The Association of Members of
IBM UK Pension Plans (AMIPP)

This page updated 27 February 2011

Complaints

Feb 2011:

The Pensions Regulator is towards the end of his tenure and being more open about company failings.  This article illustrates the company that IBM is now keeping.  The Regulator has noticed the practice of calling benefits "enhanced" when nothing has been enhanced.  (See also forum message and its "previous" messages.)

October 2010:

The Way the Ombudsman Process is Meant to Work.

The Determination - What it Tells Us and What it Does Not.

Legal Questions. 

IBM2006 - what may have happened.

 


October 2008 - Determination R00713 added.


This section of the website contains material regarding some of the complaints that have been made against IBM and the Trustees.  See also the Westminster section, for some letters to MPs.

There are various approaches to complaining - this section mainly covers the Pensions Ombudsman mechanism.

Trust Law was developed over centuries when the interests of the benefactor and the beneficiary were well aligned.  It has not done so well in the situation where the sponsor (company) wants to give the impression of a good pension scheme without paying the corresponding contributions.  This has led to complaints.  The Internal Dispute Resolution mechanism, the Pensions Ombudsman and the Regulator have made Trusts and Companies more accountable for their actions but there is a gap between what scheme members (and Parliament?) think fair and what has proved legally enforceable.

[An Office of the Pensions Ombudsman (OPO) poll asked complainants:  "How satisfied were you with the independence and impartiality of the office?  More than twice as many were dissatisfied or very dissatisfied as were satisfied or very satisfied.  This accounting does not include people who felt that the OPO's refusal to investigate their case was for wrong reasons.   It does not include the many scheme members who felt they had cause for complaint but did not go to the Ombudsman because they judged that would not help.

Complaints naturally divide into those that refer only to the individual and those that affect a "class" of members.  The former category will be things like decisions on early retirement for medical reasons, or whether a marriage is deemed irretrievable for the purpose of deciding who gets a Dependant's/Spouse's pension.  The position is aggravated in the case of our Trust because the directions in the Trust Deeds are open to interpretation.  (Many schemes use more straightforward rules such as "If they are married and not divorced then the spouse gets the full spouse's pension".)

With trustee-directors and Pension Services making the sort of decisions normally made by vastly more experienced professionals in Divorce Courts, it is not surprising that there should be challenges.

In the class-complaint category are things like what is delivered for your AVC money, or whether scheme changes were justified.  In these cases, if the complainant's views are upheld the Trust would have to deliver more not only to the complainant but to all those in similar circumstances.  Challenges like this arise because it is not obvious what the agreement between the Trust and the member actually is.  The member will tend to emphasise the plain English statements made to them while the Trust will point to caveats like "If there is any difference
between this booklet and the [corresponding] legal documents (the Trust Deed and Rules, as amended from time to time) the Trust Deed and Rules will always be binding."

The potential for challenge is aggravated by the shambolic state of the Trust Deed and Rules.  The rules are written with counter-intuitive terminology [for example retirees are not "members" of the the C-Plan, they are only "past members"], they leave plenty of room for widely differing views of what they say, and they have multiple amendments that are not merged into the main document. [You are entitled to a copy and if you are careful to ask for the Deeds and their amendments you will get 12 documents, for the C-Plan.]

Scheme members will not necessarily know about complaints unless/until there is a Pensions Ombudsman determination.  AMIPP knows that the complainants in the following cases are willing to have their complaints discussed:

- There is a complaint of the class-action type that the Ombudsman will investigate, but has not yet, about what should be delivered as a pension bought with AVC money.  The complainant argues that since he paid the Trust upfront in full for the pension it is no business of the Company's to interfere with what is to be delivered.  

- There is a complaint that the Ombudsman is unwilling to investigate (because parts of it occurred several years ago) about the process by which a decision was made not to give a full spouse's pension to the spouse who is the complainant.  This is an individual complaint, although shortcomings in Pension Services processes could be a concern for us all.

- There is a complaint going through the IDRP process (June 2007) that the Trust's plans pay insufficient attention to the good practice described in the Code of Practice for installing Member Nominated Directors.

Most of what is below here refers to the 1999-2004 complaints.

Pursuing the 1999-2004 complaints is flogging a dead horse since the period for appealing the Ombudsman's Determination of those is past.  The issues relating the law, the Ombudsman's effectiveness, and the protection of scheme members remain current.

A High Court case bears on whether statements made by the trust&company can be enforced even when they are not supported by trust deeds.  The case shows that they can be, contrary to the Ombudsman decision in the IBM case that such statements were "not legally enforceable".  Here is the legal decision and AMIPP commentary.   

These links were added to this page when the Ombudsman reached his determination:

- The Ombudsman's Determination  First reaction.

- The Ombudsman's Determination  Second comments.

- The Ombudsman's Determination  An explanation.

- The Ombudsman's Determination  Why appeal?

- A link to the Ombudsman website  for zipped file.  K00516 is  the determination

- The Ombudsman's Determination  Comment on the full determination by paragraph.

 

A summary of the background is available here.  The legal context is important.

Complaints follow a well defined process - for more information about this, please see The Complaints Process.

A number of complaints are currently in process. We know about these:

Author Theme Stage reached
Mike Cawley an appeal to the consciences of those responsible with Ombudsman since August 2000
Alan Murphy that the Trustees supplied too little information regarding their intentions completed IDRP-2 (May), now with Ombudsman
Dave Mitchell that the transfers were illegal completed IDRP Stage 2 (May), now with Ombudsman
Brian Marks that the trustees were working to a wrong principle completed IDRP Stage 2 (June), now with Ombudsman

We know of a fifth complaint that is now under the jurisdiction of the Ombudsman. This concerns a potential retiree claiming he was misled when Havant closed. Since this complaint is less general than the others, the text is not available on this website.

Documents Available

The following documents are available - please note that some of them are quite large and you may find it more convenient to print down or save and read offline.

The earliest complaint, by Mike Cawley, is not available. To get that one you need to have a complaint of your own in mind. You may then ask OPAS for a copy so that you can judge whether your complaint is subsumed by Mike's.

Please note that these documents are not meant to be documents written by lawyers, they are the complainants' own words (after some review with peers). They are meant to fully show the nature of the complaint but they are not limiting on the Ombudsman who has further investigative powers available.

What Happens Next (As it looked in 2001 - see also the current situation)

The Independent Dispute Resolution Process (IDRP) on two of the complaints has completed. Assuming the IBM Trust response is that everything was done as it should be and in accordance with the deeds (the expected response) then the complaints will go to the Ombudsman. On average, complaints wait four months before being investigated and then there is seven months before an outcome. The Mike Cawley complaint has been in the office since August 2000. However, IBM is probably not a typical case.

Both Dave Mitchell and Brian Marks have requested that, since their complaints are at the same stage and are complementary (which OPAS agrees), they should be investigated together. Arguably it is perverse to disconnect them, akin to trying a suspect once on the forensic evidence and then again on the circumstantial evidence. On the other hand, it is procedurally simpler to take things serially and the Ombudsman's Office is leaning towards doing that.

We don't really know what the practical implications of disconnecting the Marks and other complaints will be. As far as we know, none of the other complainants have asked for joint consideration, so it does appear that the Ombudsman's Office will choose to process those separately after his decision on the Mitchell/Cawley (& possibly Marks) complaints.

While the complaints are with the Ombudsman the news about them will be slim. Information received by complainants during that time will be confidential and so will not be published here.

The Ombudsman's determination is not confidential and when available this will be published here. The Ombudsman may also publish his determination or a report of it.


Back to: Homepage