BWFS Occupational Pension Scheme (PO-26647)

Ombudsman’s Determination

Outcome

Having fully considered the evidence and submissions presented on paper and those provided at the Oral Hearing, I uphold the Applicants’ complaints. My reasons are as follows: 

1. the Trustees have breached their fiduciary duty to manage conflicts of interest and their duty not to profit from their position as trustees; 

2. The investments made by the Trustees were made in breach of their statutory and trust law duties; 

3. the Trustees failed to comply with the requirement, under section 247 of the Pensions Act 2004, to have knowledge and understanding of the Scheme’s documents or the law relating to pensions and trusts; 

4. the Trustees breached their statutory duties to have in place adequate controls to: manage conflicts of interest; and ensure the effective administration of the Scheme; and 

5. the Trustees provided false information to members in breach of their fiduciary duties to act honestly and in good faith. 

6. There has also been maladministration by the Trustees in relation to: 

1. Making unauthorised payments to members; 

2. failing to have regard to the Pensions Regulator’s (TPR) 2013 and 2016 Code of Practice number 13; 

3. failing to ensure that the Scheme’s investments were, and remained, appropriate for the Scheme’s members.

I have concluded that the Trustees are not excused from liability by the terms of any exoneration or indemnity clause in the Scheme’s paperwork, or by section 61 of the Trustee Act 1925 (Section 61). I have further concluded that the Trustees’ liability is not reduced or extinguished by any defence of member consent or contributory negligence. 

Complaint summary

1. The Applicants’ complaints are that: 

1. they are unable to access their pension fund; 

2. the Trustees have failed to administer the Scheme; and 

3. they are concerned that their pension fund has now been lost or misappropriated. 

2. Throughout this Determination, I have referred to Mr Green and Mr Stanley collectively as the “Respondents”. Where I refer to each individually, in their capacity as a trustee of the Scheme or otherwise, I refer to them as Mr Green and Mr Stanley. Where I refer to both Respondents in their capacity as express or constructive trustees, I refer to them as the “Trustees”.