Social Security Act 1990

“Part IVA The Pensions Ombudsman

59B The Pensions Ombudsman.

(1)

For the purpose of conducting investigations in accordance with this Part of this Act or any corresponding legislation having effect in Northern Ireland there shall be a commissioner, to be known as the Pensions Ombudsman.

(2)

The Pensions Ombudsman shall be appointed by the Secretary of State and shall hold office upon such terms and conditions as the Secretary of State may think fit.

(3)

The Pensions Ombudsman may at any time—

(a)

be removed from office by notice in writing given to him by the Secretary of State; or

(b)

resign his office by giving such notice to the Secretary of State.

(4)

The Secretary of State may make available such staff and other facilities as he thinks fit for the Pensions Ombudsman and any function of the Pensions Ombudsman, other than the determination of complaints made and disputes referred under this Part of this Act, may be performed by any member of that staff who is authorised for that purpose by the Pensions Ombudsman.

(5)

The Secretary of State may—

(a)

pay to or in respect of the Pensions Ombudsman such amounts by way of remuneration, compensation for loss of office, pension, allowances and gratuities, or by way of provision for any such benefits, as the Secretary of State may determine with the approval of the Treasury; and

(b)

reimburse him in respect of any expenses incurred by him in the performance of his functions.

(6)

The Pensions Ombudsman shall prepare a report on the discharge of his functions for the period ending with 31st March following the coming into force of this section, and for each subsequent financial year, and shall submit it to the Secretary of State as soon as practicable thereafter.

(7)

The Secretary of State shall arrange for the publication of each report submitted to him under subsection (6) above.

59C Functions of the Pensions Ombudsman.

(1)

The Pensions Ombudsman may investigate and determine any complaint made to him in writing by or on behalf of an authorised complainant who alleges that he has sustained injustice in consequence of maladministration in connection with any act or omission of the trustees or managers of an occupational or personal pension scheme.

(2)

The Pensions Ombudsman may also investigate and determine any dispute of fact or law which arises in relation to such a scheme between—

(a)

the trustees or managers of the scheme, and

(b)

an authorised complainant in relation to the scheme,

and which is referred to him in writing by or on behalf of the authorised complainant.

(3)

The Secretary of State may by regulations provide that, subject to any modifications or exceptions specified in the regulations, this Part of this Act shall apply in relation to—

(a)

the employer in relation to any description or category of employment to which an occupational pension scheme relates or has related, or

(b)

any prescribed person or body of persons concerned with the financing or administration of, or the provision of benefits under, any occupational or personal pension scheme,

as it applies in relation to the trustees or managers of such a scheme.

(4)

The Pensions Ombudsman may investigate a complaint or dispute notwithstanding that it arose, or relates to a matter which arose, before the coming into force of this Part of this Act.

(5)

The Pensions Ombudsman shall not investigate or determine a complaint or dispute—

(a)

if, before the making of the complaint or the reference of the dispute, proceedings have been commenced in any court in respect of the matters which would be the subject of the investigation;

(b)

if the scheme is of a description which is excluded from the jurisdiction of the Pensions Ombudsman by regulations under this subsection; or

(c)

if and to the extent that the complaint or dispute, or any matter arising in connection with the complaint or dispute, is of a description which is excluded from the jurisdiction of the Pensions Ombudsman by regulations under this subsection.

(6)

The persons who, for the purposes of this Part of this Act, are “authorised complainants” in relation to a scheme are—

(a)

a member of the scheme,

(b)

the widow or widower, or any surviving dependant, of a deceased member of the scheme;

(c)

where the complaint or dispute relates to the question—

(i)

whether a person who claims to be such a person as is mentioned in paragraph (a) or (b) above is such a person, or

(ii)

whether a person who claims to be entitled to become a member of the scheme is so entitled,

the person so claiming.

(7)

In this Part of this Act—

“employer”, in relation to a pension scheme, includes a person—

(a)

who is or has been an employer in relation to the scheme, or

(b)

who is or has been treated under section 66(3) below as an employer in relation to the scheme for the purposes of Part III or IV of this Act, or under Article 2(4) of the Social Security Pensions (Northern Ireland) Order 1975 as an employer in relation to the scheme for the purposes of Part IV or V of that Order;

“member”, in relation to a pension scheme, includes a person—

(a)

who is or has been in pensionable service under the scheme, as defined in paragraph 3 of Schedule 16 to the 1973 Act or paragraph 3 of Schedule 3 to the Social Security Pensions (Northern Ireland) Order 1975, or

(b)

who is or has been treated under section 66(4) below as a member in relation to the scheme for the purposes of Part III or IV of this Act, or under Article 2(5) of the Social Security Pensions (Northern Ireland) Order 1975 as a member in relation to the scheme for the purposes of Part IV or V of that Order;

“Northern Ireland public service pension scheme” means a public service pension scheme, within the meaning of Article 2(2) of that Order;

“trustees or managers”, in relation to a pension scheme which is a public service pension scheme or a Northern Ireland public service pension scheme, includes the scheme’s administrators.

59D Death, insolvency or disability of authorised complainant.

(1)

Where an authorised complainant dies or is a minor or is otherwise unable to act for himself, then, unless subsection (3) below applies—

(a)

any complaint or dispute (whenever arising) which the authorised complainant might otherwise have made or referred under this Part of this Act may be made or referred by the appropriate person, and

(b)

anything in the process of being done by or in relation to the authorised complainant under or by virtue of this Part of this Act may be continued by or in relation to the appropriate person,

and any reference in this Part of this Act, except this section, to an authorised complainant shall be construed as including a reference to the appropriate person.

(2)

For the purposes of subsection (1) above “the appropriate person” means—

(a)

where the authorised complainant has died, his personal representatives; or

(b)

in any other case, a member of the authorised complainant’s family, or some body or individual suitable to represent him.

(3)

Where a person is acting as an insolvency practitioner in relation to an authorised complainant, investigations under this Part of this Act shall be regarded for the purposes of the Insolvency Act 1986 and the Bankruptcy (Scotland) Act 1985 as legal proceedings.

(4)

In this section “acting as an insolvency practitioner” shall be construed in accordance with section 388 of the Insolvency Act 1986, but disregarding subsection (5) of that section (exclusion of official receiver).

59E Staying court proceedings where a complaint is made or a dispute is referred.

(1)

This section applies where—

(a)

a complaint has been made or a dispute referred to the Pensions Ombudsman; and

(b)

any party to the investigation subsequently commences any legal proceedings in any court against any other party to the investigation in respect of any of the matters which are the subject of the complaint or dispute.

(2)

In England and Wales, where this section applies any party to the legal proceedings may at any time after acknowledgment of service, and before delivering any pleadings or taking any other step in the proceedings, apply to that court to stay the proceedings.

(3)

In Scotland, where this section applies any party to the legal proceedings may—

(a)

if the proceedings are in the Court of Session, at any time—

(i)

after appearance has been entered but before defences have been lodged or any other step in the proceedings has been taken; or

(ii)

(in procedure by petition) after intimation and service but before answers have been lodged or any other step in the proceedings has been taken; and

(b)

if the proceedings are in the sheriff court, at any time—

(i)

after notice has been given of intention to defend but before defences have been lodged or any other step in the proceedings has been taken; or

(ii)

(in summary cause procedure) after appearance has been made, or notice of intention to appear has been lodged, but before any defence has been stated or any other step in the proceedings has been taken,

apply to the court for a sist of process.

(4)

On an application under subsection (2) or (3) above the court may make an order staying or, in Scotland, sisting the proceedings if it is satisfied—

(a)

that there is no sufficient reason why the matter should not be investigated by the Pensions Ombudsman; and

(b)

that the applicant was at the time when the legal proceedings were commenced, and still remains, ready and willing to do all things necessary to the proper conduct of the investigation.

(5)

For the purposes of this section the parties to an investigation are—

(a)

the authorised complainant in question;

(b)

the trustees or managers of the scheme in question;

(c)

any person against whom allegations are made in the complaint or reference; and

(d)

any person claiming under a person falling within paragraphs (a) to (c) above.

59F Procedure on an investigation.

(1)

Where the Pensions Ombudsman proposes to conduct an investigation into a complaint made or dispute referred under this Part of this Act, he shall afford to the trustees and managers of the scheme concerned, and any other person against whom allegations are made in the complaint or reference, an opportunity to comment on any allegations contained in the complaint or reference.

(2)

The Secretary of State may by statutory instrument make rules with respect to the procedure which is to be adopted in connection with the making of complaints, the reference of disputes, and the investigation of complaints made and disputes referred, under this Part of this Act.

(3)

The rules may include provision—

(a)

requiring any oral hearing held in connection with an investigation under this Part of this Act to take place in public, except in such cases as may be specified in the rules; and

(b)

as to the persons entitled to appear and be heard on behalf of parties to an investigation, as defined in section 59E(5) above.

(4)

Subject to any provision made by the rules, the procedure for conducting an investigation under this Part of this Act shall be such as the Pensions Ombudsman considers appropriate in the circumstances of the case; and he may, in particular, obtain information from such persons and in such manner, and make such inquiries, as he thinks fit.

59G Investigations: further provisions.

(1)

For the purposes of an investigation under this Part of this Act or under any corresponding legislation having effect in Northern Ireland, the Pensions Ombudsman may require any trustee or manager of the scheme concerned, or any other person who, in his opinion, is able to furnish information or produce documents relevant to the investigation, to furnish any such information or produce any such documents.

(2)

For the purposes of any such investigation, the Pensions Ombudsman shall have the same powers as the court in respect of the attendance and examination of witnesses (including the administration of oaths and affirmations and the examination of witnesses abroad) and in respect of the production of documents.

(3)

No person shall be compelled for the purposes of any such investigation to give any evidence or produce any document which he could not be compelled to give or produce in civil proceedings before the court.

(4)

If any person without lawful excuse obstructs the Pensions Ombudsman in the performance of his functions or is guilty of any act or omission in relation to an investigation under this Part which, if that investigation were a proceeding in the court, would constitute contempt of court, the Pensions Ombudsman may certify the offence to the court.

(5)

Where an offence is certified under subsection (4) above, the court may inquire into the matter and after hearing any witnesses who may be produced against or on behalf of the person charged with the offence, and after hearing any statement that may be offered in defence, deal with him in any manner in which the court could deal with him if he had committed the like offence in relation to the court.

(6)

To assist him in an investigation, the Pensions Ombudsman may obtain advice from any person who in his opinion is qualified to give it and may pay to any such person such fees or allowances as he may determine with the approval of the Treasury.

(7)

The Pensions Ombudsman may refer any question of law arising for determination in connection with a complaint or dispute to the High Court or, in Scotland, the Court of Session.

(8)

In this section “the court” means—

(a)

in England and Wales, a county court;

(b)

in Scotland, the sheriff.

(9)

Subsections (4) and (5) above shall be construed, in their application to Scotland, as if contempt of court were in Scots law categorised as an offence.

59H Determinations of the Pensions Ombudsman.

(1)

Where the Pensions Ombudsman has conducted an investigation under this Part of this Act, he shall send a written statement of his determination of the complaint or dispute in question—

(a)

to the authorised complainant in question; and

(b)

to the trustees or managers of the scheme in question;

and any such statement shall contain the reasons for his determination.

(2)

Where the Pensions Ombudsman makes a determination under this Part of this Act or under any corresponding legislation having effect in Northern Ireland, he may direct the trustees or managers of the scheme concerned to take, or refrain from taking, such steps as he may specify in the statement referred to in subsection (1) above or otherwise in writing.

(3)

Subject to subsection (4) below, the determination by the Pensions Ombudsman of a complaint or dispute, and any direction given by him under subsection (2) above, shall be final and binding on—

(a)

the authorised complainant in question;

(b)

the trustees or managers of the scheme concerned; and

(c)

any person claiming under them respectively.

(4)

An appeal on a point of law shall lie to the High Court or, in Scotland, the Court of Session from a determination or direction of the Pensions Ombudsman at the instance of any person falling within paragraphs (a) to (c) of subsection (3) above.

(5)

Any determination or direction of the Pensions Ombudsman shall be enforceable—

(a)

in England and Wales, in a county court as if it were a judgment or order of that court, and

(b)

in Scotland, by the sheriff, as if it were a judgment or order of the sheriff and whether or not the sheriff could himself have granted such judgment or order.

(6)

If the Pensions Ombudsman considers it appropriate to do so in any particular case, he may publish in such form and manner as he thinks fit a report of any investigation under this Part of this Act and of the result of that investigation.

(7)

For the purposes of the law of defamation, the publication of any matter by the Pensions Ombudsman—

(a)

in submitting or publishing a report under section 59B(6) or subsection (6) above, or

(b)

in sending to any person a statement under subsection (1) above or a direction under subsection (2) above,

shall be absolutely privileged.

59J Power to make special county court rules.

(1)

The Secretary of State may by statutory instrument make rules—

(a)

regulating the practice, and the forms of proceedings, which are to be followed in county courts in any proceedings under or by virtue of this Part of this Act; and

(b)

prescribing the scales of costs to be paid in connection with any such proceedings.

(2)

Without prejudice to the generality of subsection (1) above, rules under this section may to any extent, and with or without modifications, apply any county court rules to proceedings under or by virtue of this Part of this Act.”