The court system in England and Wales is generally adversarial rather than inquisitorial – meaning that if a party wants a point considered by the court the onus is on him to raise the issue himself (or to rely on his lawyer to do so on his behalf). The Pensions Ombudsman’s jurisdiction is different – he is charged with “investigating and determining” the complaints and disputes brought before him. This difference has recently been illustrated in the case of Mr Grievson where the High Court remitted the complaint back to the Ombudsman for consideration of an issue not expressly raised before him.
The Ombudsman had not upheld Mr G’s original complaint concerning a transfer payment as he found that although some mistakes had been made Mr G had in fact received more than his legal entitlement. Mr G appealed. The High Court considered that the Ombudsman should have considered an estoppel argument in addition to the strict legal entitlement. Although Mr G had not expressly raised estoppel he had claimed that the transfer he was given did not accord with previous indications given to him. The High Court considered that as Mr G was not legally represented the Ombudsman should give him “generous allowance” – sufficient allegations had been made to raise the question of estoppel (albeit not using the precise term) and the Ombudsman should have taken the initiative and investigated it.