Pensions (Amendment) Act, 2002

PART 3

Pensions Ombudsman

Insertion of Part XI in Principal Act.

5.—The Principal Act is amended by the insertion of the following Part after Part X (inserted by this Act):

“PART XI

Pensions Ombudsman

Interpretation (Part XI).

126.—(1) In this Part—

‘actual or potential beneficiary’ means a member, an external member, any person who has been a member, any surviving dependant of a deceased member, any person claiming to be a member or a surviving dependant of a deceased member, a contributor to a PRSA, a personal representative of a deceased member or deceased contributor or a widow or widower of a deceased member or deceased contributor;

‘civil servant’ has the meaning assigned to it by the Civil Service Regulation Act, 1956 ;

‘dependant’ means a dependant within the meaning of the rules of the scheme in question;

‘establishment day’ means the day on which section 5 of the Pensions (Amendment) Act, 2002, commences;

‘party’ in relation to a complaint or reference under this Part, means—

(a) a person by whom, or on whose behalf, the complaint or reference was made,

(b) a person responsible for the management of the scheme or PRSA to which the complaint or reference relates;

‘superannuation benefit’ means a pension, gratuity or other allowance payable on resignation, retirement or death.

(2) In this Part, references to an act include references to an omission and references to the doing of an act include references to the making of an omission.

(3) For the purposes of this Part, the following persons shall be deemed to be responsible for the management of an occupational pension scheme:

(a) any trustee of the scheme;

(b) any former trustee of the scheme;

(c) any employer to whom the scheme relates;

(d) any former employer to whom the scheme relates; or

(e) such other person or category of persons as may be prescribed.

(4) For the purposes of this Part, the following persons shall be deemed to be responsible for the management of a PRSA:

(a) any provider;

(b) any former provider;

(c) any employer;

(d) any former employer; or

(e) such other person or category of persons as may be prescribed.

Establishment of Pensions Ombudsman.

127.—On the establishment day there shall stand established the office of Pensions Ombudsman and the holder of the office shall be known as the Pensions Ombudsman.

Appointment of Pensions Ombudsman.

128.—(1) The Pensions Ombudsman shall be appointed by the Minister and, subject to the provisions of this Act, he shall hold office on such terms and conditions as the Minister may, with the consent of the Minister for Finance, determine.

(2) A person appointed to be the Pensions Ombudsman whose term of office expires by effluxion of time shall be eligible for reappointment as the Pensions Ombudsman.

Term of office of Pensions Ombudsman.

129.—(1) Subject to the provisions of this section, a person appointed to be the Pensions Ombudsman shall hold office for a term of 6 years.

(2) (a) The Minister may at any time remove the Pensions Ombudsman from office if, in the Minister's opinion, the Pensions Ombudsman has become incapable through ill-health of performing his functions, or has committed stated misbehaviour, or his removal appears to the Minister to be necessary for the effective performance of the functions of the office.

(b) If the Pensions Ombudsman is removed from office under this subsection, the Minister shall cause to be laid before each House of the Oireachtas a statement of the reasons for the removal.

(3) The Pensions Ombudsman may at any time resign his office by letter addressed to the Minister.

(4) A person appointed to be the Pensions Ombudsman shall in any case vacate the office on attaining the age of 67 years.

(5) (a) Where a person who holds the office of Pensions Ombudsman is—

(i) nominated as a member of Seanad Éireann,

(ii) nominated as a candidate for election to either House of the Oireachtas, the European Parliament or a local authority,

(iii) regarded pursuant to Part XIII of the Second Schedule to the European Parliament Elections Act, 1997 , as having been elected to the European Parliament, or

(iv) co-opted to fill a casual vacancy in the membership of a local authority,

he shall cease to hold the office of Pensions Ombudsman.

(b) A person who is for the time being entitled—

(i) under the standing orders of either House of the Oireachtas to sit therein,

(ii) under the rules of procedure of the European Parliament to sit therein, or

(iii) under the standing orders of a local authority to sit as a member thereof,

shall, while so entitled, be disqualified from holding the office of Pensions Ombudsman.

(6) A person who holds the office of Pensions Ombudsman shall not hold any other office or employment in respect of which emoluments are payable.

Salary and superannuation.

130.—(1) There shall be paid to the holder of the office of Pensions Ombudsman such remuneration and allowances for expenses as the Minister, with the consent of the Minister for Finance, may determine.

(2) The Minister shall, with the consent of the Minister for Finance, make and carry out such scheme or schemes for the granting of superannuation benefits to or in respect of the Pensions Ombudsman as he may think fit.

(3) Every such scheme shall fix the conditions for eligibility for payment of superannuation benefits under it and different conditions may be fixed by reference to the different circumstances pertaining to the particular officeholder concerned or his dependants at or before the time the question of eligibility for such payment falls to be considered.

(4) The Minister may at any time, with the consent of the Minister for Finance, make and carry out a scheme or schemes amending or revoking a scheme under this section.

(5) No superannuation benefit shall be granted by the Minister nor shall any other arrangement be entered into by the Minister for the provision of such a benefit to or in respect of the Pensions Ombudsman otherwise than in accordance with a scheme under this section or, if the Minister, with the consent of the Minister for Finance, sanctions the granting of such a benefit, in accordance with that sanction.

(6) A scheme under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and if a resolution annulling the scheme is passed by either such House within the next twenty-one days on which that House has sat after the scheme is laid before it, the scheme shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

(7) If any dispute arises as to the claim of any person to, or the amount of, any superannuation benefit payable in pursuance of a scheme or schemes under this section, such dispute shall be submitted to the Minister who shall refer it to the Minister for Finance, whose decision shall be final.

Functions of Pensions Ombudsman.

131.—(1) The Pensions Ombudsman shall be independent in the performance of his functions.

(2) The Pensions Ombudsman may investigate and determine the following complaints and disputes—

(a) a complaint made to him by or on behalf of an actual or potential beneficiary of an occupational pension scheme or PRSA, who alleges that he has sustained financial loss occasioned by an act of maladministration done by or on behalf of a person responsible for the management of that scheme or, as appropriate, PRSA;

(b) any dispute of fact or law that arises in relation to an act done by or on behalf of a person responsible for the management of the scheme or, as appropriate, PRSA, and that is referred to him by or on behalf of the actual or potential beneficiary; and

(c) any other complaint or dispute falling within a category of complaint or dispute prescribed by regulations made by the Minister, with the consent of the Minister for Finance, as a category of complaint or dispute to which this subsection shall apply.

(3) A complaint or reference under this section shall be made to the Pensions Ombudsman in writing in such form as may from time to time be prescribed by regulations made by the Minister, after consultation with the Minister for Finance.

(4) A complaint or reference under this section shall be made to the Pensions Ombudsman—

(a) within whichever of the following periods is the last to expire—

(i) 6 years from the date of the act giving rise to the complaint or reference, or

(ii) 3 years from the earlier of the following 2 dates, namely, the date on which the person making the complaint or reference first became aware of the said act and the date on which that person ought to have become aware of that act, or

(b) within such longer period as the Pensions Ombudsman may allow if it appears to him that there are reasonable grounds for requiring a longer period and that it would be just and reasonable so to extend the period.

(5) References in this section to a complaint or dispute shall be construed as including references to a complaint or dispute the act giving rise to which was done prior to the establishment day if, but only if, that act was done within the period of 6 years prior to the passing of the Pensions (Amendment) Act, 2002 or between that passing and the establishment day, as the case may be.

(6) The Pensions Ombudsman shall not investigate or determine a complaint or dispute unless the procedures referred to in section 132 have been resorted to and exhausted in accordance with their terms.

(7) The Pensions Ombudsman shall not investigate or determine a complaint or dispute—

(a) if, at the time of the making of the complaint or the reference of the dispute, there are proceedings before any court in respect of any matter which would be the subject of the investigation;

(b) if the scheme or PRSA is of a description that is excluded from the jurisdiction of the Pensions Ombudsman by regulations made by the Minister under this subsection; or

(c) if and to the extent that the complaint or dispute, or any matter arising in connection with the complaint or dispute, is of a description that is excluded from the jurisdiction of the Pensions Ombudsman by regulations made by the Minister under this subsection.

(8) Where a question arises as to whether the Pensions Ombudsman has jurisdiction under this Part to investigate a complaint or dispute, such question shall be determined by the Pensions Ombudsman, whose decision shall be final.

(9) The Pensions Ombudsman shall have such powers as are necessary for or incidental to the performance of his functions.

(10) The Pensions Ombudsman may perform any of his functions, other than the powers conferred on the Pensions Ombudsman by section 139, through any member of his staff duly authorised by the Pensions Ombudsman in that behalf.

Procedures for internal resolution of disputes.

132.—(1) The Minister, with the consent of the Minister for Finance, may by regulations require—

(a) the trustees of a scheme, and

(b) a PRSA provider,

to establish procedures for dealing with complaints made by, and resolving disputes arising between, prescribed persons in relation to prescribed matters concerning the scheme or a PRSA provided by such a provider, as the case may be.

(2) Without prejudice to the generality of subsection (1), regulations under this section may—

(a) require procedures as aforesaid to comprise specified steps (including, as the Minister considers appropriate, the making of an application for a determination to be made in relation to the complaint or dispute, the conducting of a hearing in relation to the matter concerned and the making of a determination in relation to the matter),

(b) require one or more of the said steps to be taken or completed within a specified period,

(c) require the provision of information in relation to the existence of those procedures and how they may be availed of, and

(d) prescribe such other requirements as the Minister considers necessary or expedient for the purpose of enabling complaints or disputes referred to in subsection (1) to be dealt with or resolved.

(3) Without prejudice to section 5(2), regulations under subsection (1) may, as respects schemes, specify different requirements by reference to the class of scheme concerned (being a class defined in the regulations by reference to the number of members of the scheme or such other matters as the Minister considers appropriate).

(4) A determination made pursuant to procedures prescribed under this section shall not be binding on any person unless, upon or after the making of the determination, he assents, in writing, to be bound by it.

Consultants and advisers.

133.—Subject to the prior approval of the Minister, the Pensions Ombudsman may from time to time engage such consultants or advisers as he may consider necessary for the performance of his function, other than the powers conferred on the Pensions Ombudsman by section 139, and any fees due to a consultant or adviser engaged under this section shall be paid by the Pensions Ombudsman out of moneys at his disposal.

Exchange of information.

134.—Notwithstanding anything contained in any enactment, information held by the Pensions Ombudsman for the purposes of this Part may be transferred by the Pensions Ombudsman to the Board and information held by the Board for the purposes of this Act may be transferred by the Board to the Pensions Ombudsman.

Death or disability of actual or potential beneficiary.

135.—(1) Where an actual or potential beneficiary dies or is a minor or is otherwise unable to act for himself, then—

(a) any complaint or dispute (whenever arising but subject to subsections (4) and (5) of section 131) which the actual or potential beneficiary might otherwise have made or referred under this Part may be made or referred by the appropriate person, and

(b) anything in the process of being done by or in relation to the actual or potential beneficiary under or by virtue of this Part may be continued by or in relation to the appropriate person,

and any reference in this Part, except this section, to an actual or potential beneficiary shall be construed as including a reference to the appropriate person.

(2) For the purposes of subsection (1) ‘the appropriate person’ means—

(a) where the actual or potential beneficiary has died, his personal representative; or

(b) in any other case, a member of his family, or some other person who is considered by the Pensions Ombudsman to be a suitable person to represent him.

Staying court proceedings where a complaint is made or a dispute referred.

136.—Where—

(a) a complaint has been made or a dispute referred to the Pensions Ombudsman; and

(b) any party to the complaint or reference subsequently commences proceedings in any court against any other party to the complaint or reference in respect of any of the matters which are the subject of the complaint or reference,

then, any party to the proceedings may at any time after an appearance has been entered, and before delivering any pleadings or taking any other steps in the proceedings, apply to the court to stay the proceedings and the court, if it is satisfied that—

(i) there is no sufficient reason why the matter in respect of which the said proceedings have been commenced should not be investigated by the Pensions Ombudsman; and

(ii) the applicant was at the time when the proceedings were commenced and still remains ready and willing to do all things necessary for the proper conduct of the investigation,

shall make an order staying the proceedings.

Powers of Pensions Ombudsman in respect of investigations.

137.—(1) The Pensions Ombudsman may, for the purposes of an investigation by him under this Part, require any person who, in the opinion of the Pensions Ombudsman, is in possession of information, or has a document or thing in his power or control, that is relevant to the investigation to furnish that information, document or thing to the Pensions Ombudsman and, where appropriate, may require the person to attend before him for that purpose and the person shall comply with such a requirement.

(2) The Pensions Ombudsman shall, for the purposes of an investigation by him under this Part, have all the powers, rights and privileges vested in the High Court or a judge thereof on the hearing of an action in respect of the examination of witnesses (including the administration of oaths and affirmations and the examination of witnesses abroad).

(3) Subject to the provisions of this Part, a person to whom a requirement is addressed under this section shall be entitled to the same immunities and privileges as if he were a witness before the High Court.

(4) A person shall not by act or omission obstruct or hinder the Pensions Ombudsman in the performance of his functions or do any other thing which would, if the Ombudsman were a court having power to commit for contempt of court, be contempt of such court.

(5) If it appears to the Pensions Ombudsman that a person has failed to comply with a requirement made of him pursuant to the exercise by the Ombudsman of his powers under subsection (1) or (2), the Pensions Ombudsman may apply to the Circuit Court for an order under subsection (6).

(6) Subject to subsection (7), if, on an application under subsection (5), the Circuit Court is satisfied as to the failure of the person concerned to comply with the requirement in question, the Circuit Court may make an order requiring that person to comply with the requirement.

(7) If, on an application under subsection (5), the Circuit Court is of opinion that the requirement in question purports to require the person concerned—

(a) to produce any documents or thing, or

(b) to furnish information,

for which that person is entitled to claim legal professional privilege, the Circuit Court shall set aside the requirement.

(8) The Pensions Ombudsman may, if he thinks fit, pay to the person affected by an action in respect of which an investigation is held by the Pensions Ombudsman under this Part and to any other person who attends or furnishes information for the purposes of the investigation—

(a) sums in respect of travelling and subsistence expenses properly incurred by them, and

(b) allowances by way of compensation for loss of their time,

of such amount as may be prescribed by the Minister, after consultation with the Minister for Finance.

(9) A statement or admission made by a person in an investigation under this Part by the Pensions Ombudsman shall not be admissible as evidence against that person in any criminal proceedings.

(10) The Pensions Ombudsman may, of his own volition or at the request of a party to a complaint or reference, state a case to the High Court on a point of law.

Conduct of investigations.

138.—(1) The Minister may, with the consent of the Minister for Finance, make regulations with respect to the procedure that is to be adopted in connection with the making of complaints, the reference of disputes, and the conduct of investigations under this Part.

(2) Subject to the provisions of this Part and regulations thereunder, the procedure for the making of complaints, the reference of disputes, and the conduct of investigations under this Part shall be such as the Pensions Ombudsman considers appropriate in all the circumstances of the case, and he may, in particular, obtain information from such persons and in such manner, and make such enquiries, as he thinks fit.

(3) Where the Pensions Ombudsman proposes to conduct an investigation into a complaint made or dispute referred under this Part, he shall give—

(a) any person (other than the person by whom or on whose behalf the complaint or reference was made) responsible for the management of the scheme or PRSA to which the complaint or reference relates,

(b) any other person against whom allegations are made in the complaint or reference, and

(c) any other person whose interests, in the opinion of the Pensions Ombudsman, might be adversely affected by any eventual determination he makes in relation to the complaint or dispute, an opportunity to comment on any allegations contained in the complaint or reference.

Determinations of Pensions Ombudsman.

139.—(1) On the investigation of a complaint or reference under this Part, the Pensions Ombudsman shall make a determination in relation to the complaint or dispute, and may in the determination give to the parties concerned such directions as the Pensions Ombudsman considers necessary or expedient for the satisfaction of the complaint or the resolution of the dispute.

(2) A direction under subsection (1) shall not require either—

(a) an amendment of the rules of a scheme or the conditions of a PRSA contract, or

(b) the substitution of the decision of the Pensions Ombudsman for that of the trustees of a scheme in relation to the exercise by the trustees of a discretionary power under the rules of the scheme.

(3) Subject to subsection (4), the Pensions Ombudsman may under subsection (1) order such redress, including financial redress, for the party concerned as he considers appropriate, having regard to all the circumstances and to the provisions of this Part, and specifies.

(4) Any financial redress under subsection (3) shall be of such amount as the Pensions Ombudsman deems just and equitable having regard to all the circumstances but shall not exceed any actual loss of benefit under the scheme or PRSA.

(5) The determination of the Pensions Ombudsman shall be in writing and shall be communicated to the parties by the Pensions Ombudsman.

(6) If the Pensions Ombudsman considers it appropriate to do so in any particular case, he may publish, in such form and manner as he thinks fit, a report in relation to any investigation under this Part and of the result of that investigation.

(7) For the purpose of the law of defamation, the publication by the Pensions Ombudsman of any report under subsection (6) shall be absolutely privileged.

Appeal to High Court from determinations of Pensions Ombudsman.

140.—(1) A party to an investigation before the Pensions Ombudsman under this Part may appeal to the High Court from a determination of the Pensions Ombudsman within 21 days from the date of the determination.

(2) The High Court, on the hearing of an appeal under this section, may, as it thinks fit, annul the determination concerned, confirm the determination or confirm the determination subject to such modifications as it considers appropriate.

Enforcement of determinations of Pensions Ombudsman.

141.—(1) (a) If a party fails or refuses to comply with a determination of the Pensions Ombudsman under this Part (‘a determination’), the Circuit Court shall, on application to it in that behalf by—

(i) the other party concerned, or

(ii) the Minister, if he is of opinion that it is appropriate to do so having regard to all the circumstances,

make an order directing that party to carry out the determination in accordance with its terms.

(b) In paragraph (a), the reference to a determination is a reference to such a determination in relation to which, at the expiration of the time for bringing an appeal against it, no such appeal has been brought or, if such an appeal has been brought, it has been abandoned.

(2) Notwithstanding subsection (1), where, in proceedings under that subsection, the Circuit Court is satisfied that, owing to lapse of time, it would not be possible to comply with an order under that subsection, that Court shall make an order providing for such redress as it considers appropriate having regard to the provisions of this Part and all the circumstances.

(3) In an order under this section providing for the payment of financial redress by any person, the Circuit Court may, if in all the circumstances it considers it appropriate to do so, direct the person concerned to pay to the actual or potential beneficiary concerned interest on the payment at the rate referred to in section 22 of the Courts Act, 1981 , in respect of the whole or any part of the period beginning 4 weeks after the date on which the determination concerned is communicated to the parties and ending on the date of the order.

(4) An application under this section to the Circuit Court shall be made to the judge of the Circuit Court for the circuit in which the relevant member or, as appropriate, contributor ordinarily resides.

Notices.

142.—Subsection (2), (3) and (4) of section 91 shall apply with respect to the mode in which a notice, direction or other document under this Part or regulations thereunder may be addressed to a person and served on or given to him in the same manner as they apply with respect to the mode in which those things may be done in relation to a notice, direction or other document under Part X or regulations thereunder.

Accounts and audits of Pensions Ombudsman.

143.—(1) The Pensions Ombudsman shall keep in such form as may be approved of by the Minister with the concurrence of the Minister for Finance all proper and usual accounts of all moneys received or expended by the Pensions Ombudsman, including an income and expenditure account and balance sheet and, in particular, shall keep all such special accounts as the Minister may from time to time direct.

(2) Accounts kept in pursuance of this section shall be submitted, not later than such day after the end of the financial year of the Pensions Ombudsman to which they relate as the Minister may specify, to the Comptroller and Auditor General for audit and a copy of the income and expenditure account and of the balance sheet and of such other (if any) of its accounts as the Minister may direct and a copy of the Comptroller and Auditor General's report on the accounts shall be presented to the Minister as soon as may be after the completion of the said audit and the Minister shall cause copies of each of the documents aforesaid to be laid before each House of the Oireachtas.

Reports and information to Minister.

144.—(1) The Pensions Ombudsman shall furnish to the Minister such information regarding his income and expenditure as he may from time to time require.

(2) As soon as may be after the end of each financial year of the Pensions Ombudsman, but not later than 6 months thereafter, the Pensions Ombudsman shall make a report to the Minister of his activities during that year and the Minister shall cause copies of the report to be laid before each House of the Oireachtas.

(3) (a) Before the expiry of 12 months from the establishment day, the Pensions Ombudsman shall, with respect to his activities in the period referred to in paragraph (b), adopt a statement of strategy (which shall include a plan with respect to the manner in which he proposes to carry on those activities) and submit the statement to the Minister.

(b) The period mentioned in paragraph (a) is the period ending on the day on which the statement of strategy under subsection (4)(a) is submitted to the Minister.

(4) (a) Before the—

(i) expiry of 3 years from the submission to the Minister of the statement of strategy referred to in subsection (3), and

(ii) the expiry of each successive period of 3 years thereafter,

the Pensions Ombudsman shall, with respect to his activities in the period referred to in paragraph (b), adopt a statement of strategy (which shall include a plan with respect to the manner in which he proposes to carry on those activities) and submit the statement to the Minister.

(b) The period mentioned in paragraph (a) is the period ending on the day on which the next subsequent statement of strategy under this subsection is submitted to the Minister.

(5) (a) The Pensions Ombudsman shall publish, as soon as practicable after its adoption, each statement of strategy under subsection (3) and (4).

(b) As soon as practicable after the receipt by him of a statement of strategy under subsection (3) or (4), the Minister shall cause copies of it to be laid before each House of the Oireachtas.

(6) Each report under subsection (2) and each statement of strategy under subsections (3) and (4) shall include information in such form and regarding such matters as the Minister may direct.

(7) The Pensions Ombudsman shall, whenever so requested by the Minister, furnish to him information in relation to such matters as he may specify concerning or relating to the scope of his activities generally, or in respect of any account prepared by the Pensions Ombudsman or activities, other than day to day activities, of the Pensions Ombudsman.

Disclosure of Information.

145.—(1) A person shall not, without the consent of the Pensions Ombudsman, disclose any information obtained by him while performing (or as a result of having performed) duties as a member of the staff of, or an adviser or consultant to, the Pensions Ombudsman.

(2) Nothing in subsection (1) shall prevent the disclosure of information in a report made to the Pensions Ombudsman or by or on behalf of the Pensions Ombudsman to the Minister or by or on behalf of the Pensions Ombudsman under section 139(6).

(3) Notwithstanding subsection (1), the Pensions Ombudsman or a member of his staff may disclose to a member of the Garda Síochána information which, in the opinion of the Pensions Ombudsman or the member of his staff, may relate to the commission of an offence (whether an offence under this Act or not).

Staff of Pensions Ombudsman.

146.—(1) (a) There shall be employed in the office of the Pensions Ombudsman so many officers and servants as the Minister, with the consent of the Minister for Finance, shall from time to time determine.

(b) The power of appointing a person to be an officer or servant of the Pensions Ombudsman shall be vested in the Minister.

(2) Members of staff of the Pensions Ombudsman shall be civil servants in the Civil Service of the State.

(3) The Minister may delegate to the Pensions Ombudsman the powers exercisable by him under the Civil Service Commissioners Act, 1956 , and the Civil Service Regulation Acts, 1956 and 1958, as the appropriate authority in relation to members of the staff of the office of the Pensions Ombudsman and, if he does so, then so long as the delegation remains in force—

(a) those powers shall, in lieu of being exercisable by the Minister, be exercisable by the Pensions Ombudsman, and

(b) the Pensions Ombudsman shall, in lieu of the Minister, be for the purposes of this Act the appropriate authority in relation to members of the staff of the office of the Pensions Ombudsman.

Expenses of Pensions Ombudsman.

147.—The expenses incurred by the Pensions Ombudsman in the administration of this Part shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.”.