Transcript Office of the Pensions Ombudsman Presentation to APLI and IIPM

Women and Pensions
The Impact of Ms. Murphy’s Law
Paul Kenny
Pensions Ombudsman
IWLA Conference, July 2009
What the Pensions Ombudsman Does
 Investigate complaints & disputes concerning
 Occupational pension schemes
 Personal Retirement Savings Accounts
 Trust RACs
Completely independent office/impartial adjudicator
 Can give financial redress
 to individuals where they have lost through
maladministration of a pension scheme or PRSA
 Can decide questions of fact or law
Powers
• To require production of information,
documents, etc (if not legally privileged)
• To examine witnesses, administer oaths
• To apply for Circuit Court Order to compel
• To State a case to the High Court
Lookback
• Lookback depends on when the event
happened:
– If before 28 April, 2003 to a date not more
than 6 years before the 2002 Act
• In effect, 13 April 1996
– If after 28 April 2003, either
• Six years from the event; or
• Three years from the date on which complainant
knew, or ought to have known….
Who can Complain?
 an actual or potential beneficiary
 a member or a former member of a scheme
 a surviving dependant of a member who has died
 a person claiming to be a member or a surviving
dependant
 a contributor to a PRSA or Trust RAC
 a personal representative of a member or contributor
 a widow or widower of a member or contributor who
has died
- A complaint may be made through a representative
Against Whom?
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Former / trustee
Former / employer
Former / PRSA provider
Other category to be prescribed- regs.
Regulations: “Administrator” includes persons
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Providing administration service
To whom S.59 duties delegated
Interpreting or applying scheme rules
To whom PRSA provider has delegated
 Regulations not amended for “registered
Administrator” (2009) – not required
What can they complain about?
• Maladministration (which can be hard to
define) in relation to a pension scheme,
PRSA. Etc
• Financial Loss as a result
BUT NOT
– Compliance with the Pensions Act (BOARD)
– Equal Treatment (Equality Tribunal)
– Most self-employed pensions and Disability
Plans (FSO)
Internal Disputes Resolution
 Complaint in writing to “Relevant Person”
 trustees (OPS/Trust RAC)
 Minister (Public Authority)
 Provider (PRSA)
 Determination in writing
 Conditions to be met
 Trustees can decide structure of IDR procedure
appropriate to scheme
 IDR result not binding
Exceptions and Waiver
• IDR not required if
– Scheme in Winding –up
– Complaint already heard by Pensions Board
– PO decides investigation appropriate AND
IDR not appropriate
• Process can be “exhausted within its
terms” after the expiry of the 3-month
deadline or such later date as PO decides
Investigations
• Preliminary Examination
• Lots of complaints outside Terms of
Reference
• Referrals to the Ombudsman, Financial
Services Ombudsman, Pensions Board,
DSFA Pensions, etc
• Decision on whether to go for full
investigation
Mediation – the Preferred Option
• Mediation is faster than full investigation/
determination
• Determination invariably means someone is
unhappy
• Many cases are closed by explanation
• Better communication would avert some of
these
Investigation Completed
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May give “Preliminary View”
Indicate likely conclusions
Invite all parties to comment – deadline
This may alter the course of the investigation
• Final Determination
– binding on all parties, subject to appeal to the High
Court within 21 days
Enforcement, appeals and Criminal
Prosecution
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One appeal dismissed in 2007
Two appeals ongoing….
One appeal “settled” - oddly
Prosecutions for obstruction of Investigations
Enforcement of orders to furnish information
Enforcement of Determinations
– complainant or Minister
Women and Complaints
• Only about 25% of complainants are
women
• Possibly because under-represented in
pension schemes generally
• -or because benefits not yet mature
Women and Complaints - 2
– Many complaints by women result from
previous discrimination:
• Late entry to schemes
• Exclusion on marriage in Public Sector
• Exclusion of part-timers, seasonal workers, fixedterm contract and temporary staff
– Employment and Pensions Legislation now
requires equal or pro-rata treatment
• Delays in implementation
• Maladministration
Maladministration
• Calculation and notification of cost of buy-back
• Failure to deal properly with spouses’/children’s
liability
• Failure to deal properly with purchase of added
years
• Delays in payment /administration of benefits
• “Abatement” of pension on return to employment
Dependants’ Benefits
• Mortality Benefits not available in CWPS
owing to non-remittance of contributions
• Impact of discretionary decisions
– “wishes” letters
• Pension Adjustment Orders – defects
– not just in contingent benefits
– Orders may not cover all benefits in public
service
– Interpretation –Relevant benefit in payment
Other Problems
• Discrimination in Social Welfare system
– Part-timers who contributed to a pension
scheme may get a lower unemployment
benefit!
– Because P60 earnings net of contribution
– Not intentional, result of drafting of regulations
• Non-Irish nationals and opt-out -can hit
dependants
• Treatment of “new entrants” to public
service
Not all complaints are serious
- to start with
• Some should never get to my office, but
escalate due to
– Poor communication – both ways
– Lack of knowledge
– Failure to take complaint seriously
• Example – woman regarded as on
“contract for services” – not employee
– Help from SCOPE Section
– Decision as a matter of fact
– Pension awarded
Complaint Handling
• How complaints are handled initially will dictate
where and how they finish up
• It’s important that the complainant feels s/he is
being taken seriously
• Failure to reply is disastrous
What Happens when a person
Complains?
• Does the Complaint Handler….
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Lend a sympathetic ear?
Attack the complainant?
Call in the PI Insurer?
Actually look for the facts?
Agree that s/he has a case?
Apologise?
Refer the complainant to IDR?
The Role of the Apology
• Remember that sometimes an apology is
enough
• Complainants need to feel they are being
listened to
• Failure of the scheme /administrator /trustee to
reply will escalate the problem
• People who feel they are not taken seriously
feel aggrieved
– And complain to an Ombudsman
– Or sue
Women
• Are slow to complain
• Are tenacious when they do
• Are slow to accept what they don’t
understand
• Are accepting of a reasoned
explanation
Office of the Pensions Ombudsman
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36 Upper Mount Street, Dublin 2
Telephone: 01 647 1650
Fax: 01 676 9577
Web; www.pensionsombudsman.ie
E-mail: [email protected]