL EMERGENCY MEASURES IN THE PUBLIC INTEREST (NO 2) ACT 2009 S3(2)

ULSTER BANK INVESTMENT FUNDS LTD v FINANCIAL SERVICES OMBUDSMAN UNREP FINNEGAN 1.11.2006 2006/56/11976 2006 IEHC 323

HAYES v FINANCIAL SERVICES OMBUDSMAN UNREP MACMENAMIN 3.11.2008 (EX TEMPORE)

HENRY DENNY & SONS (IRL) LTD T/A KERRY FOODS v MIN FOR SOCIAL WELFARE 1998 1 IR 34 2000/5/1750

PENSIONS ACT 1990 S131

PENSIONS ACT 1990 S139

INTERPRETATION ACT 2005 S5

UNITE THE UNION & GALLAGHER v MIN FOR FINANCE & ORS UNREP KEARNS 8.10.2012 2010/51/12718 2010 IEHC 354

Pensions law - Administrative law - Practice and procedure - Trustees - Public Servant - Reduction - Treatment - Public Body - Retiree - Fairness and Justice - Financial Emergency Measures in the Public Interest (No. 2) Act 2009

Facts: The appellants appealed against a determination of the respondent concerning the calculation of her pension entitlements. The appellants were the trustees of a pension fund for the Irish Blood Transfusion Service. The remuneration of the notice party was reduced by 15% in line with the Financial Emergency Measures in the Public Interest (No. 2) Act 2009 which provided for paycuts. The notice party retired after the Act became operational but before the relevant date of which impacted upon the definition of a public servant. She complained that she should have been disregarded for the purposes of the Act. It was alleged that the IBTS was not a public body.

Held by Kearns P in dismissing the appeal, that it was impossible to believe that there had been a radical departure from considerations of fairness and justice. The notice party had been treated appropriately and equally. The Court would only correct conclusions where there was a clear and serious legal error.

1

JUDGMENT of Kearns P. delivered on the 22nd day of July, 2013

2

This is an appeal brought by the appellants from a determination made by the respondent on a complaint made by Dr. Emer Lawlor, the notice party, concerning the calculation of her pension entitlements under the Irish Blood Transfusion Service (IBTS) pension scheme.

3

The appellants are the trustees of the pension fund and the notice party herein was employed by the IBTS from 1 st. December, 1988 until her retirement on 7 th October, 2011.

4

On or about 1 st January, 2010, the remuneration of the notice party was reduced by 15% in line with the Financial Emergency Measures in the Public Interest (No. 2) Act 2009 FEMPI (No.2). The relevant section (s. 2) provided, inter alia, that a "relevant provision", in this case a contractual provision, setting the remuneration of a "public servant" would be amended with effect from 1 st January, 2010.

5

However, s. 3 of the Act provided that pay cuts applied pursuant to s. 2 of the Act were to be disregarded in certain circumstances for persons retiring before a particular date for the purposes of calculating the pension entitlements of a person to whom s. 2 applied. The notice party, who retired after the Act came into operation but before the relevant date, claims she has been deprived of the benefit of that provision as a result of an adjudication made by the appellants. Her complaint was upheld by the respondent. The appellants, the trustees of the Irish Blood Transfusion Services Superannuation Fund, have appealed that determination to this Court on a net point of legal interpretation but have also sought to annul the decision of the respondent on the basis of a number of subsidiary matters arising from the manner in which he investigated and determined the matter.

LEGISLATIVE FRAMEWORK
6

Section 1 of FEMPI (No. 2) defines a "public servant" as:-

7

a "(a) a person who is employed by, or who holds any office or other position in a public service body"

8

Section 1 further defines what constitutes a public service body for the purpose of the Act as:-

9

a "(a) the Civil Service,

10

(b) the Garda Síochána,

11

(c) the Permanent Defence Force,

12

(d) a local authority for the purposes of the Local Government Act, 2001,

13

(e) the Health Service Executive,

14

(f) a vocational education committee established under section 7 of the Vocational Education Act 1930,

15

(g) a body (other than a body specified or referred to in the Schedule) establishd -

16

(i) by or under an enactment (other than the Companies Acts),or

17

(ii) under the Companies Acts in pursuance of powers conferred by or under another enactment, and financed wholly or partly by means of money provided, or loans made or guaranteed, by a Minister of the Government or the issue of shares held by or on behalf of a Minister of the Government, in respect of which a public service pension scheme exists or applies or may be made"

18

The IBTS was established pursuant to the Blood Transfusion Service Board (Establishment) Order 1965 ( S.I. 78 of 1965) and thus meets the definition of a public service body within the context of (g) above. The IBTS is not listed in the schedule to the Act.

19

Section 2 of FEMPI (No 2) provides:-

20

2 "(1) A relevant provision that fixes the remuneration, or any part of the remuneration, of a public servant shall be taken to have been amended, with effect on and from 1 January 2010, in accordance with this section.

21

(2) Where the remuneration of a public servant is fixed by a relevant provision, then, subject to subsections (3) and (4), the relevant provision shall be taken to have been amended so that the remuneration is -

22

(a) in the case of persons to whom Table 1 to this section relates, reduced in accordance with that Table, and

23

(b) in any other case, subject to subsection (7), reduced in accordance with Table 2 or Table 3 (as the case requires) to this section.

24

3 (3)Where the remuneration of a public servant, other than a person to whom Table 1 to this section relates, is fixed by a relevant provision and that remuneration includes a fixed periodic allowance which is not a reimbursement of any expense actually incurred, then the relevant provision that fixes each such allowance shall be taken to have been amended so that the allowance is, subject to subsection (7), reduced in accordance with Table 4 to this section.

25

(4) Subject to subsection (7), where a public servant is entitled as part of his or her remuneration to the payment of an allowance and the allowance -

26

(a) is not reimbursement of any expense actually incurred, and

27

(b) is expressed as a specified percentage or specified proportion of another part of the remuneration (referred to in this section, including the Tables, as "basic salary") of a public servant to whom the relevant provision applies, then the public servant's basic salary, for the purposes of calculating the amount payable as the allowance, is his or her basic salary reduced in accordance with subsection (2) and Table 2 or Table 3 (as the case requires) to this section.

28

(5) Nothing in this section affects any allowance or payment which is a reimbursement of an expense actually incurred.

29

(6) This section has effect notwithstanding -

30

(a) any provision by or under -

31

(i) any other Act,

32

(ii) any statute or other document to like effect of a university or other third level institution,

33

(iii) any circular or instrument or other document,

34

(iv) any written agreement or contractual arrangement,

35

or

36

(b) any verbal agreement, arrangement or understanding or any expectation."

37

Section 3 of the Act then provides:-

38

2 "(1) This section applies to-

39

(a) a person who was at some time before 31 December 2009 a public servant but is on 1 January 2010 in receipt of a pension or has a preserved benefit in a public service pension scheme, and

40

(b) a person who was a public servant on 1 January 2010, but ceases to be a public servant on or before -

41

(i) 31 December 2010, or

42

(ii) a later date specified by the Minister by order in accordance with subsection (3).

43

(2) The amendments taken to have been made by section 2 shall be disregarded for the purpose of calculating any pension entitlement (including an entitlement to a lump sum and an entitlement to periodic payments of pension) of a person to whom this section applies.

44

(3) For the purpose of making an order pursuant to subsection (1)(b)(ii), the Minister shall take into account such legal, superannuation and personnel management issues affecting public service bodies as he or she considers appropriate, and shall consult with any person or body that he or she considers appropriate."

45

The later date specified by Ministerial Order was 29 thFebruary, 2012. Upon her retirement in October 2011, the notice party's pension entitlements were calculated by reference to her reduced salary and thus the notice party contends that she was not afforded the protections provided for in section 3 (2) of the Act.

46

The notice party raised the issue with the appellants, arguing that same had been...

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7 cases
  • Baskaran v Financial Services
    • Ireland
    • High Court
    • 24 January 2019
    ...him.’ 46 In the context of an appeal from the Pensions Ombudsman, Kearns P., in the case of Willis & ors v. Pensions Ombudsman & anor [2013] IEHC 352 stated at pp. 30-31:- ‘A high threshold must be crossed by any appellant from a decision of a financial/pensions ombudsman. The Court has no......
  • Vidette Molyneaux v Financial Services and Pensions Ombudsman
    • Ireland
    • High Court
    • 19 November 2021
    ...of the High Court (Kearns P.) in Willis (Trustees of the Irish Blood Transfusion Service Superannuation Fund) v. Pensions Ombudsman [2013] IEHC 352 (at pages 30 to 32) where it was accepted that the relevant test was the same. This approach was endorsed by the High Court (Baker J.) in Depar......
  • The Minister for Education & Skills and Another v The Pensions Ombudsman and Another
    • Ireland
    • High Court
    • 16 July 2015
    ...made to the merits of the Pension Ombudsman's final determination in the within proceedings is that of Willis v. Pensions Ombudsman [2013] IEHC 352, in which Kearns P. dismissed an appeal against the merits of a decision of the Pensions Ombudsman. In his judgment, Kearns P. stated as follow......
  • Stowe v Financial Services Ombudsman
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    • 18 April 2016
    ...reluctance of these courts to set aside decisions of the FSO, the Stowes have, in the words of Kearns P. in Willis v. Pensions Ombudsman [2013] IEHC 352 (albeit that case was in the context of the Pensions Ombudsman), ‘a high threshold’ to cross in seeking to set aside the FSO's decision. 2......
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1 firm's commentaries
  • Willis And Others V The Pensions Ombudsman And Emer Lawlor
    • Ireland
    • Mondaq Ireland
    • 25 November 2013
    ...judgment of President Kearns in the case of Willis and Others v. The Pensions Ombudsman and Emer Lawlor [2013] IEHC 352 was delivered on 22 July 2013 in the High Court. In summary, the High Court rejected the appeal of the trustees (the "Trustees") of the Irish Blood Transfusion Service Sup......

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