TPO closes more cases at assessment, laments lack of aligned appeals systems

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The Pensions Ombudsman has upheld 41% of complaints determined by an ombudsman, up from 29% last year, and is closing more cases at assessment. It is also engaging with the Scottish Civil Justice Council on the appeals process. . Elsewhere, ombudsman Anthony Arter has had his tenure extended by 12 months. 
The ombudsman, which is turning 30 this year, upheld a much larger proportion of cases in the latest reporting period than a year earlier, having issued a determination in 5.9% of cases, up from 5% last year, though it did not comment on the reasons in its latest annual report. The topics of complaints are similar, although compared with last year, a higher number related to retirement benefits and fewer to transfers. 

Older cases remain open 

TPO achieved two of three key performance indicators it had set itself for the year, exceeding the 90% target rate of closing investigations taken on in the year (99.3%) and also the 90% target for dealing with enquiries received in the year (99.3%). 
However, it significantly underperformed on having no more than 10% of open investigations that were more than 12 months old, reporting 29.1% instead - more than 1,400 cases - up from 11% last year, despite receiving fewer phone and written enquiries. Investigations are complaints dealt with by the early resolutions team, adjudication teams or the ombudsman, as opposed to general enquiries. 
It blamed the impact of Covid-19 and the increasing complexity of pension complaints for taking longer to resolve some pension complaints. “Those that may otherwise have been resolved between 6-12 months are now taking over 12 months,” it said, and noted that as it is closing more cases earlier, this also means older active complaints have increased as a proportion of the total.  
“The increased volumes of pension complaints that we have seen over the last few years have led to some pension complaints waiting longer to be allocated to staff than in previous years,” the report adds. It said this was especially true for complex cases that require an experienced and specialist adjudicator. In addition, “we always have a number of pension complaints in hand that cannot be moved on for reasons outside of our control; for example, pending or ongoing court proceedings which could affect our investigation,” it explained. 
The number of enquiries received fell for this year, though last year, the ombudsman had reported a sharp rise as phone calls had increased 41% and written enquiries were up by 24%. 
Complaints - those that can’t be closed at assessment - remained at a similar level to previous years in this latest reporting period, at 5,567. The ombudsman said that after an initial drop in the early stages of the pandemic, there was a rise towards the end of the year. The most common topics across all closed pensions complaints were retirement benefits, pension transfers and misquotes or misinformation. 

Should trustees do more of the direct member comms? 

A higher number of cases closed at the assessment stage this year after an internal reorganisation which saw six adjudicators transferred to the assessment team. This means more than half of complaints (54.6%) are now closed in this way, while less than a third are closed through early resolution. A year ago, both were at a similar level at just under 40%.  
The assessment stage often requires answering questions by scheme members. Head of engagement Mairi Dearden said earlier this month that many enquiries and complaints reach the ombudsman that could have been responded to or resolved by the relevant pension fund’s trustees, identifying a need for better communication. 
In a podcast published earlier this month, she said: “We often deal with complaints and enquiries that could have and should have been dealt with at source. We spend a great amount of time telling people what the provider could have told them right at the beginning of a problem or misunderstanding.” 
Dearden advised providers and trustees that “if problems occur, then pick up the phone and talk to people. Listen and explain, manage people’s expectations from the outset and don’t be afraid to have a difficult conversation.” 

TPO wants to see harmonised appeals process across nations 

As well as resolving more cases at assessment, the ombudsman said the year saw a considerably lower number of appeals received than previously – the lowest in 10 years – and just one appeal outstanding. 
“More pertinently, of the three appeals heard this year, two were not upheld and the parties settled the other one by consent,” the ombudsman said, noting that since April 2014, a party applying to the court must have the consent of the High Court for any appeal against a determination or direction in England and Wales. “It is encouraging to see that the courts are dealing with cases at this earlier stage which is beneficial for all the parties,” it argued. 
TPO now has in-house litigation capacity, having been building an internal legal team over the past two years, and used this in two Scottish cases and for defending two judicial reviews, "which has saved TPO a considerable amount in counsel fees”. 
The ombudsman said it has historically had few appeals in Scotland but dealt with two potential ones this year and lamented the “lack of alignment between the procedure in Scotland and the procedure in England and Wales (and Northern Ireland)”. 
It said that “despite the Pensions Ombudsman being a UK-wide service, parties to a Determination will have very different processes, outcomes and financial exposure in the case of an appeal, dependent on jurisdiction. This unequal treatment is not consistent with the Pensions Ombudsman’s aim to treat everyone fairly or, we believe, Parliament’s original intention when providing for a statutory right of appeal on a point of law in our founding legislation.” 
TPO revealed that it is “progressing the issue” and has been liaising with the Scottish Civil Justice Council, although Covid-19 has delayed things. “In our view, the fairer and more streamlined procedure would be for Scotland to follow a statutory appeals process like that in England and Wales,” it argued. 
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