Use of the Fund
190. Whether the Principal Employer was entitled to make its contributions to the M Plan from surplus funds in 1997 is not clear-cut. Rules 1(1)(a) and Rule 1(2) of Schedule C to the 1997 deed are not easily reconciled. The 2000 amendment makes the position clearer. I accept that the 2000 amendment does not have retrospective effect but it does in my view lend substance to the view that the earlier intention was to allow for the contributions to be funded in that way. Even if I were to take the view that prior to 1997 there was no such authority, I doubt whether the net effect would have been different. If contributions had not been taken, the surplus would have been larger with a high probability of the contributions holiday being extended beyond 2002.
 

Dave Mitchell argued on the issue that is "not clear-cut".  Here the Ombudsman says that he leans to one position but does not have to decide because he can predict the alternative world in which transfers were not allowed and in that world the "net effect" would be the same as occurred in reality.   He notes that the surplus would have been larger but does not address the question of a significant statutory surplus, which the  complaints asked him to (in year 2000 complaints).  (If a statutory surplus arose that needed to be resolved it is hard to see how that could be done without pension increases.)