213. I have referred to repeated requests by the Trustee. My investigation suggests that over recent years the Trustee has been active in pressing the case for discretionary increases. I am less certain whether the same can be said about the Trustee's performance in earlier times but, as I noted in paragraph 13, I am limiting my consideration to matters from 1995 onwards. The practice I have described in paragraph 105 and the following paragraphs can fairly attract the description used by three of the complainants in paragraph 106. In practical terms the power to decide what level of increase to provide rested with the Principal Employer and the practice at the time reflected where that economic power lay. The complainants might well have taken a different view had they been trustee-directors than those who held that position but that does mean that the latter acted unlawfully or with maladministration.

Another Straw Man.  The complainants did not claim that the trustee directors acted unlawfully or with maladministration on the grounds that some particular person would have done differently.  They did claim

a) That the trustees failed in their duty to use their discretion to propose increases for the purpose it was intended - to suggest proposals that matched IBM's commitment, in this case  "As in all compensation and benefit matters, we aim to compete favourably with the practice of other leading companies"

b) The commitment the Principal Employer had made in obtaining the members work should have taken precedence over the employer's financial self interest.  The unusually skewed balance of powers between the employer and the trustee made it especially important to recognise this.

Note the hint "I am less certain..." that if the Ombudsman had not fragmented our complaints and discarded pre-1995, then we would have stood a better chance.  Is that good news or bad news or just life?