Women and Pensions The Impact of Ms. Murphy’s Law Paul Kenny Pensions Ombudsman IWLA Conference, July 2009

1. Women and PensionsThe Impact of Ms. Murphy’s LawPaul KennyPensions OmbudsmanIWLA Conference, July 2009

2. What the Pensions Ombudsman Does • Investigate complaints & disputes concerning • Occupational pension schemes • Personal Retirement Savings Accounts • Trust RACs Completely independent office/impartial adjudicator • Can give financial redress • to individuals where they have lost through maladministration of a pension scheme or PRSA • Can decide questions of fact or law

3. Powers • To require production of information, documents, etc (if not legally privileged) • To examine witnesses, administer oaths • To apply for Circuit Court Order to compel • To State a case to the High Court

4. Lookback • Lookback depends on when the event happened: • If before 28 April, 2003 to a date not more than 6 years before the 2002 Act • In effect, 13 April 1996 • If after 28 April 2003, either • Six years from the event; or • Three years from the date on which complainant knew, or ought to have known….

5. Who can Complain? • an actual or potential beneficiary • a member or a former member of a scheme • a surviving dependant of a member who has died • a person claiming to be a member or a surviving dependant • a contributor to a PRSA or Trust RAC • a personal representative of a member or contributor • a widow or widower of a member or contributorwho has died- A complaint may be made through a representative

6. Against Whom? • Former / trustee • Former / employer • Former / PRSA provider • Other category to be prescribed- regs. • Regulations: “Administrator” includes persons • Providing administration service • To whom S.59 duties delegated • Interpreting or applying scheme rules • To whom PRSA provider has delegated • Regulations not amended for “registered Administrator” (2009) – not required

7. What can they complain about? • Maladministration (which can be hard to define) in relation to a pension scheme, PRSA. Etc • Financial Loss as a result BUT NOT • Compliance with the Pensions Act (BOARD) • Equal Treatment (Equality Tribunal) • Most self-employed pensions and Disability Plans (FSO)

8. Internal Disputes Resolution • Complaint in writing to “Relevant Person” • trustees (OPS/Trust RAC) • Minister (Public Authority) • Provider (PRSA) • Determination in writing • Conditions to be met • Trustees can decide structure of IDR procedure appropriate to scheme • IDR result not binding

9. Exceptions and Waiver • IDR not required if • Scheme in Winding –up • Complaint already heard by Pensions Board • PO decides investigation appropriate AND IDR not appropriate • Process can be “exhausted within its terms” after the expiry of the 3-month deadline or such later date as PO decides

10. Investigations • Preliminary Examination • Lots of complaints outside Terms of Reference • Referrals to the Ombudsman, Financial Services Ombudsman, Pensions Board, DSFA Pensions, etc • Decision on whether to go for full investigation

11. Mediation – the Preferred Option • Mediation is faster than full investigation/ determination • Determination invariably means someone is unhappy • Many cases are closed by explanation • Better communication would avert some of these

12. Investigation Completed • May give “Preliminary View” • Indicate likely conclusions • Invite all parties to comment – deadline • This may alter the course of the investigation • Final Determination • binding on all parties, subject to appeal to the High Court within 21 days

13. Enforcement, appeals and CriminalProsecution • One appeal dismissed in 2007 • Two appeals ongoing…. • One appeal “settled” - oddly • Prosecutions for obstruction of Investigations • Enforcement of orders to furnish information • Enforcement of Determinations • complainant or Minister

14. Women and Complaints • Only about 25% of complainants are women • Possibly because under-represented in pension schemes generally • -or because benefits not yet mature

15. Women and Complaints - 2 • Many complaints by women result from previous discrimination: • Late entry to schemes • Exclusion on marriage in Public Sector • Exclusion of part-timers, seasonal workers, fixed-term contract and temporary staff • Employment and Pensions Legislation now requires equal or pro-rata treatment • Delays in implementation • Maladministration

16. Maladministration • Calculation and notification of cost of buy-back • Failure to deal properly with spouses’/children’s liability • Failure to deal properly with purchase of added years • Delays in payment /administration of benefits • “Abatement” of pension on return to employment

17. Dependants’ Benefits • Mortality Benefits not available in CWPS owing to non-remittance of contributions • Impact of discretionary decisions • “wishes” letters • Pension Adjustment Orders – defects • not just in contingent benefits • Orders may not cover all benefits in public service • Interpretation –Relevant benefit in payment

18. Other Problems • Discrimination in Social Welfare system • Part-timers who contributed to a pension scheme may get a lower unemployment benefit! • Because P60 earnings net of contribution • Not intentional, result of drafting of regulations • Non-Irish nationals and opt-out -can hit dependants • Treatment of “new entrants” to public service

19. Not all complaints are serious- to start with • Some should never get to my office, but escalate due to • Poor communication – both ways • Lack of knowledge • Failure to take complaint seriously • Example – woman regarded as on “contract for services” – not employee • Help from SCOPE Section • Decision as a matter of fact • Pension awarded

20. Complaint Handling • How complaints are handled initially will dictate where and how they finish up • It’s important that the complainant feels s/he is being taken seriously • Failure to reply is disastrous

21. What Happens when a person Complains? • Does the Complaint Handler…. • Lend a sympathetic ear? • Attack the complainant? • Call in the PI Insurer? • Actually look for the facts? • Agree that s/he has a case? • Apologise? • Refer the complainant to IDR?

22. The Role of the Apology • Remember that sometimes an apology is enough • Complainants need to feel they are being listened to • Failure of the scheme /administrator /trustee to reply will escalate the problem • People who feel they are not taken seriously feel aggrieved • And complain to an Ombudsman • Or sue

23. Women • Are slow to complain • Are tenacious when they do • Are slow to accept what they don’t understand • Are accepting of a reasoned explanation

24. Office of the Pensions Ombudsman • 36 Upper Mount Street, Dublin 2 • Telephone: 01 647 1650 • Fax: 01 676 9577 • Web; www.pensionsombudsman.ie • E-mail: info@pensionsombudsman.ie