High Court ruling on Webber and Teachers’ Pensions

The High Court has issued its judgment on 14 October 2016, in the case of Mr Webber and the Department of Education, which was an appeal of a Determination by the Pensions Ombudsman, Anthony Arter, on 2 February 2016. The judgment throws a light on the relationship between the date of a complaint made to The Pensions Ombudsman (TPO) about an overpayment of pension and the role of the respondent looking to obtain recovery.

In the Determination, the Ombudsman held that the applicable cut-off date for the purposes of the Limitation Act 1980 (the Limitation Act), which decided when the Department of Education was able to seek recovery of the overpayment from, was 24 November 2009. This was on the basis that the applicable cut-off date should be the date closest to when Teachers’ Pensions had demanded payment from Mr Webber because, by analogy, that was when Teachers’ Pensions made its claim under the Limitation Act. The Ombudsman also held that Mr Webber’s complaints of maladministration were not relevant to the issues before him, as they were dealt with by the High Court and a Determination by the previous Deputy Pensions Ombudsman in 2012.

Mr Webber appealed the Determination, asserting that the applicable date for Limitation Act purposes should not be the date when he made his complaint but rather when TPO accepted this for investigation; and that the Determination failed to deal adequately, or at all, with his complaints of maladministration. At Mr Webber’s previous appeal hearing in the High Court in 2012, Mr Justice Nugee held a provisional view that the closest analogy to the issue of a claim form is the formal making of a complaint under Part X of the Pension Schemes Act 1993. He said that if the parties could not agree the date then the issue should return to the Pensions Ombudsman for Determination.

Both parties and the High Court accepted that it would assist proceedings if we participated in the appeal. Mr Justice Bartley–Jones QC acknowledged that our counsel “sought to ensure to the very best of [her] abilities that [Mr Justice Bartley–Jones QC] was fully aware of the arguments which could be deployed on Mr Webber’s behalf”.

Mr Justice Bartley–Jones QC dismissed the part of the appeal relating to maladministration saying there was no merit whatsoever. However, Mr Justice Bartley–Jones QC held that the applicable cut-off date for Limitation Act purposes was not as the Ombudsman had decided, nor the provisional date promulgated by Mr Justice Nugee, or indeed the other dates explored by counsel. Mr Justice Bartley–Jones QC held that the date was when the respondent brought his claim during the course of our complaints procedure.

Anthony Arter said,

The judgment is specific on its facts concerning overpayment complaints. However, I welcome that Mr Justice Bartley–Jones QC’s judgment recognises that the processes of the Court and The Pensions Ombudsman are different and looked to accommodate that.

We will be reviewing our processes and procedures for dealing with overpayment cases, together with existing legislative provisions with a view to considering whether any possible amendments are necessary.