This is an important case regarding the jurisdiction of the Pensions Ombudsman. The decision should be considered when dealing with a member's pension complaint and is a reminder that if proceedings in respect of a matter are underway in any court or employment tribunal, it should not be presumed that the Pensions Ombudsman does not have jurisdiction just because the facts are common. In summary, the High Court upheld an application that the Pensions Schemes Act 1993 does not prevent the Pensions Ombudsman from investigating a complaint merely because the matter is also before an employment tribunal where the employment tribunal is determining matters outside the purview of the Pensions Ombudsman.

Background

In Parish v Pensions Ombudsman (No.2) [2011] 044 PBLR – [2009] EWHC 969 (Admin), the issue for determination was whether section 146(6)(a) of the Pension Schemes Act 1993 ("the Act") had deprived the Pensions Ombudsman the power to investigate the complaint – even though the tribunal had made no findings on the claim for unfair dismissal – on the basis that those proceedings could have been "in respect of... matters" which were the subject matter of the complaint to the Ombudsman (see Parish v Pensions Ombudsman [2009] EWHC 32 (Admin)).

Decision of the High Court

Keith J held that:

"... It would be regrettable for the administration of justice if section 146(6)(a) of the Act had to be construed in a way which happened to result in Professor Parish being denied recourse to his preferred way of obtaining that to which he claims he was entitled. (4)

I do not believe, though, that section 146(6)(a) of the Act should be construed as having that effect. The Ombudsman's function is to investigate maladministration in connection with the management of pension schemes. In this case, the Ombudsman was being asked to investigate whether Professor Parish's employment had been terminated 'in the interests of the efficiency of the service in which he [was] employed'. That is to be contrasted with the issue which the Employment Tribunal had to consider on the second of Professor Parish's two claims in the Employment Tribunal. The Employment Tribunal had to decide whether Professor Parish's dismissal had been unfair. The question whether his dismissal had been unfair was not a matter which would be subject to investigation by the Ombudsman, since the subject of his investigation was to be whether Professor Parish's dismissal came within the rubric 'in the interests of the efficiency of the service' (5).

It is, of course, true that one of the factual issues which arises in both the second claim in the Employment Tribunal and complaint to the Ombudsman is what the true reason for Professor Parish's dismissal was. But the mere fact that there is a factual issue which is common to both proceedings in the Employment Tribunal and the investigation by the Ombudsman does not mean that 'the matter which would be subject of the investigation' by the Ombudsman had 'begun' in the Employment Tribunal. (6)"

Comment

The decision confirms that section 146 of the Act does not preclude the Pensions Ombudsman from investigating or determining a complaint if investigations in relation to the matter have already begun in an employment tribunal which have similar facts. Consequently, when dealing with a member's pension complaint, it will be appropriate to distinguish this case to ascertain whether the Pensions Ombudsman has jurisdiction. It should not be presumed that the Pensions Ombudsman's jurisdiction is ousted if proceedings have already commenced in any court or employment tribunal with similar factual issues. Finally, it is worth noting that the amount involved in this case was significant, approximately £674,000.