The Pensions Ombudsman v CMG Pension Trustees Limited and CGI IT UK Limited (Court of Appeal) – 1 November 2023

The Court of Appeal has found that the Pensions Ombudsman (“TPO”) is not a “competent court” for the purposes of recouping overpayments. Where an overpayment is disputed by the member, trustees must apply to the County Court to enforce a TPO determination upholding the overpayment.

Background    

TPO has powers to determine questions of fact and law, and to conduct informal investigations into maladministration. TPO can generally only investigate complaints referred by a beneficiary or on their behalf. Any TPO determination or direction will be final and binding on the beneficiary/complainant and trustee/manager of the scheme, subject to an appeal on a point of law, and TPO’s determinations and directions are enforceable in the County Court.

Path to the Court of Appeal

In 2022, the High Court in CMG Pension Trustees Limited v CGI IT UK Limited considered, among other issues, the trustees’ ability to recoup overpaid benefits by reducing future pension instalments. It was accepted that recoupment fell within section 91 of the Pensions Act 1995 (“PA95”), which concerns set-off against pension benefits. In summary, the legislation permits trustees to recoup overpayments provided the following conditions are met:

• the amount deducted must not exceed the amount of the monetary obligation in question, or (if less) the value of the individual’s entitlement or accrued right
• the individual must be given a certificate showing the amount owed and its effect on their benefits under the scheme, and
• where there is a dispute as to the amount, the deductions must not be exercised unless the obligation in question “has become enforceable under an order of a competent court” (our emphasis) or in consequence of an award of an arbitrator.

In circumstances where the trustee is recouping sums by way of reduction to future benefit payments, rather than requiring a member to repay a certain amount, the judge felt it would be “unnecessary” for the trustee to obtain an order requiring the member to make a payment. Instead, it would be enough for a “court of competent jurisdiction” to make a declaration that the trustee is entitled to exercise its right of recoupment. Following the decision in Burgess v BIC UK Ltd, the judge found that TPO is not a competent court for these purposes. TPO brought an appeal on that point.

Judgment

The Court of Appeal considered the meaning of “competent court” used in section 91 of the PA95. This term is not defined in the legislation. The Court interpreted the legislation taking into account factors including the history of the wording used and the wider context, including the nature and extent of TPO’s jurisdiction and its functions. It found that, in this context, TPO is not comparable with a court. It was also significant that TPO’s jurisdiction is “one-sided”, unlike a court, because trustees can only bring complaints to TPO in certain circumstances.

In a case where TPO has determined a dispute about an overpayment, the Court decided that the phrase “has become enforceable under an order of a competent court” in the legislation means that “an order has been made by the County Court stating the amount of the overpayment and the extent and rate of set-off”. However, it would not be necessary to commence an action in the County Court or for that court to consider the merits of the underlying matter and make its own order.

Taking into account the rules governing the enforcement of TPO determinations in the County Court (the County Court (Pensions Ombudsman) (Enforcement of Direction and Determinations) Rules 1993/1978, and the Civil Procedure Rules), the Court of Appeal considered that the party wishing to enforce TPO’s determination or direction, which will normally be the trustees, should deliver a certified copy to the County Court. The County Court would then enforce it as if it had made the determination or direction itself.

Comment

Although this case adds a layer of complexity to the process for recouping overpayments given that a TPO determination is not sufficient of itself, the decision does give a clear route for trustees to get a binding decision.  An overpayment case will not need the case to be reheard by the County Court before it is enforceable. If the member disputes the amount of the overpayment and brings a complaint to TPO, and TPO finds that the overpayment can be recouped, trustees must get a County Court order to enforce the Ombudsman’s decision before making any deductions from future pension instalments. If the member does not dispute the amount of the overpayment, no order is needed.