This case illustrates powerfully how the Pensions Ombudsman mechanism is failing to provide the protection for scheme members which Parliament intended, and is leaving complainants so frustrated.

General Limitations of the Ombudsman Process:

The Pensions Ombudsman inevitably has a conflict of interest between making the effort to investigate a complaint deeply and achieving a high throughput of cases using limited resources.  The conflict operates in the direction of not upholding complaints.  This is because complainants have strong reasons to give up when a determination is issued, and those complained about (the respondents) do not.  The complainant would be using his or her own money to take a case to the High Court; the respondents would not.  This imbalance of resources applies for all cases throughout the process leading up to a determination;  the respondents will normally have lawyers to make submissions to the Ombudsman, and the complainant will not.  The imbalance for class actions is particularly acute.  Class actions occur when a group of people in similar circumstances are affected by the the determination that is to be made.  Technically, the Ombudsman cannot consider class actions - only individuals can ask for a determination.  However, there are class actions in the sense that if one of the group had their complaint upheld then the respondents would be be unable to deny the same outcome to others in the group.  The imbalance for class actions is particular acute because the complainant will be judging whether pursuing the complaint is financially sensible for him or her as an individual, while the respondents will be motivated to "win" by considering cost over the whole group.

Case R00713 and the process:

Case R00713 was both a class action and subject to "fast-track".  Fast-track investigations are intended to use less resources than other investigations, and the resulting determinations are not normally published on the Ombudsman website.

The determination of R00713 is provided here and comment on it is provided here.

After you have read the comments you might well ask, whether you think the comments sound or not, "Why didn't the complainant make those points to the Ombudsman?".

The answer to that is that it would be pointless, given the way the Ombudsman regulations work.  A determination can only be challenged on the grounds that the Ombudsman has taken a wrong view of the law.  If the Ombudsman has addressed a different complaint than the one the complainant made, has got facts wrong, or failed to seek relevant facts, or used incorrect logic, then there is no way to challenge.  (One might think that since the regulations require the determination to contain reasons, a determination might be challenged on the grounds that no worthwhile reasons were given.  The Ombudsman thinks otherwise.)

The lack of appeal when facts are wrong is a significant bias.  If the determination says a pig is a cow then that pig is a cow for the purposes of the process.  This harms most the complainant, who will normally know far less than the respondents about what actually happened, and hence less able to prevent wrong "facts" appearing in the determination.

The lack of accountability by the Ombudsman is compounded by the secrecy of the communications during investigation.  However absurd the statements made by Ombudsman staff might or might not be, and however unwilling the Ombudsman staff might or might not be to listen to complainants, and however unfair the investigator might or might not be in showing the respondent what the complainant submits while not showing the complainant what the respondent submits, the public never knows.  This is particularly unsatisfactory for complainants subject to "fast-track" because the determination can rely (as in R00713) on references to documents that are kept secret.

Of course it is possible that every one of the Ombudsman's determinations represents justice for the complainant, despite the conflicts of interest, the imbalances, and the lack of accountability.  But it cannot be a surprise to anybody that complainants do not think Parliament's intentions are being fulfilled, particularly in the light of determinations like R00713.

AMIPP records its thanks to the scheme member who pursued this complaint.  It is through the efforts of those willing to question that scheme members obtain a fuller perspective on the attitudes of our Trust and of officialdom.