Waging war on turpitude

PENSIONS HAVE often been described, rightly, as being among the most important financial issues that we will be called upon to resolve in our lifetimes. In old age, having enough to live on is critical.

That is why upwards of 22 million people are members of occupational pension schemes offered by their employers, from which they hope to benefit at retirement. But what happens if you have a complaint about how your scheme is run?

Stories of "fat cat" lawyers may frighten some victims from seeking justice on the grounds that the fees alone will bankrupt them. But there are alternatives to expensive High Court litigation.

In the pensions arena at least, people need not worry. The Pensions Ombudsman is ideal for people with budget pockets, as the service is free and consumer- friendly. Dr Julian Farrand, the Pensions Ombudsman, investigates and decides complaints and disputes concerning occupational pension schemes. He is independent and acts as an impartial adjudicator.

He certainly has plenty of subjects to work on: there are some 200,000 occupational pension schemes, all of which can face complaints against them which might then have to be investigated. Despite these huge figures, the number of complainants is relatively small: the annual report for 1997/98 shows that the number of new applications, which are not the same as complaints, is down to 2,840 as against 4,195 in 1996-97 and 3,639 the year before that.

Last year there were 1,386 actual complaints and/or disputes, of which 1,059 were resolved with the Ombudsman's help. This latter figure included 623 formal "determinations", rulings by the Ombudsman after a thorough investigation, compared to 384 the year before.

Primarily, the Pensions Ombudsman investigates complaints of maladministration by people responsible for the management of occupational pensions schemes. He also investigates dispute of fact or law concerning pensions schemes with trustees or managers or employers (but not other administrators).

Maladministration involves "bias, neglect, inattention, delay, incompetence, ineptitude, perversity, turpitude, or arbitrariness". It is not enough merely to disagree with a decision: the complainant must have reason to believe that the decision was not properly made or implemented. Disputes of fact or law usually arise incidentally to a complaint of maladministration without ending a separate investigation. The Pensions Ombudsman cannot investigate a complaint already subject to court proceedings or complaints about state social security benefits.

When you have a complaint you should first try to sort it out with the person responsible for the management of the pension scheme, using the internal dispute resolution procedure. If you are still not satisfied, you should first ask OPAS (the pensions advisory service) for help.

It is important to act quickly. Complainants must write to the Pensions Ombudsman within three years of the act or omission that they are disputing. If they did not or could know about the matter at that time, the three years run from the moment that they know or ought to have known. Time spent within the occupational scheme's internal dispute procedure is disregarded, as is time with OPAS.

There is no financial limit on the Pensions Ombudsman's potential compensation orders. The highest-ever award has been pounds 168m plus interest in September 1996, the highest in 1997-98 was pounds 30.79m, again plus interest, in August 1997, both cases brought by pension scheme members against a bus company they worked for.

Dr Farrand and the nature of his organisation have been the subject of controversy. Robin Ellison - of the legal firm Eversheds - says that while the Ombudsman is a "very talented and able individual", the structure of the organisation "is not designed to cope with tens of millions of pounds. It can result in both sides facing huge costs if they have to appeal."

However, Keith Wallace, of the solicitors Richards Butler, defends Dr Farrand: "High Court justice is a Rolls-Royce where the Ombudsman is a bicycle and is quite unfair for the Rolls-Royce judge to criticise the bicycle's engineering."

Most pension lawyers do not want the system changed, but a few would prefer two members drawn from industry.

One important point to note is that complaints concerning the sale of personal pensions are investigated by the Personal Investment Authority, the front-line financial services regulator, not the Pensions Ombudsman.

The Pensions Ombudsman: 0171-834 9144.

Stephanie Hawthorne is editor of Pensions World.