The Government Actuary's Department, R (on the application of) v The Pensions Ombudsman

Whether a person is an “administrator” of a pension scheme is a question of fact and degree. The court must examine the substance of the person’s role, rather than the source of the obligation. Sole responsibility for running the scheme is unnecessary, but material participation in its administration is required. A single administrative act will ordinarily be insufficient where it is incidental to the scheme’s operation. A proactive function that is central and integral to the scheme may, however, fall within the administration of the scheme. The statutory categories of administration and provision of benefits are distinct. The latter should not be given an artificially expansive meaning so as to exclude a person whose functions are central to the scheme’s operation from the Pensions Ombudsman’s jurisdiction.

The Government Actuary’s Department challenged a decision of the Pensions Ombudsman concerning complaints by firefighters about allegedly outdated actuarial commutation tables used under the Firemen’s Pension Scheme. The Ombudsman rejected GAD’s preliminary objection that he lacked jurisdiction over complaints concerning acts or omissions before 6 April 2005, when the relevant statutory amendment came into force. Ouseley J dismissed GAD’s judicial review claim. GAD appealed to the Court of Appeal.

The central issue was whether, before 6 April 2005, GAD was a person “concerned with the administration of the scheme” within the meaning of section 146(4) of the Pension Schemes Act 1993 and the Personal and Occupational Pension Schemes (Pensions Ombudsman) Regulations 1996.

1. Appeal dismissed. The Ombudsman had jurisdiction to investigate complaints concerning GAD’s pre-6 April 2005 acts or omissions in relation to the Firefighters’ Pension Scheme.
2. Under section 146(4) of the Pension Schemes Act 1993 and regulation 1(2)(a) of the Personal and Occupational Pension Schemes (Pensions Ombudsman) Regulations 1996, whether a person is an administrator is a question of fact and degree. The court must focus on the substance of what the person does, rather than the source of the obligation. Sole responsibility for running the scheme is unnecessary, but material participation in the scheme or part of it is required.
3. The court distinguished isolated administrative acts from responsibility for the bundle of activities involved in administering a pension scheme. The acts of the solicitor in Ewing and the companies in Britannic were incidental to the running of the schemes and were not central or integral to their operation. The court left open whether an accumulation of individually incidental acts could cumulatively amount to administration.
4. GAD’s role was proactive, interventionist and integral to the structure of the Firefighters’ Pension Scheme. GAD alone had to decide whether the commutation tables required revision and had to revise them as necessary. The scheme could not operate properly without that function. GAD’s position was therefore materially different from that of an actuary retained by scheme managers on request.
5. The court accepted that a person concerned with the provision of benefits under section 146(4)(b) is not concerned with administration. That category was distinct and was understood as relating to payment of benefits to beneficiaries. It did not justify a narrow construction of “administration” that excluded a body performing functions critical to the scheme’s effective operation.

Lord Justice Moore-Bick and Lord Justice Jackson agreed with the Master of the Rolls. The appeal was dismissed.

• Court of Appeal (Civil Division): [2013] EWCA Civ 901 — dismissed GAD’s appeal.
• High Court of Justice, Queen’s Bench Division, Administrative Court: Ouseley J dismissed the judicial review challenge.