In Lever, the Deputy Pensions Ombudsman ruled that a complaint made more than 20 years after the date on which the courts would have concluded that the claim was out of time was not one that was appropriate for him to investigate. However on the other hand in Ralph, the Pensions Ombudsman decided that a complaint made more than 20 years after the matters complained of was one that remained appropriate for him to investigate. This was in spite of the fact that had the claim been brought before the courts it would have been out of time.
Despite the apparent contradictions, there is much common ground in the reasoning in both decisions. Both cases are consistent with the view that members will be able, in appropriate circumstances, to bring claims long after the limitation periods that would trip them up in any court proceedings have expired.
Time limits for Pensions Ombudsman complaints
The Pensions Ombudsman can deal with complaints made:
- within three years of the matter complained of
- within three years of the date on which the complainant knew or ought reasonably to have known of the matters complained of
- outside these first two periods where he is satisfied that there are reasonable grounds for the complaint not having been made in those earlier periods and that the complaint is then made within such further period as he considers reasonable.
The decisions in Lever and Ralph
In Lever there were two complaints relating to the alleged failure by the employer to provide the complainant with his accrued benefits under a pension scheme and an individual pension arrangement set up by the employer. The Deputy Pensions Ombudsman was not persuaded to extend the time limit in relation to the first complaint (concerning the scheme) but he was prepared to extend the time limit for the second complaint although in the event he dismissed that complaint.
In coming to these conclusions the Deputy Pensions Ombudsman said that, as a general rule, he was unlikely to investigate a complaint which would be time barred if brought before a court. He was, however, willing to depart from this general rule in relation to the second complaint because that complaint was made only slightly after the relevant limitation period had expired and the surviving evidence was much more extensive than that in relation to the first complaint.
In Ralph, Mr Ralph complained that he had received poor advice from his employer leading him to transfer deferred benefits in a final salary occupational pension scheme to a personal pension. The events in question occurred in the mid-80's but the Pensions Ombudsman was not concerned by the fact that he was being asked to investigate a case that the courts would have found to be out of time. Unlike his Deputy, he did not think that his decision needed to be swayed at all by the limitation rules the courts would apply. He therefore looked at the position more generally and concluding that the company's ability to defend the claim was not prejudiced and, considering the relative prejudice as between the member and the employer were the claim to be struck out on limitation grounds, decided that the balance of the argument fell in favour of allowing the complaint to proceed. Having considered the substantive arguments the Pensions Ombudsman found in favour of the complainant.
Implications for trustees and employers
A number of important points emerge from the reasoning in these two determinations:
- There is unlikely, in the future, to be any presumption made by the Pensions Ombudsman or his Deputy that, because a complaint would be time barred if brought before the courts, they will not be able to deal with it. As the Ralph determination makes clear, while some of the policy reasons behind the court's limitation rules could influence the Pensions Ombudsman in the exercise of his discretion, trustees and employers cannot assume that old cases will automatically fail before the Ombudsman on limitation grounds.
- The key for trustees and employers will therefore be to identify prejudice to their defence of the claim which is greater than the prejudice the complainant will suffer if their complaint is not allowed to proceed.
- Examples of prejudice from the trustees/employers' perspective include:
- loss of evidence through faded memories or loss of contact with potential witnesses
- loss of relevant documents particularly where that arises from the destruction of documents in accordance with a legitimate document retention policy (this was a particularly important factor in the Lever case)
- loss of protections that might otherwise have existed through, for example, indemnities and exoneration clauses which no longer apply because of lapse of time, merger or scheme wind-up
- periods of inactivity by the complainant which may have led the company or the trustees to conclude that the complaint was no longer being pursued potentially exacerbating problems caused by loss of evidence or pre-existing protections
- where the cost of the remedy claimed would be material to the funding position of the scheme, an inability to recover the cost of the resulting additional liability to the potential prejudice of the wider membership.
- it will be important for trustees and employers to establish what sum is at stake for the member. The smaller that sum might be, the more inclined the Pensions Ombudsman might be to refuse to investigate an old claim. (This consideration helps to explain the reason the Deputy Pensions Ombudsman declined to investigate in the Lever case where the capital value of the benefits lost were only a few thousand pounds, but why the Pensions Ombudsman decided to investigate in the Ralph case where the pension was £76,000 per annum smaller than had originally been quoted)
- critical assessment of the evidence relied on by the complainant and the inferences to be drawn from it becomes very important in order to determine whether the complainant satisfies the evidential burden (the balance of probabilities). As the Pensions Ombudsman highlighted in the Ralph determination, simply establishing a possible scenario is not sufficient for a complainant to succeed. As the decision on the second complaint in the Lever case demonstrates, the Ombudsman's office may find it more acceptable to dismiss a complaint on the basis that the evidential burden has not been discharged than to dismiss it as being made out of time without substantive scrutiny.
In Ralph the Pensions Ombudsman justified the difference in his approach to limitation issues when compared with the courts' approach by noting the different statutory context within which he operates. In a sentence his immediate predecessors would very much identify with, he said:
"If Parliament had intended... precisely the same rules to apply as under the Limitation Act, it would have ensured that they did."
It may be that, in due course, this view will be tested on appeal but until then trustees and employers would be well advised to tackle old claims as vigorously as they would claims that are not time barred.