Government Actuaries Department v Pensions Ombudsman

Whether a body is concerned with the administration of a pension scheme is a question for the court, unless Parliament has entrusted that question to the reasonable judgment of the statutory decision-maker. The phrase is broad, but excludes persons whose involvement is limited to administrative acts performed in connection with a scheme. A body may fall within the phrase where it has responsibility for an integral part of the scheme’s operation and must exercise its own expert judgment in performing that responsibility. The provision and continuing review of actuarial commutation tables constituted such involvement. The statutory distinction between administration, financing and provision of benefits is not necessarily watertight. A body already concerned with the scheme may be concerned with its administration even where its functions also relate to benefit calculation.

The Government Actuaries Department challenged by judicial review a preliminary decision of the Pensions Ombudsman. The Ombudsman had held that GAD was an administrator within the Pensions and Occupational Pension Schemes (Pensions Ombudsman) Regulations 1996, and therefore had jurisdiction to investigate complaints alleging maladministration in relation to actuarial tables used by the Firefighters’ Pension Scheme.

The dispute concerned complaints about the failure to update commutation tables between 1998 and 2006. GAD accepted that it fell within the amended statutory definition after 6 April 2005, but disputed jurisdiction over earlier complaints. The central issues were whether the court or the Ombudsman should determine the statutory description, and whether GAD was concerned with the administration of the scheme before the amendment.

1. Disposition. The claim for judicial review was dismissed. GAD was an administrator within the 1996 Regulations. The claimant was ordered to pay the respondent’s costs of £6,870.
2. Function of the court. The question whether a body falls within a statutory description is ordinarily for the court. It is not automatically a question whether the statutory decision-maker reached a rational conclusion. That is especially so where the issue determines the decision-maker’s jurisdiction and the statutory language is sufficiently precise to produce a legal answer.
3. Meaning of “concerned with”. Following Ewing v the Trustees of the Stockham Valve Limited Staff Retirement Benefit Scheme and R (Britannic Asset Management Ltd) v Pensions Ombudsman, the phrase covers a person with some responsibility for running the whole or part of the scheme, or involvement beyond merely carrying out an administrative act in connection with it. The assessment is one of substance, although the phrase does not include every person performing an administrative activity connected with a scheme.
4. Application to GAD. GAD had a duty forming part of the statutory structure of the scheme. It alone had to exercise expert judgment about whether the actuarial tables required revision. That continuing responsibility was integral to the proper and fair operation of the commutation provisions. GAD’s role therefore involved substantially more than supplying information for a fee or performing an isolated administrative act.
5. Relationship between the statutory categories. The categories of administration, financing and provision of benefits are broad and are not necessarily mutually exclusive. The amendment in section 146(4A) elaborated the meaning of administration; it did not create a separate category of concern. The provision of commutation tables was part of administration because the scheme could not properly operate without them, even though the tables were used in calculating benefits.

The judgment was a judicial review challenge to a preliminary jurisdictional decision of the Pensions Ombudsman. No lower-court citation is stated.