ICSA consultation: The practice of minuting meetings – Sackers’ response to consultation

Background

The Governance Institute is consulting on draft guidance on the practice of minuting meetings. Although not specifically aimed at pension scheme trustees, the guidance will be relevant to trustee boards which are established as companies under one of the Companies Acts.

In this response

• Respondent information
• General comments
• Level of detail: documenting reasons for decisions

Respondent information

Sackers is the UK’s leading law firm for pension scheme trustees, employers and providers. As a specialist practice working exclusively in the pensions industry, everything the firm does is geared towards advising clients in relation to pensions.

Sackers advises over 500 occupational pension schemes across all industry sectors and across all sizes and structures. Around 75% of the firm’s appointments are as advisers to trustees and Sackers acts for more of the UK’s top 100 pension funds than any other law firm.  Sackers retains key scheme sponsor appointments too, both on an ongoing and project basis.

The views expressed in Sackers’ response to this consultation have been collated following discussions with some of the firm’s solicitors.

General comments

Many pension scheme trustee boards are set up as companies. As such, they are required to comply with the relevant company legislation, as well as specific pensions legislation and codes of practice and guidance produced by the Pensions Regulator.

Under section 49 of the Pensions Act 1995 and the Occupational Pension Schemes (Scheme Administration) Regulations 1996 (SI 1996/1715) (the Scheme Administration Regulations), pension scheme trustees are required to keep records of their meetings. As record keeping forms a key part of trustees’ internal controls procedures, the Pensions Regulator has published guidance designed to help trustees, setting out an approach that it considers to be good practice.

We agree with the general approach proposed in the guidance. In this response, we outline some observations based on our experience of advising pension scheme trustees. We do not seek to answer all of the questions in the consultation.

Level of detail: documenting reasons for decisions

The consultation notes that the level of detail to be included in meeting minutes is one of the most contentious issues. For pension scheme trustees, this is also an area where care is needed.

The consultation states that “minutes should document the reasons for the decision and include sufficient background information for future reference – or, perhaps, for an absent board member to understand why the board has taken the decision it has”.

There is no statutory requirement for trustees to disclose the minutes of their meetings or the reasons for their decisions. Although the courts are generally supportive of trustees not giving reasons, the Pensions Ombudsman has in some cases taken a different view. For example, in the decision in a complaint brought by Mr C Allen v TKM Group Pension Trust Limited, the Ombudsman stated that, “[A]s a matter of good administrative practice trustees should provide reasons for their decisions to those with a legitimate interest in the matter and, subject to the need to preserve rights to privacy of individual members, should also make the minutes of their meeting available to scheme members”. If trustees fail to do so, it may be considered maladministration.

However, there may be legitimate reasons why pension scheme trustees choose not to detail the reasons for certain decisions in their minutes. For example, some decisions will relate to individual scheme members and may have involved the review of sensitive personal data. This happens in relation to the exercise of a trustee board’s discretion when considering the distribution of death benefits which are due under a scheme’s rules or the award of ill-health benefits. Other scheme-wide decisions may involve the consideration of commercially sensitive information.

In practice, the extent to which trustees record their decisions will depend on the facts in each particular case. What is key, is that trustees should consider their reasons for making a decision in relation to a particular matter and take all steps that are appropriate to enable them to reach that decision. They should also be able to demonstrate that they have taken the relevant steps in their decision making process. As such, and particularly when making momentous decisions about a scheme and its members (for example, a bulk transfer out of members), trustees may wish to outline the various factors that they have considered in reaching their decision and the outcome, rather than the intricate details of the decision itself or the weight ascribed by the trustees to each of those factors. We are of the view that pension scheme trustees should remain free to document their decisions in this way.