| The Pensions Ombudsman |
| This Chapter at a Glance:
• The Pensions Ombudsman~ 1991~1994. Mr. Michael Platt (No Legal Qualifications); • The Pensions Ombudsman~ 1994~2002. Professor Julian Farrand (Solicitor); • The Pensions Ombudsman~ 2002~2007. Mr. David Laverick (No Legal Qualifications); • The Pensions Ombudsman~ 2007~2015. A.King (No Legal Qualifications); • The Pensions Ombudsman~ 2015~To Date Incumbent Mr.A.Arter (Solicitor); • The Deputy Pensions Ombudsman~ 2015~To Date Incumbent Ms.K.Johnston (Barrister). • TPO ~ A Brief Historical Sketch~ 2015 Onwards; • King – The Building of a Fiefdom; • The Pension Ombudsman – The Bugler’s View; • TPO Arter shares his Thoughts ~ 2015 ~ 2017; • The Bugler’s Thoughts; • The Bugler – Future Current Affairs; • TPO~2017 ~ Has TPO reached the Promised Land?~ Corporate Plan~ Declaration Personal Interests ~ Handling Service Delivery Failures. |
| TPO ~ A Brief Historical Sketch~ 2015 Onwards |
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When, not if, an individual’s pension administration goes awry and the Scheme manager obdurately refuses face to face discussion; refuses to address the issues with maturity and professionally qualified pension capability within an atmosphere of detached cooperative arbitration; then deliberately delays, obstructs, or simply ignores the Internal Dispute Resolution Procedures(which are a required process under the Statutory law of the Pension Acts) and, finally, a so called ‘Determination’ is railroaded to a dismissive end, it is inevitable that the Scheme Member will have recourse to the Pension Ombudsman. But what are a Scheme Member’s reasonable expectations and will those expectations be fulfilled? Almost over a quarter of a century ago in 1991 the actual title of ‘Ombudsman’ was first used in the UK government in the creation of the post and entitled Pensions Ombudsman. Historically it came from Sweden in 1714. It was the first service created by Statute to specifically deal with complainants who had specific issues with their individual pensions regardless of the Scheme they were a Member of, whether private, or public. The first Pensions Ombudsman in 1991 was Mr. Michael Platt a civil servant with little or no knowledge of pension matters and certainly no legal qualification of any description. He was succeeded in 1994 by a ‘colourful’ University Professor of Law Mr Julian Farrand who was a former solicitor specialising in conveyancing which made him eminently suitable for arbitrating on the specialisation of pensions and pension law and who arrived about the time of the Maxwell pension scandals. In turn he was succeeded by Mr. David Laverick, previously a Director of the Local Government Ombudsman and chief executive of the Family Health Services Appeal Authority. Once more an appointee with no relevant legal qualifications or any background specialist pension knowledge or administration. Professor Farrand appointment was the only occasion, during this last quarter of a century, until the recent appointment of the current Pensions Ombudsman Mr. Anthony Arter, a solicitor, when any appointee had the remotest association with, or carried any qualifications to practice general law never mind the consideration of practicing and adjudicating on the specialist law of pensions and pension Schemes. This, by now, institutionalised failing continued with the next and without doubt the most calamitous appointment in terms of the destruction of the final credibility of the Pensions Ombudsman with the appointment under contract of Mr. A. King.
Tony(as he liked to be known to his chums in the pension industry) King was the fourth appointee and was first appointed under contract in September 2007 as a temporary civil servant for a period of three years at the very time the Firefighters pension melt down commenced within the Lancashire Fire and Rescue Service. He was re-appointed for a second three-year contract in September 2010 which was once more renewed in 2013 in accordance with the Office of the Commissioner for Public Appointments (OCPA) code of practice with a remuneration of £185-190kpa + £60K pension from the date of his reappointment. This is hardly small beer when one considers he stated during an on the record, rather bizarre, published interview about his employment antecedents that he rather ‘fell into’ the appointment because it seemed to him he was at a |
‘loose end’ and as he put it he really could not find anything else more suitable for his talents, none of which amounted to either a legal or pension management qualification. Though t’would have been better for his subsequent ‘customers’ if King had ‘fallen’ into a field in Lincolnshire shelling Birds Eye peas…
Prior to this she was a senior consumer lawyer at the Office of Fair Trading and a barrister at the Independent Bar but with no pension management experience. What is the Independent Bar? This seems to raise the inevitable question when is a barrister not a barrister, or advocate? According to the Bar Council, in an argument which rumbles on, it is when a barrister chooses not to practice the Court advocacy element of their Bar qualification choosing instead to practice law in a non-confrontational arena well removed from the cut and thrust of daily Court practice. So although it seems that at long last the PO has it own barrister to fight its own corner and defend its own ‘Determinations’ in a real Court this seems unlikely. It also seems that once more the thorny question has not been properly addressed in the missed opportunity of these appointments when it surely must be clear to all by now that only Judges accomplished in Pension Law will do if the PO is to describe their collective activities as a Court of Law? Nevertheless Ms. Johnston will, like her colleague Mr. Arter, both find themselves directly subordinate to the Pension Minister of the day who was a party to these appointments. In mid 2014 one year into his new contract(3rd) the government via the DWP decided that King ought to be replaced, though no reasons were stated other than the customary ‘thank you and goodbye’ and his contract was terminated in April 2015. No governmental explanation was ever given for his early departure though to those who were subject to his ‘Determinations’ , indeed his ‘Machinations’ the answer was profoundly simple he was an unmitigated disaster from any Complainant’s standpoint… |
| King – The Building of a Fiefdom |
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In 2007 King was appointed to be the Pensions Ombudsman. This is how he explains his raison d’etre for being an ombudsman… “Nobody wakes up at the age of 12 thinking, ‘Shall I be a train driver? Shall I be a fireman? No, I’ll be a pensions specialist’. And roughly the same thing happens with being an ombudsman.’. One could be forgiven for assuming that he could hardly believe his luck. He had fallen into Alibaba’s Cave and found himself being handsomely paid with £100k+ of the Taxpayers gold coin without a single qualification to his name. But no one could by any stretch of their imagination describe him as stupid, far from it, crafty, cunning, and cynical certainly, and as events were to confirm unprincipled, but not stupid, as he set about building his fiefdom. King brought no special qualities or any formal nationally recognised pension or financial qualifications to any of his appointments when one might reasonably expect at least a Degree in Actuarial Sciences at its most basic. Nor did he attempt to gain any, though it has been claimed that he was a ‘Fellow’ of the Pensions Management Institute where to become a ‘Fellow’ one is simply proposed by an existing ‘Fellow’, without recourse to the tiresome inconvenience of a syllabus of formal professional education leading to a Statutory examination certificate to practice. Formerly he had been(unqualified) with the Financial Ombudsman Service and was considered by them to be their lead Ombudsman for pensions and securities. Perhaps that explains why with people of his ‘calibre’ the national pension scenario is the bewildering mess it is and that ‘securities’ are paradoxically now so insecure. King in his fiefdom has also been Chair of the Ombudsman Association which is simply another of these Buggins turn glad handing chummy organisations rather like the Local Government Association. King suddenly found himself to be Judge and Jury on all national matters pensions and, in effect, answerable to no one. His word was law and subject to his final say and the Devil could take the hindmost. Even a cursory examination of archived ‘Determinations’ simply confirms that he was a ‘company-establishment man’ particularly in corporate cases that mattered to them and he remained so to the bitter end, which he confirmed in the Milne case, in that he had not the slightest intention of standing up for any old unrepresented pensioner with a pension grievance but whose entire obeisance was paid to his city chums in the Pension ‘industry’ and of course when it suited, to his paymasters, the government of the day. On the face of it, it appears that there was statistically a 50/50 split between those Complaints he upheld and those he rejected but of course if he controlled the admission of the Complaints to the statistics list in the first place and in the second place he controlled the results of the ‘Determinations’, then it is hardly surprising that it was quite easy, statistically, to demonstrate how even handed he was. That was manipulative knavery and meant to deceive and mislead not only the Public, but more importantly, potential Complainants. This was heady stuff. He found himself regularly quoted in high profile cases in the national media which only encouraged him to pander to the press and like his opposite number the Information Commissioner to simply ignore or dismiss those cases who did not provide him with the headline grabbing news which bolstered his self aggrandisement in the pursuit of his ‘professional’ egocentric world. With time he clothed himself in respectable Emperor’s New Clothes which were of course invisible to those unfit through position, stupidity, or incompetence to see, whilst of course he like the Hans Christian Anderson fable, remained professionally naked. Then one day someone discovered that this character possessed not a single item of professional clothing to justify a single one of his previous ‘Determinations’, decisions which had dismayed, disappointed, and disenfranchised from Justice thousands of pensioners whilst knowing full well that they would not have the financial resources or the will to challenge his version of the law. But that might come back to haunt his replacement Mr. Arter when cold case reviews of King’s ‘Determinations’ are deservedly called for… Increasingly King came under pressure from well supported Complainants who refused to take no for an answer and his solution to that was very simple, he directed the Complainants to take their Appeals to a higher, but actual, real Court of Law. King masqueraded under this guise of being a Court of Law describing his Office function as an arm of the Judicial system and thus a Court though the High Court and its Judges actually disagreed based on their first-hand experience. This was a process which ultimately led to his downfall because he clogged up the lower Courts with Appeals against his ‘judgements’ and the Judiciary became increasingly fretful, if not downright angry, when they |
viewed this unqualified amateur make errors in law one after the other which they(if they had not enough to do already) had to unravel and apply the pension law correctly. The collective Judiciary have a well known arrogant attitude that the only Courts in the land are those in which they sit and only they can get the interpretation of the law right but as we have seen in the past, and will be seen by an example closer to home, Judges can on occasions get it all spectacularly wrong just like His Honour Judge ‘Nelson’ Butler. Their attitude to King, his Deputy, and their ‘Court’ was all rather sniffy and haughty culminating on a particular occasion when a female High Court Judge repeatedly sent back a ‘Determination on Appeal’ to the Deputy Ombudsman(Ms Irvine)for reappraisal because, in other cutting and withering remarks, the Judge decided that it was legally poorly argued, which is hardly a surprise because Ms Irvine had no legal practice or qualifications either. It is surely an oxymoron and difficult for the layman and any Complainant to understand how a mere contracted temporary civil servant can without any form of legal practice certificate or experience in the application of Pension Law, whilst masquerading as a Judge, call himself the Pensions Ombudsman whilst purporting to exercise a Judicial function which included arriving at legally binding arbitrary conclusions which only the High Court, with its permission, could disentangle. One must ask has the UK pension world gone entirely crazy? How can an impoverished disabled Fire Service Widow complaining on a critical pension income lifeline issue even contemplate having the least confidence in such a bewildering department of the State which is a complete sham and which is shaped and manipulated by a charlatan like King to keep simple Justice from her grasp? An enjoyable ploy of the crafty King was the misuse of the money line as an excuse for injustice. He said could not afford to hire a Barrister to tackle the tricky questions of law which were posed to him usually by pro bono barristers acting for poor unrepresented pensioners or beneficiaries, much preferring to simply reject their Complaints out of hand. This was manipulation to suit his cynical ends. It seemed though that the money could always be found to employ barristers in high profile cases which ultimately the national press would report. Now how is that for egocentric cynicism? King always carried his own final personal insurance with him by stating on every upheld Complaint that he could not enforce his ‘Determinations’ which was simply yet another ploy meant to weaken the will of a determined Complainant. One is bound to ask if this is the case why did he and his £3.291 million ‘Court’ exist at all? But this also contributed to his undoing… The Milne case was King’s and many other civil servants’ swan song. He used every dirty trick in his craft to delay, obfuscate, and obstruct the Milne case, an enthusiasm shared by the DCLG Fire Pension Team but they all reckoned without the dauntless man of the moment, Mr. John Mc Donnell MP(Labour Shadow Chancellor) who rightly organised the political onslaught on their mealy mouthed meanness. During this political onslaught King and his pals at the DCLG Fire Pension Team were forced to yield to the overwhelming political pressure of a 58 strong cross party group of politicians who are to be congratulated on their collective humanity and fair mindedness. But still King continued to fall back on his old techniques of procrastination; ‘fining’ the miscreant government a derisory £100; and providing ‘guidance’ on minimal interest to be paid(now he was a banking expert) to the aggrieved Mr.Milne, assuming, as was acerbically pointed out to him by a grimly determined Mr. McDonnell, that Mr.Milne the Complainant lived long enough to celebrate the acquisition of the Justice he had so long fought for… Any Fire Service Veteran who reads these facts must be appalled that any such contracted temporary civil servant could be appointed to such a key post without a shred of formal professional education for the specialised task in hand. It was a fact that no Firefighter, nor Officer, was permitted to practice the ‘laying on of hands’ on a Member of the Public without holding time framed, substantial, and stipulated Home Office Statutory qualifications all obtained by two stages of Statutory examinations both practical and theoretical. There is only one question to be addressed before presenting more evidence against King. How far does charlatanism go until it is rightly reclassified as corruption? King had a peculiar penchant for giving public interviews which can charitably be described as unusual. As many a politician knows sometimes such interviews have an unpleasant habit of returning to haunt the interviewee… Go Here. In that which follows it is of course for the Reader to judge King to conclude, whether or not, he was all he said and appeared to be… |
| The Pension Ombudsman ~ The Bugler’s View |
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It is important to include in any collated review the Bugler’s impressions formed by direct interaction with the Pensions Ombudsman and his staff. Impression forming opinions which on the first hand were based on the Bugler’s actual ‘experiences’ with the PO and on the second hand by those formed after consulting latest PO annual report for 2015/16. Interaction which has consistently tended to destroy the mythologies which King has created around himself and this DWP sub-department. The PO’s department which accommodates approximately 50(2017) staff is located at 11 Belgrave Road, London, SW1V 1RB. This small staff of permanent civil servants, including temporary or contracted civil servants, receive their remuneration ultimately from the Taxpayer and their conduct is ultimately governed by and reported to Parliament via the DWP to the Pensions Minister; all monitored by the Parliamentary Select Committee for Work & Pensions: and thus full circle back to the self-same Taxpayers. King regularly described his department as ‘independent’ but as we have already seen this is of course simply more nonsense. The department was described by King as a hierarchically ‘flat’ organisation, consisting of general duty clerks called Assistant Investigators; then Investigators; to Senior Investigators (6), and is finally headed by the Pension Ombudsman(1) and his Deputy(1). Now in 2017 all renamed as ‘adjudicators’ in journalistic licence, meaning clerks, because really no one knows what they should be publicly described as ~ printable that is…. None of the staff, until the recent appointments of the new Ombudsmen held, or hold, any formal pension qualifications by examination, legal, professional, or other title, to practice in this specialist pension field. Similarly none of these ‘Adjudicators’ hold any formal judicial qualification either as a ‘judge’, nor are they judicially, or Statutorily empowered, to investigate or judge anything, though Mr. Arter in delegation would wish it otherwise. The Statutory fact remains that any Complainant has the right in law to demand a full ‘Determination ‘ from the Ombudsman or his Deputy. The Taxpayers involved are not ‘customers’ buying a ‘product’ from the Pensions Ombudsman they are in fact Complainant Taxpayers who wish to use a ‘service’ they have already paid for by the expenditure of £3.4 million(2015/16) through a government levy placed on the pension ‘industry’ collected by the Pensions Regulator and then dispersed through the DWP to the PO to deal with a very important pensioner’s personal issue their pension and thus their wellbeing, and upon which they seek a truly impartial and transparent due process within, and in sight of, the applicable pension law. Nor is this primarily an arbitration service though once more Mr. Arter is heading this way and would wish it to be.To be otherwise he will have to ask Parliament for a change in the 1993 Pension Act (As amended). It is the port of last legal refuge when all reasonable measures and legal procedures have been exhausted in respect of resolution dialogue with a pensioner’s Trustees; their private Scheme; or the Scheme manager of a public authority occupational Scheme. It has been suggested by King that if an arbitration service is required then the Public should look no further than The Pensions Advisory Service(TPAS) which should be the penultimate port of call before approaching the TPO. But once more direct experience indicates(as reported previously by the Bugler) that this ‘organisation’ represents ambulance chasing solicitors who tend to delude themselves and their potential ‘clients’ that they also are pension experts and in any event the plans are to scrap this nonsense of another hurdle to Justice and eventually to amalgamate it and TPO into the Pension Regulator organisation. These Complainants arrive at the door of TPO with the high mythological expectations King and now Mr.Arter have generated; that their Complaint will be promptly and professionally dealt with initially by a thorough pre-examination and investigation of all the documents lodged by the Complainant which is the pre-requisite of any application. There is the Complainant’s reasonable expectation and natural assumption that when the term ‘Investigator’(2017 now ‘Adjudicator’) is used to describe a member of staff that this implies that those so employed in this specialism will already have the actual professional forensic and legal skills which are supported with professionally critical qualifications and the substantial current and prior knowledge of pension law with the applied Statutory powers necessary to obtain accurate and truthful answers from all the parties involved. But this is simply not so in practice. Frankly it is all a sham deliberately meant to mislead. It is clear from the briefest actual investigation and direct contact with TPO that not a single member of staff at any ‘Adjudicator’, or ‘Gateway Keeper’ level (what ever in the world this means) within the Pensions Ombudsman department possess these critical professional |
qualifications, forensic, or formal legal skills, though it is to their collective credit that when asked directly, because this is never proffered, that they all promptly confirmed that they did not have such qualities or qualifications. That the pension ‘industry’ will continue to grow is beyond question. It is therefore especially regrettable for these staff that according to the latest Annual Report 2015/16 , there still does not seem to be the slightest interest in providing this critical academic training to staff so that they can acquire specialist skills and qualifications in the immediate future and thus the career minded will seek elsewhere for a future and permanent staff retention will always be a problem. A Complainant’s expectation is that all of this preliminary ‘investigation’ work will be carried out promptly to a professionally high standard culminating in the early production of a transparent, internal, time logged chronologically sequenced file which will accurately reflect the antecedents of a pension dispute; a file fit for internal onward transmission within this department for final resolution and/or ultimately to the Courts of Appeal. But once more this is not so in practice and Taxpayers have a right to expect nothing less. King and now Arter is on the record as describing this department’s function as an arm of the Judiciary and one assumes an intrinsic part of Judicial system, and thus a Court of Law. However, without any form of practising and accomplished Judge in charge with an established background in Pensions law it is difficult to understand how any lay person calling themselves a Pensions Ombudsman can exercise any Judicial function which includes arriving at legally binding arbitrary conclusion(they say) on a single Complaint? So just how credible an organisation is this department which the Taxpayers fund and how credible are its ‘judicial’ practices and conclusions? If the TPO purports to be the penultimate Court of last resort for pension Complainants then it is simply essential that this Ombudsman’s function be properly reassessed and upgraded to a proper non cost Court whereby legally unsupported Complainants(especially beneficiaries like Widows) can bring their Complaint forward with the confidence that those who will adjudicate on it are fully qualified, current, and practiced in Pension Law and where questions of pure Law arise that the TPO has a Statutory duty to bring such a case forward(and pay for it) before a higher judicial Court for a due process decision. Next to the question of what happens when a well prepared Complainant arrives at the PO’s door clutching several barristers’ legal Opinions? What then? The fact of the matter is that these circumstances make it all rather bemusing for the TPO because according to his staff that is not how the ‘game’ is played. Well, why not? Because in the past it immediately involved the TPO in stretching his limited budget and when that happened the PO really did not know what to do about it because it required his expenditure to hire a barrister usually from Sackers Chambers(his local legal pension specialists) for an Opinion to do his unqualified job for him because they did not not(until 2015) have an in-house barrister to argue points of law on an equal footing with the Complainant’s barrister, should the PO decide to disagree. Of course if King/Arter had not been ‘company’ men and had fought for a proper budget for their ‘independent’ department (excluding their own salaries) then they would not be in that position would they? It seems in practice if a dispute was not a headline grabbing issue King always took the simple option which was to issue a prompt negative ‘Determination’ even though it might patently ignore the law and thus in consequences log jam the Courts with unnecessary Appeals which did not cost him any money. This was simple financial cynicism which denied Justice to all.Mr. Arter informs us all that he intends to change this in 2017. So has he? Finally there is one significant thought and two significant questions. When a final ‘Determination’ is made a caveat is always added by the TPO which states that he cannot enforce his Determination or force the organisation he has found against to pay the penalty or bill. So why does this £3.4 mil Court with no teeth exist? One wonders how the current Pensions Minister is expected to nationally build confidence in such an quasi-judicial organisation which has such a pivotal role in providing reassurance of pension protection to all current pensioner holders and especially to those who are currently being encouraged to enter pensions-for-the future saving Schemes under Auto Enrollment ? There can of course be only one answer. A Root and Branch overhaul of the Pensions Ombudsman’s function and organisation to build confidence with all pension holders and their beneficiaries past, present, and the future. Perhaps it ought to be re-titled ‘Tales from another Sleepy Hollow’ but here is the Annual Report of the Pensions Ombudsman for 2015/16.Go Here. |
| TPO Arter shares his Thoughts ~ 2015 ~ 2017. |
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At an early point in 2105 Ombudsman Arter gave an interview to the Professional Pensions® periodical and until the Bugler has time to reflect on his words and intentions then and now in what he might do as opposed to what the Bugler feels he ought to do, in conjunction with his new boss Pensions Minister Guy Opperman M.P., let his interview for the moment speak for itself…Go Here It is time now after 2.5 years in post to review what Ombudsman Arter has proposed, altered, and achieved in benefit for Complainants , not the pension ‘industry, in changes to the operation of his department? Professsional Pensions® (2015)… “Arter has been the Pensions Ombudsman since May(2015) this year. He retired from a senior partner position at Eversheds in 2014. He joined the law firm in 2001 and was head of pensions from 2005 to 2013. He has also served as an independent member of the Pensions Management Institute committee overseeing its accredited adviser programme. Arter has acted for more than 40 pension schemes over the course of his career, including British Airways, John Lewis, the Railways Pension Scheme and Sainsbury’s. Pensions Ombudsman Anthony Arter explains why and how the service needs to change to cope with growing demand. In his two decades in the pension industry, Anthony Arter had never considered going for the position of Ombudsman. He says he was not even aware the job was up for grabs until he was approached by recruiters last year. “But when I thought about it, I thought this would be something I would really enjoy doing,” he says. “I felt I could do some good – I could actually make a difference doing this job.” Arter says his experience as a pensions lawyer (the first to take the role), an independent trustee, and a scheme member has equipped him to see the cases that now come before him from every angle. “I understand the legal issues, the stresses and strains from the trustees’ and insurance companies’ points of view,” he explains. “I have a lot of respect for the majority of trusts because they do try to deal with matters in the right way. But on occasion it goes wrong, and when it does, I’m there to try to help in an impartial way.” He is keen to uphold this impartiality – the Ombudsman has a “pretty much 50/50″ record of upholding complaints – and to get a message out clearly to trustees, professionals and members about what is expected from them, and what they can expect from the organisation.”. Urgent Changes: But Arter had to hit the ground running when he took over from the outgoing Ombudsman, Tony King, in May. “The pressure was really building when I took over, so I needed to make some urgent changes,” he says. The organisation lost its three top people at the same time, while the number of cases it accepted last year was a fifth higher than in the previous year, and 42% up on five years earlier. With more cases being opened than closed, a backlog was beginning to build. “It is vital to reverse this trend,” says Arter. “To improve the time taken to resolve a complaint and ensure the customer journey through the complaints process isn’t worsened.” Arter says tweaks made to internal processes are already beginning to pay off. Separate teams have been set up to deal with more or less complicated complaints, meaning simple cases are being resolved quicker. More investigators are being hired, and the office’s online presence is also being spruced up. This process was begun by King, but which will gather pace with the introduction of videos to its website, and the use of social media platforms. But now he has a more fundamental overhaul in mind. He wants to increase the number of cases resolved informally, without reaching his desk. There are currently three ways in which a complaint can be addressed: an informal opinion from an investigator, a slightly more formal decision letter, or a provisional decision with a full-blown determination from the Ombudsman or his deputy. The last route is a long one, with a three-week delay between letter and determination. Arter is proposing doing away with the middle option. He explains: “I think we should stop using decision letters, because I don’t see the point, and increase the use of opinions, which in the past have only been used sparingly for very simple decisions.” The only types of case that would automatically be resolved by a determination would be those that concern a novel legal point, are representative of a large number of complaints, are very complicated, or will almost definitely be appealed anyway. But the vast majority of cases can be dealt with by an opinion, according to Arter, although all parties will be able to reject an opinion and seek a determination from the Ombudsman. “The present system is lengthy and confusing,” he says. “The drafting of a provisional decision, and then waiting three weeks before a determination is issued lengthens the process, in most cases unnecessarily.” Arter adds that the new system will be fairer as well as quicker. “If an opinion is appealed to me, I will be looking at it for the first time and will have an open mind, unlike a provisional decision and determination, where I have already decided on the matter at the provisional decision stage. Unless some completely new information has come out of the woodwork, I’m not going to do a somersault and make a different decision.” To keep the industry in the loop, Arter proposes publishing opinions that he thinks will be useful, alongside his own determinations. Minimum Redress: Another area where Arter wants to be clear with schemes is the compensation he expects them to offer for the stresses and strains caused by errors. Over the summer he put schemes and advisers on notice that the minimum redress he would order was doubling from £250 to £500. Although this move was questioned by some, the Ombudsman says it is broadly in line with rising prices: there has been 82% inflation since the minimum award was set at £250 in 1995. Arter also says he is raising the bar on the level of distress that complainants must show to qualify for an award. But he says: “If you have a genuine complaint – you’ve gone through an internal dispute procedure, you’ve been on the telephone, you’ve collected all the documents from the dusty attic, you’ve spent days and days on this, you’ve gone through two years, and we’ve upheld your complaint – it’s a long period of time, and it’s very stressful. To be given £250 – it’s almost Pension Liberation: Arter is also hopeful that his workload will be eased slightly by a fall in the number of cases relating to pensions liberation. About one in seven new complaints involved suspected liberation fraud at the moment (see chart). The vast majority of these complaints are against insurance companies rather than trust-based schemes, and most concern blocked transfers rather than cases were money has been switched into fraudulent schemes. Of the 254 investigations started so far more around 90% have been over blocked transfers, but just 17 have been against trust-based schemes. Arter says trustees are now well equipped to deal with suspicious transfers, thanks to The Pensions Regulator’s scorpion campaign, and the code of conduct developed by the Pensions Liberation Industry Group. But he says the whole industry must be vigilant for new types of fraud, especially as freedom and choice shifts the focus to over-55s. “It is essential for all those involved in pensions to keep a close eye on any new development, and that we work together to provide information, protections and warnings, while still giving people flexibility over how they access their savings,” he says. But the Ombudsman thinks complaints around this have peaked, and will soon be replaced by auto-enrolment issues in his to-do tray Trustee Discretion: Another area which is keeping Arter busy is the exercise of discretion by trustees. Complaints around ill-health pensions alone counted for one in ten cases last year, while making sure death benefits go to the right recipients is a concern for trustees. While the facts in each case differ, and Arter recognises that gathering and interpreting the relevant information can be tricky, there are broad principles that can be applied, and there is plenty of leeway for trustees. “They have to make sure their decision isn’t so out of kilter that no other reasonable body of trustees would have made it,” says Arter. “There is quite a margin they have to exercise their discretion.” Broadly speaking, trustees have to make sure the right tests have been applied, the relevant factors have been considered, and irrelevant factors have been discounted. In the case of ill-health benefits this might involve weighing up two different opinions, or a situation in which a member has refused treatment which cure their condition, but is risky. This can put trustees in a difficult position. But Arter says: “They just have to apply common sense. They don’t necessarily have to agree with the individual, they have to look at the facts they have got and ensure they are making a decision within a range of decisions that a reasonable body of trustees would have made.” When it comes to death benefits, the Ombudsman says in many cases trustees will have to dig a bit further than a member’s expression of wish form, especially if that form was signed a long time ago. “Say you have an expression of wish form saying ‘I want to leave all this to my dear wife’ that was signed in 1995,” he says. “You need to make sure they were still living together, you need to ask a few questions. Quite often somebody has written that expression of wish form, forgotten all about it, got divorced, moved in with someone else, had some children with them – the whole thing can be very complicated.” Again, it comes down to discretion. Trustees must take the forms into account, but must show they asked the right questions about the information they contain. In all these cases – from fraud, to maladministration, to interpretations of trustee discretion – Arter says the Ombudsman has a vital role to play. “It’s in everybody’s interest to make sure complaints are dealt with properly,” he says. “And it is the role of the Ombudsman to provide a trusted, fair, impartial service that makes it easy for everyone to resolve pension complaints.”. |
| The Bugler’s Thoughts |
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In the early days of his appointment as we have seen above the Professional Pensions® periodical presented Mr.Arter with an unparalleled opportunity to present, after 5 months in his new appointment, his considered in-depth thoughts and views of the current management state of affairs within his new department and where, under his new leadership, he intended to take it. Lest it be forgotten, his immediate predecessor King, was such a ‘success’ that he was effectively sacked by the last government. This was a first step public opportunity to begin the re-building confidence in the PO as an organisation, especially with the nation’s pensioners. Even though Mr. Arter may not have been asked all the pertinent questions during this interview he might have been, he ought, nevertheless, to have seized this golden opportunity to spell out his detailed plans for his the way forward and how he intends not only to rebuild Taxpayers and staff confidence, but how he intends to take a rebuilt Taxpayers’ confidence to a higher plane for the future. This is an all essential confidence building block supporting the current government pension policies; in a word re-establishing Public trust in their policies. Unfortunately Mr. Arter wasted his opportunities. There is little point in this government encouraging workers to join pension Schemes if their individual financial efforts over a lifetime are not going to be protected by government organisations like the Pensions Ombudsman and The Pensions Regulator. In wasting these opportunities Mr. Arter disappointingly did none of those things which any ‘new broom’ would automatically be expected to do. It is reasonable to expect that after have spent some two decades in legally advising various organisations in their construction and management of various pension schemes and structures, in effect their employee, that his mindset would be orientated towards protecting these schemes and trustees and regrettably this continues to be repeatedly annunciated throughout his interview. But this is not where he finds himself today in his appointment 2.5 years down the road. He now finds himself in an entirely different role, in fact a role reversal, in which he is now required by this government, indeed his Pensions Minister, and most importantly of all the pension saving/investing AE employees of today to protect these Scheme members lifetime investment ~ not their employers. In addition, he also finds himself directly in the managerial driving seat where he is entirely responsible for the direct management of a department which is ultimately answerable to the Taxpayer, a position which also requires a prompt reappraisal of his role which is directly contrary to that which he was previously employed in. It did not seem, in this interview, that this reappraisal has begun or, disturbingly, that it has even occurred to him and it must as a matter of some urgency begin. It must also surely be disappointing for his new staff to find that as an ‘independent’ member of the Pensions Management Institute committee overseeing its accredited adviser programme that Mr. Arter does not give the slightest indication that one of his priorities must surely be, again as a matter of some urgency, to train his staff to formal pension management qualification Standards by examination, particularly those tasked to undertake this specialist work and particularly when it is clear no member of staff currently has those essential prerequisites. How are they expected to know to what Standards Scheme managers are expected to work to, if they do not know those Standards themselves? Mr. Arter informs the Public that he understands the ‘stresses and strains’ from trustees/insurance companies point of view, but it does little to inspire confidence at an early point by not considering those self-same pressures experienced by pensioners when these trustees/insurance companies, and one might add occupational pension Schemes, get it entirely wrong. One hopes he will rapidly learn to understand their ‘stresses and strains’ in their diminishing years. This once more demonstrates a sympathetic mindset for his former employers to the detriment of his new and current employers, the Taxpayers. An attitude which must be readjusted, and promptly, if he is to build confidence in his stated impartiality. Regrettably Mr. Arter refers to ‘customer journeys’. As the Bugler has already pointed out the Taxpayers are not ‘customers’ they are not buying a ‘product’ in the financial sector they are ‘Complainants’ using a ‘service’ they, and the pension tariff, has already paid for and from which it demands and expects prompt even handed transparent impartiality. Mr.Arter proceeds to inform us that he has ‘tweaked’ various procedures within his department to enhance the speed of resolution of a Complaint and whilst this may be acceptable in the immediacy, it hardly addresses the fundamental review required to make this department work properly and accurately within the applicable pension laws. Tinkering, a more accurate word, will not address the issue that unqualified staff will still be making ‘determinations’, without the Taxpayer confidence inspiring factor, that they will do so from a base of a fundamental lack of qualification, knowledge, and experience. These basic managerial failures brought this department to the crises it is still in today. More ‘Adjudicators’ have been hired but Mr.Arter fails to inform the readership based on what individual criteria or profile, and sprucing up his website ~ the image~ is hardly likely to cut the mustard with an increasing flow of Complainants. |
Mr. Arter’s answer, he informs us, is a more ‘fundamental overhaul’ but this will still not address the issue that his unqualified staff will be expressing ‘ajudications’ on a formal Complaint without the substance of credibility. Every Complainant, and indeed if they are wise, their solicitor/barrister will also have an ‘opinion’. Is their legally qualified ‘opinion/adjudication’ to count for less than a clerk/adjudicator who happens to be employed at the Pensions Ombudsman? Mr. Arter has, rightly, done away with the middle/second option of decision making in which a senior unqualified ajudicator reached an ‘opinion’ and that was it. Should the Complainant not accept this ‘opinion’ what happened in reality was that this was then passed unedited to the Ombudsman who simply appended his/her signature thus making it a formal ‘Determination’. ‘Heads I win tails you lose’… This is simply unacceptable banana republic stuff of the genre ‘I will because I can’ autocracy in which formerly King massaged his ‘output’ statistics to his own statistical delight. There is an understandable weary acceptance by Mr. Arter, which is simply a recognition of the obvious, that there will always be those supported by a well-qualified legal team who will continue to refuse to accept the ‘opinion’ of a clerk/adjudicator simply because they have not the slightest professional regard for the clerk/adjudicator producing it. Consequently the queue to the legitimacy of a ‘real’ Court will lengthen, not diminish, and increasingly the Pensions Ombudsman credibility will be continue in terminal decline. The TPO either runs a ‘real’ Court or he does not and Mr. Arter needs to help his Pensions Minister to make up their collective minds which genre of judicial ‘beast’ this really is, or none. Next he addresses the question of ‘Redress’ which once more raises the legitimacy, or not, of his ‘Court’. He suggests, again rightly, that this is due for revision and cites the cost of living index as support for this proposal. But if this is a ‘real’ Court which has the normal capacity of such routine index adjustment, allied with the normal capacity to judge, punish, exonerate, or indeed excoriate, a ‘going rate’ of redress ceases to have meaning and becomes for all practical purposes obsolete. One thousand pounds is hardly it, is it? As a consequence within a ‘real’ Court, win or lose, a ‘wronged’ pensioner will feel satisfied that has had his day, and if has he won his point and had his pension corrected in his favour he will also have the satisfaction of seeing a recalcitrant Scheme manager, Trustee, or company rightly punished financially for their failure of duty of care to him, the Complainant, and for putting the pensioner Complainant to all this trouble and stress usually within declining years just for the purpose of obtaining Justice. Once more in an abrogation of legal responsibility the Pensions Ombudsman informs all Complainants, if successful, that he cannot enforce his Determination. Now if that is so then de facto he does not run a Court and should not misrepresent himself to Complainants that he does. Pension liberation is in its infancy and will in time continue at a much reduced rate. The Bugler has commented on this before. The State should not have the role of nanny in the informed choices pensioners make but it is as we know commendably making available to those considering withdrawing their ‘pot’ the options they should sensibly consider and provide the facilities to access those decision making options; it can, and reasonably should, do no more. Finally in both pension liberation and trustee discretion it is to his credit that Mr. Arter clearly speaks from a position of both strength in knowledge and experience and one hopes that in the future he will perhaps, poacher having turned gamekeeper, look with more of a jaundiced eye on those his has just left in the investment sector though that might not be so if we look at the trends of his management adjustments? It bears repeating that there is no point in any government encouraging workers to join AE pension Schemes if their individual financial efforts over a lifetime are not going to be ring fence protected by government organisations like the Pensions Ombudsman and The Pensions Regulator. This governments’ thrust for change to pensions in the 21st century is grounded on the premise of the protection of pension/savers investments and its policing’ bodies should be set up and funded to operate correctly and not allowed to fail in any aspect, particularly in pensioners confidence and trust. It follows that if any government is, rightly, encouraging workers to plan for their future retirements then this self-same government has a pragmatic obligation in parallel to invest in and properly fund these organisations(in all the dimensions such as staff training and education that they require), effective and efficient organisations which will be required to ‘police’ and ‘control’ those managing these lifetime-of-work pension investments in the decades that lie ahead. It must do no less. This TPO’s department requires a planned urgent short term and then a longer term a root and branch overhaul, to reflect that, with time, it will become the trusted first line of defence for all the nations’ pensioner when, not if, their personal pension management goes awry. This was not a good beginning by a new Pensions Ombudsman. Opportunities have already been wasted, but how many more can be wasted is a moot point? |
| The Bugler – Future Current Affairs |
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Later in dedicated Chapters of Current Affairs the Bugler will published his ‘experience’ and others of dealing with a corrupt Scheme manager named Warren of the LFRS and his deceitful involvement with King and now TPO in reaching no ‘Determination’ except to kick the Complainant’s pension issue into the long grass which ignored each and every inconvenient pension law and the TPO’s own published policies… These can, at worst, be described as miscarriages of Justice, and at best, as the shattering of an Emperor’s Clothes illusion with its King, and now Arter’s created mythology… Meantime on the Friday, 27th March 2015 , before his tenure had run out as PO, King was appointed as a lay member of the Office for Legal Complaints. It seems hardly credible that King without a qualification to his name was appointed by this Office to oversee the ‘improving the access to justice’ among other requirements when he had extreme difficulty in identifying this virtue when he was TPO. According to the Legal Ombudsman Annual Report and Accounts March 2014 his remuneration is £10,000.0pa plus expenses. This is the Press release of his appointment. Go here. |
| TPO~2017 ~ Has TPO reached the Promised Land? |
| Now 2.5 years down the road it is long overdue that the Bugler managerially scrutinises TPO, its senior executive management , its working practices, and working staff and in particular how it is dealing with specific cases placed before it to see if it is measuring up to Public expectations and indeed TPO Arter’s expectations and aspirations bearing in mind he, and he alone, is the only person who can make it all happen though it seems, for the moment, accountability above his level for the TPO is not actually published, one wonders why?
Just for the moment in accumulating the whole picture including the chain of accountability it would be helpful to look at TPO Corporate Plan April 2016 ~ March 2019 by which time Mr. Arter will have had his contract renewed or his replacement will have been identified. For this Corporate Plan with its interim Bugler comments with the intention of continuing this evaluation later Go Here. Complimenting this ‘Plan’ is another interesting document which is the Statutory requirement in a government post for civil servants to declare their personal financial interests which may raise in the Readers’ mind questions that at first glance conflicts of interest already seem to exist in the case of certain individuals already…Go Here. Between August 2015 and March 2016 TPO received only 51 responses which is hardly representative, to their website survey. When it all goes horribly wrong administratively at TPO and a ‘customer’ want to raise a complaint against the TPO and its failure to deliver on the Public users expectations of Service, then what happens? For an insight. Go Here. When the Bugler has looked at all this then we will see if indeed it is worthy of a vote of Public confidence and trust or once more a Root and Branch overhaul? TMB Current Affairs will in due course report on this in ‘Current Affairs’ and in particular on the Fire Service pension Complaint cases that TPO have currently before it… |