Dolphin Packaging Materials Ltd v Pensions Ombudsman 2

Reference: (1995) OPLR 331, (1995) OPLR 345

The complainant was the personal representative of a deceased member of a pension scheme. The complaint concerned whether or not that member, Mr Haines, was still an employee of the appellant company at the time of his death. The insurers of the pension scheme had determined that the personal representative was not entitled to receive a pension under the scheme on the grounds that Mr Haines had ceased to be an employee prior to his death.

The Ombudsman investigated the conduct of the appellant company (the employer of the scheme), the fund manager, trustees and insurers. He determined that the employer had been guilty of maladministration and that Mr Haines had been an employee at the time of his death. No determination was made against the other parties.

Directions hearing
By the time the appeal was heard it had been agreed by all parties that Mr Haines had indeed been an employee at the time of his death. However, the Ombudsman sought directions from the court regarding his role in the proceedings and the identity of the appropriate other parties. Turner J held that the Ombudsman should be a party to an appeal where his absence would serve to defeat the objective of his office to provide inexpensive justice to pension scheme members. This would occur where, were he not to appear, the complainant would be faced with the decision either to concede to the appeal or risk the cost of fighting and losing that appeal. However, the role of the Ombudsman in an appeal should be to assist the court in a non- partisan manner. The judge also held that the complainant clearly had an entitlement to be a party to the appeal. However, there was no requirement that she should take up that entitlement.

Main hearing
The Ombudsman's remit did not extend to an investigation of those who insure pension schemes and therefore he could not consider the actions of the insurer. As it was now agreed that Mr Haines was an employee at the time of death, it seemed that the insurers should have to pay out if the policy so required. The Ombudsman argued that the Court should be limited to considering the orders he could properly make himself and therefore could not make an order against the insurers. The Court sympathised with this view and said an order could not be made in the form of a judgment against the insurer in the absence of any pleadings, documents or discovery.