Regulator is towards the end of his tenure and being more open about
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.)
The Way the Ombudsman Process is
Meant to Work.
The Determination - What it Tells
Us and What it Does Not.
- 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.
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.
Office of the Pensions Ombudsman (OPO) poll asked complainants: "How
were you with the
independence and impartiality of the office?”
More than twice as
many were dissatisfied or very dissatisfied as were satisfied or
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
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
- 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
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.
Ombudsman's Determination Second comments.
Ombudsman's Determination An explanation.
Ombudsman's Determination Why appeal?
A link to the Ombudsman website for zipped file. K00516
is the determination
Ombudsman's Determination Comment on the full determination by
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
A number of complaints are currently in process. We know about
||Stage reached |
||an appeal to the consciences of those responsible
||with Ombudsman since August 2000|
||that the Trustees supplied too little information
regarding their intentions
||completed IDRP-2 (May), now with Ombudsman|
||that the transfers were illegal
||completed IDRP Stage 2 (May), now with Ombudsman|
||that the trustees were working to a wrong principle
||completed IDRP Stage 2 (June), now with
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.
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
The Independent Dispute Resolution Process
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.