Webber v Department for Education

For limitation purposes, a complaint to the Pensions Ombudsman concerning legal rights must, so far as possible, be treated by analogy with court proceedings. The limitation period stops when the scheme trustees first take the relevant unilateral step asserting recovery within the Ombudsman procedure. A pensioner’s complaint does not itself stop time running in favour of trustees who were unaware of it and had taken no protective action. The trustees’ Rule 6 reply was therefore the equivalent of “action brought”. The Ombudsman must give effect to a valid limitation defence and must reach the same legal result, so far as possible, as a court. Issues of pure maladministration remain distinct from disputes concerning legal rights.

Norman Charles Webber appealed under section 151(4) of the Pension Schemes Act 1993 against a determination of the Pensions Ombudsman concerning recovery of overpaid teachers’ pension. Earlier High Court proceedings had allowed an appeal in part and remitted the complaint for determination of the limitation date and the amount recoverable.

The Ombudsman treated an unequivocal demand for repayment as stopping time. The appeal concerned whether that approach was legally correct, what event was analogous to the commencement of court proceedings, and whether further complaints of maladministration fell within the remitted issues.

1. Appeal. The appeal was dismissed on maladministration but allowed on limitation.
2. The Pensions Ombudsman must apply established legal principles when determining disputes concerning legal rights. The answer should not depend on whether recovery is pursued in court or through a Part X complaint under the Pension Schemes Act 1993. The Ombudsman therefore had to give effect to a valid limitation defence, applying the Limitation Act 1980 by analogy.
3. The court proceedings analogy required some event in the Part X procedure to perform the function of “action brought”. The relevant event had to reflect the unilateral act of the person seeking recovery, consistently with Barnes v St Helens MBC [2007] 1 WLR 879 and Page v Hewetts [2012] EWCA Civ 805.
4. The pensioner’s receipt or submission of a complaint, its acceptance by the Ombudsman, and the trustees’ demand letter were not the correct events. The complaint was initiated by the pensioner, and the demand letter did not correspond to “action brought” in court. Treating the demand as decisive would create a distinct limitation regime for Ombudsman complaints.
5. The correct cut-off date was the date on which the Ombudsman received the trustees’ Rule 6 reply of 19 December 2011. That was the trustees’ first unilateral assertion within the procedure that the overpaid pension should be repaid. The matter was remitted for calculation of the recoverable overpayments, unless the parties could agree the relevant dates and figures.
6. The complaints of maladministration had already been adjudicated upon, were not remitted by the earlier order, and were properly rejected by the Ombudsman.

1. High Court (Chancery Division) — the present court allowed the appeal on limitation, dismissed it on maladministration, and required further determination of the recoverable amount if the parties could not agree.
2. High Court (Chancery Division) — Asplin J allowed an earlier appeal and remitted the complaint: [2012] EWHC 4225 (Ch).
3. High Court (Chancery Division) — Nugee J allowed the earlier appeal in part on limitation and remitted the limitation date and quantum: [2014] EWHC 4240 (Ch); [2015] ICR 544.