The Office of the Pensions Ombudsman was first established in 2003 under the Pensions (Amendment) Act, 2002. According to the Ombudsman’s most recent annual report, over the past 10 years the Office has received approximately 10,000 queries and opened over 5,000 detailed complaint files. In 2012 alone, 601 new complaint files were opened representing an increase of 24% on the files opened in 2011.
Under the Pensions Act, 1990, any party who disagrees or disputes the Ombudsman’s determination of the investigation is entitled to bring an appeal to the High Court within 21 days of the determination. In line with the increase in the number of complaints being made to the Ombudsman, we are also seeing an increase in the number of appeals being brought to the High Court against his determinations. Most recently the trustees of the Irish Blood Transfusion Service Superannuation Fund appealed a determination of the Ombudsman in the case of Willis & Ors v Pensions Ombudsman and anor.
In that case, the President of the High Court, Mr Justice Kearns, made the following points:
- a high threshold will be imposed on any person seeking to appeal a determination of the Pensions Ombudsman. The relevant test is the same as that set out in the case of Ulster Bank v. Financial Services Ombudsman i.e. the appellant must establish as a matter of probability that, taking the adjudicative process as a whole, the decision reached was vitiated by a serious and significant error or a series of such errors;
- in applying the above test, the Court will have regard to the degree of expertise and specialist knowledge of the Ombudsman and will apply a deferential standard;
- any appeal against a determination of the Ombudsman is limited and is not a full de novo hearing; and
- only in exceptional circumstances will the Court be willing to allow the introduction of fresh evidence which was not originally before the Ombudsman.
The trustees had put forward the argument that where an appeal is on a pure issue of law, the Court will always have greater expertise and, therefore, no obligation for the Courts to defer to the greater expertise of the Ombudsman (the principle of curial deference) should arise. However, this argument did not find favour with the Court.
Mr Justice Kearns’ view was that the Court should only step in to set aside the conclusions of the Ombudsman (being those of an expert in the area) where a clear and serious legal error could be demonstrated. As no such error was demonstrated in this case, the trustees’ appeal was dismissed. Mr Justice Kearns also expressed the view that while the Ombudsman could not, regardless of the merits of the case, legitimately make a decision which the law did not permit, the Ombudsman does enjoy a significant discretion to allow and achieve a fair outcome in relation to a complaint.
Following this decision, any party considering appealing a determination of the Ombudsman will need to ensure that they can show that the Ombudsman made a clear and serious legal error in his determination if they are to stand any chance of overturning the Ombudsman’s determination.