Injury scheme members no longer have an ombudsman – TPO
Image: Alex Segre/Shutterstock
Pardon the Interruption
This article is just an example of the content available to mallowstreet members.
On average over 150 pieces of new content are published from across the industry per month on mallowstreet. Members get access to the latest developments, industry views and a range of in-depth research.
All the content on mallowstreet is accredited for CPD by the PMI and is available to trustees for free.
Injury compensation schemes are not occupational pension schemes, the Court of Appeal decided last year, which means the Pensions Ombudsman may no longer be able to deal with complaints relating to such schemes. Ombudsman Dominic Harris has now raised the issue with the Work and Pensions Committee.
Harris highlighted the issue in a letter to Debbie Abrahams MP on 12 June, explaining the likely impact of the Court’s 2024 ruling in Nicola Clark & Michael Bell v the Chief Constable of Derbyshire, Chief Constable of West Midlands Constabulary & the Secretary of State for the Home Department.
In the case, the Court of Appeal upheld an Employment Appeal Tribunal judgment from October 2023, in which Mrs Justice Eady said that “the benefit in issue is not funded by the police pension scheme and does not depend upon membership of that scheme. It is, moreover, part of a scheme established by national legislation, which does not (as I have found) fall within the relevant domestic definition of an ‘occupational pension scheme’”.
TPO’s jurisdiction is limited to complaints about occupational or personal pension schemes. It has historically dealt with complaints related to a number of public sector injury compensation arrangements, such as those for police officers, Harris told Abrahams. The Clark case now means TPO may no longer be able to do so.
“Applying the court’s decision is likely to mean that many statutory public sector injury benefit/compensation schemes are outside TPO’s jurisdiction. This would result in us needing to reject or discontinue up to 60 cases already with us,” Harris wrote. “In turn, that would mean that some individuals will not have access to any ombudsman, and will only be able to bring complaints before the courts (with the attendant cost risk that entails).”
TPO has taken advice from leading counsel to ensure it is applying the Clark judgment correctly and is now considering that advice.
“Naturally, we are also liaising with the DWP on this issue and keeping them updated as we develop our position,” Harris said.
It is unclear if MPs would propose an amendment to the pension schemes bill whereby TPO would be given jurisdiction to deal with complaints relating to injury benefit schemes.
The DWP could potentially legislate but may not want to get in the habit of creating statutory overrides, having already pushed back against a judgment that found TPO is not a ‘competent court’ for ordering the recoupment of overpaid pensions. It is also planning to make use of a power to retrospectively override the requirement for an actuary’s confirmation where contracted-out schemes had amended their rules, because the Virgin Media v NTL case would have otherwise led to higher liabilities for some sponsors.
Harris highlighted the issue in a letter to Debbie Abrahams MP on 12 June, explaining the likely impact of the Court’s 2024 ruling in Nicola Clark & Michael Bell v the Chief Constable of Derbyshire, Chief Constable of West Midlands Constabulary & the Secretary of State for the Home Department.
In the case, the Court of Appeal upheld an Employment Appeal Tribunal judgment from October 2023, in which Mrs Justice Eady said that “the benefit in issue is not funded by the police pension scheme and does not depend upon membership of that scheme. It is, moreover, part of a scheme established by national legislation, which does not (as I have found) fall within the relevant domestic definition of an ‘occupational pension scheme’”.
TPO’s jurisdiction is limited to complaints about occupational or personal pension schemes. It has historically dealt with complaints related to a number of public sector injury compensation arrangements, such as those for police officers, Harris told Abrahams. The Clark case now means TPO may no longer be able to do so.
“Applying the court’s decision is likely to mean that many statutory public sector injury benefit/compensation schemes are outside TPO’s jurisdiction. This would result in us needing to reject or discontinue up to 60 cases already with us,” Harris wrote. “In turn, that would mean that some individuals will not have access to any ombudsman, and will only be able to bring complaints before the courts (with the attendant cost risk that entails).”
TPO has taken advice from leading counsel to ensure it is applying the Clark judgment correctly and is now considering that advice.
“Naturally, we are also liaising with the DWP on this issue and keeping them updated as we develop our position,” Harris said.
It is unclear if MPs would propose an amendment to the pension schemes bill whereby TPO would be given jurisdiction to deal with complaints relating to injury benefit schemes.
The DWP could potentially legislate but may not want to get in the habit of creating statutory overrides, having already pushed back against a judgment that found TPO is not a ‘competent court’ for ordering the recoupment of overpaid pensions. It is also planning to make use of a power to retrospectively override the requirement for an actuary’s confirmation where contracted-out schemes had amended their rules, because the Virgin Media v NTL case would have otherwise led to higher liabilities for some sponsors.
