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OPDU Report 24
- May 2008
Among the most annoying things that an adult can say to a child are “My, haven’t you grown!” and “What do you want to do when you grow up?”. The response to the first will be at best a grunt. At worst it will be unprintable. The response to the second will never, while there are train drivers, models and pop stars in the world, be “an ombudsman”. And it is pretty unlikely to be “I want to work in pensions”. This is not a preamble to an article on how to become the pensions ombudsman, as I did last September. My career path, straggly and over-grown as it may be, is not interesting enough to merit an article in the OPDU Report. The point is that not only children, but many adults, would not know what an ombudsman is, or in particular that there is a pensions ombudsman. (In fact, some years ago a consumer survey revealed that more people had heard of the travel ombudsman than the pensions ombudsman – which might have been fine if there had actually been a travel ombudsman.) Readers of this piece will be significantly better informed about pensions than the average person. And they may well know something about the pensions ombudsman. The aim of this article is to supplement that knowledge with some gentle musings on the background to why the pensions ombudsman’s office behaves the way it does, and what might change in future. An ombudsman by any other name … All of these organisations, and the ombudsmen that followed, have different powers and are trying to achieve subtly different things. So anyone trying to define “ombudsman” in a way that covers all the holders of the name would quickly get into difficulties. But generally (and particularly in the UK, Ireland and many Commonwealth countries) whether dealing with government bodies or consumer matters, a fundamental principle is that ombudsmen provide or obtain just treatment for those who are at some sort of disadvantage – in circumstances where the playing field is, by its nature, uneven. And they do that by using informal investigative and inquisitorial powers. Unlike the Parliamentary Commissioner for Administration, the pensions ombudsman was actually called “ombudsman” in the primary legislation establishing the office.1 And the core of the jurisdiction is dealing with complaints of “injustice due to maladministration” which is taken straight from the legislation establishing the parliamentary ombudsman (sorry, “commissioner”). That approach was adopted deliber-ately in the face of a recommendation to establish a tribunal. But what follows that promising start in the legislation is in some respects quite unombudsmanlike. The statutory procedure to be followed owes more to tribunal processes than the informal investigative approach that an ombudsman might be expected to use. And it’s not just the processes that are more “tribunal” than “ombudsman”, it’s the powers too. Whereas the public sector ombudsmen can only make recommendations, the Pensions Ombudsman can make binding decisions; private sector ombudsmen tend not to bind the complainant, the pensions ombudsman does; decisions are subject to appeal on a point of law, unlike ombudsmen generally; the office is in some respects subject to oversight by the Tribunals Service - and the list goes on. There are reasons for all of these things. But throughout the lifetime of the office of pensions ombudsman there has been a tension between what the office-holder is called and his processes and powers. That tension has emerged most clearly in the decisions of the courts in dealing with appeals. Broadly, the effect of appeals has been to treat the pensions ombudsman as an inferior tribunal (“inferior” in the sense of subordinate rather than inadequate!), perhaps because that is the creature the courts most readily recognise from the pensions ombudsman’s appearance. A particular consequence is that the office’s processes, including the way in which we set out decisions, have tended towards greater formality than might otherwise have been the case. Whether that is a good thing is questionable. No country for old ombudsmen? I do not have the space to go into the statutory process fully here (and you would not have the inclination to read it if I did) but it includes:
All of this may be necessary in some cases, but is not essential to all. And in fact there are many cases that we already treat differently, for example by:
There is one aspect of our process that we do think is necessary but that, surprisingly perhaps, does not appear in the statutory requirements. We always let the losing party (and usually both parties) know what the outcome is likely to be, with reasons, to give them a chance to change our minds, before a final and binding determination is made. All change? In evolving we need to concentrate on having sufficiently flexible
processes to deal with cases in ways that suit the parties, rather
than suiting ourselves or the courts. On the subject of time taken, one particular problem over past years has been that the sheer volume of work has meant that many cases have taken too long to deal with. The office has made considerable progress with the backlog (including before I arrived in post, so I do not claim the credit). But increasing the flexibility of our processes will help stop cases taking a long time to deal with except where necessary. We also have to make sure that where possible we have the facilities to deal with people (whether scheme member or trustee) in the way they want to be dealt with. For many that will mean email. But presently our processes are designed to work best for the literate, articulate, possibly numerate person, used to dealing with “the authorities”. We need to think about how accessible we are. That includes being accessible to those with disabilities, or whose first language is not English. But it also includes being as accessible as possible to those who would not normally enter into prolonged written correspondence. Change in practice But, to speculate about some changes possibly worth testing, in some cases we might express a view of the likely outcome to one or both of the parties earlier and less formally than we presently do. In others, if the case does need a formal determination we could issue one on the understanding that the parties know and accept most of the facts. Then, instead of reciting what happened at length as we often do at present, we could summarise and then give a short, clear decision, with reasons. There are many other possibilities, of which these are only examples. No decisions have been made. We still have work to do in identifying and trialling different approaches, working with pension schemes and pension scheme members as we do so. Why bother? Only the most short sighted pension scheme manager would think like that. The vexatious complainant is not likely to be put off by bureaucracy – indeed many thrive on it. In fact needless complexity is just as likely to put off those who would genuinely benefit from explanation, mediation, or formal resolution. And it cannot be good for confidence in pension schemes in general, or for the running of an individual scheme in particular, to have unresolved complaints rattling about. Similarly, there is no benefit in sticking to legalistic formality in an individual case without considering the alternatives. Restricting the involvement of schemes in com-plaints to what is really necessary, and speeding up resolution will, in the end, save time and money. So any changes we make that make us more efficient and accessible should have matching benefits for scheme members and, significantly for readers of this article, help schemes provide a better service. Now that’s something all OPDU members should be interested in. Tony King |
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