Johnston Press Pension Plan · CAS-40879-F5X4

CAS-40879-F5X4

Ombudsman’s Determination Applicant Mr E

Scheme Johnston Press Pension Plan (the Plan)

Respondents Open Trustees Limited (Open Trustees) Hymans Robertson LLP (Hymans Robertson)

Complaint Summary

Summary of the Ombudsman’s Determination and reasons Mr E’s substantive complaint concerning delays in relation to his transfer cannot be investigated, and his other complaints should not be upheld against Open Trustees and Hymans Robertson because:

• the liability for the complaint in relation to delays has transferred to the board of the PPF, and I do not have the jurisdiction to investigate a complaint of this nature against the board of the PPF;

• there is no evidence of Hymans Robertson misinforming Mr E with assurances that he would receive the illustration of a Cash Equivalent Transfer Value (CETV) he requested in October 2018; and

• the delayed refund of the CETV fee did not amount to maladministration causing distress or inconvenience.

1 CAS-40879-F5X4 Detailed Determination Material facts

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After Mr E contacted Open Trustees on 8 May 2019, Open Trustees identified that he had not been refunded the fee. Barnett Waddingham, the administrator of the Plan at that time, then processed the refund on 8 August 2019.

Summary of Mr E’s position

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He has suffered distress and inconvenience as a result of Hymans Robertson’s acts and/or omissions.

Summary of Open Trustee’s position

Conclusions

“The Principal Employer and the New Trustee generally and in pursuance of section 4(1)(g) of the Trusts (Scotland) Act 1921 (see Appendix 1) hereby discharge the Removed Trustees as a trustees [sic] of the Plan, under the Governing Documentation, with effect from and including the Effective Date.”

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“Without prejudice to the generality of section 161 and subject to sub- paragraph (2), any legal proceedings or applications to any authority pending immediately before the transfer by or against any of the trustees or managers of the scheme in their capacity as trustees or managers shall be continued by or against the Board.”

“The liabilities transferred by section 161 do not include any liabilities in respect of an existing or future cause of action against the trustees or managers of the scheme if, disregarding the transfer, the trustees or managers would have been personally liable to meet the claim and would not have been indemnified from the assets of the scheme.”

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“in the case of a Professional Trustee, liability for such acts of negligence as breach the specified duty of care owed by a Professional Trustee up to the extent of the loss in the assets of the Fund caused by the breach on the part of that Professional Trustee…”

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I do not uphold Mr E’s complaint.

Anthony Arter

Pensions Ombudsman 29 September 2021

8 CAS-40879-F5X4 Appendix 1 Extract of section 4(1)(g) of the Trusts (Scotland) Act 1921

“(1) In all trusts the trustees shall have power to do the following acts, where such acts are not at variance with the terms or purposes of the trust, and such acts when done shall be as effectual as if such powers had been contained in the trust deed, viz:-

[…]

(g) To discharge trustees who have resigned and the representatives of trustees who have died.”

9 CAS-40879-F5X4 Appendix 2 Extract from Chapter K1.28 of Tolleys Pensions Law Service, Issue 129 June 2021

“In addition to the statutory discharges that pension trustees are entitled to on paying out cash equivalent transfer values in terms of s 99(1), Pension Schemes Act 1993, and securing benefits on a winding up pursuant to s 74, Pensions Act 1995, trustees of a Scottish trust, provided that they have not committed a breach of trust, are entitled to be discharged from all personal liabilities in connection with the trust on cessation of their trusteeship.”

10 CAS-40879-F5X4 Appendix 3 Extracts from the Deed of Appointment of Open Trustees

Clause 2

“ACCEPTANCE OF OFFICE BY NEW TRUSTEE

The New Trustee hereby accepts the office of trustee conferred upon it.”

Clause 3

“DISPOSITION AND CONVEYANCE OF TRUST PROPERTY

The Removed Trustees hereby dispone and convey to the New Trustee as trustee of the Plan, under the Governing Documentation and with effect from and including the Effective Date, all and whole and sundry the whole trust estate and effect, heritable and moveable, real and personal, of every description and wherever situated, at present belonging to the Removed Trustees or under their control as trustees of the Plan, together with the whole vouchers, titles, letters and instructions of them.”

Clause 5

“AGREEMENT TO THE REMOVAL

The Removed Trustees and the New Trustee hereby confirm their unanimous agreement to the removal of the Removed Trustees from the office of trustee of the Plan.”

11 CAS-40879-F5X4 Appendix 4 Section 161 of the Pensions Act 2004

“161 Effect of Board assuming responsibility for a scheme

(1) Where a transfer notice is given to the trustees or managers of an eligible scheme, the Board assumes responsibility for the scheme in accordance with this Chapter.

(2) The effect of the Board assuming responsibility for a scheme is that—

(a) the property, rights and liabilities of the scheme are transferred to the Board, without further assurance, with effect from the time the trustees or managers receive the transfer notice […]”

12 CAS-40879-F5X4 Appendix 5 Rule 48.1 of the Plan’s Rules

“48. Trustees’ Liability and indemnity

48.1 Subject to sub-rule 48.2 and to Section 33 of the [Pensions Act 1995], no Trustee shall be responsible, chargeable or liable in any manner whatsoever for or in respect of anything except:

48.1.1 fraud or personal bad faith or wilful breach of trust on the part of that Trustee;

48.1.2 a fine imposed by way of penalty for an offence of which that Trustee is convicted;

48.1.3 a penalty which that Trustee is required to pay under Section 10 of the [Pensions Act 1995] or under Section 168(4) of the [Pension Schemes Act 1993];

48.1.4 in the case of a Professional Trustee, liability for such acts of negligence as breach the specified duty of care owed by a Professional Trustee up to the extent of the loss in the assets of the Fund caused by the breach on the part of that Professional Trustee; and

48.1.5 any other liability which, by law, cannot be excluded or restricted.”

13 CAS-40879-F5X4 Appendix 6 Extracts of the legislation that outlines the PPFO’s jurisdiction

Section 213 of the Pensions Act 2004

“213 Reference of reviewable matter to the PPF Ombudsman

(1) Regulations must make provision—

(a) for a reviewable matter to be referred to the PPF Ombudsman following a reconsideration decision under regulations made under subsection (1)(b) or by virtue of subsection (3)(b) of section 207 in respect of the matter, and […]”

Regulation 2 of the Pension Protection Fund (reference of Reviewable Matter to the PPF Ombudsman) Regulations 2005

“2 Reference of a reviewable matter

Where the Reconsideration Committee has given a reconsideration decision in relation to a reviewable matter by virtue of regulations made under section 207(1)(b) or (3)(b) of the Act, that matter may be referred to the PPF Ombudsman by any person who is sent, or required to be sent, a copy of the reconsideration decision under those regulations.”

14 CAS-40879-F5X4 Appendix 7 Schedule 9 of the Pensions Act 2004

“Reviewable Matters

1 The issue of a determination notice under section 123 approving a notice issued under section 122.

2 The failure to issue a determination notice under section 123.

3 The issue of, or failure to issue, a notice under section 122 by the Board by virtue of section 124 (Board's duty where failure to comply with section 122).

3A The issue of, or failure to issue, a validation notice under regulation 2(5) of the Pension Protection Fund (Entry Rules) Regulations 2005 (S.I.2005/590) (determination to validate or not to validate an estimate and statement provided by the actuary).

3B The provision of information by the Board under—

(a) regulation 3(2) of the Pension Protection Fund (Provision of Information) Regulations 2005 (S.I. 2005/674) (provision of information following receipt of a notice under section 120(2)),

(b) regulation 3(2A) of those Regulations (provision of information following receipt of a notice under section 120(2) where the scheme or section is not eligible), or

(c) regulation 3(9) of those Regulations (provision of information following receipt of an application under section 129(1) or a notice under section 129(4)),

or the failure to provide information under those provisions.

4 The issue of, or failure to issue—

(a) a scheme failure notice under subsection (2) of section 130 (scheme rescue not possible), or

(b) a withdrawal notice under subsection (3) of that section (scheme rescue has occurred).

5 Any direction given under subsection (2) of section 134 (directions during an assessment period) or any variation or revocation of such a direction under subsection (4) of that section.

6 The issue of a notice under section 136(2) (power to validate contraventions of section 135).

15 CAS-40879-F5X4 7 The making of a loan under section 139(2) (loans to pay scheme benefits), the amount of any such loan or the failure to make such a loan.

7A Any determination by the Board under section 141(2) (determination on a review of an ill health pension that compensation in respect of the pension is to be determined in the prescribed manner).

7B A notice under section 143(2A) (whether Board will make a determination or obtain an actuarial valuation).

7C The failure by the Board either to—

(a) make a determination under section 143(2)(a), or

(b) obtain an actuarial valuation under section 143(2)(b).

7D A determination by the Board under section 143(2)(a) (whether condition in section 127(2)(a) or 128(2)(a) satisfied).

9 The approval of, or failure to approve, a valuation in respect of an eligible scheme under section 144(2).

10 The issue of, or failure to issue, a withdrawal notice under or by virtue of—

(a) section 146 (schemes which become eligible schemes), or

(b) section 147 (new schemes created to replace existing schemes).

11 The issue of, or failure to issue, a withdrawal notice under section 148 (no insolvency event has occurred or is likely to occur).

12 The issue of, or failure to issue, a determination notice under section 152(3) (whether value of scheme assets less than aggregate of liabilities etc).

13 The issue of, or failure to issue, a determination notice under section 153(6) (authorisation to continue as closed scheme).

14 Any direction given under section 154(7) (directions about winding up of scheme with sufficient assets to meet protected liabilities) and any variation or revocation of such a direction.

14A A notice under section 158(3A) (whether Board will make a determination or obtain an actuarial valuation).

14B The failure by the Board either to—

(a) make a determination under section 158(3)(a), or

(b) obtain an actuarial valuation under section 158(3)(b).

14C A determination by the Board under section 158(3)(a) (whether condition in section 158(1) satisfied).

16 CAS-40879-F5X4 15 The failure by the Board to give a transfer notice under section 160.

16 Any determination by the Board of a person's entitlement to compensation under the pension compensation provisions or the failure in any case to make such a determination.

16A Any step taken by the Board under section 163(4)(a) (adjustments to be made where Board assumes responsibility for a scheme) to recover the amount of any excess from future pension compensation payments.

16B Any determination by the Board, or the failure to make a determination, under regulation 6(2) of the Pension Protection Fund (General and Miscellaneous Amendments) Regulations 2006 (S.I. 2006/580) (circumstances where the Board is not required to recover overpaid scheme benefits).

16C Any determination by the Board of a person's entitlement to compensation under or by virtue of Chapter 1 of Part 3 of the Pensions Act 2008 (pension compensation sharing on divorce etc) or the failure in any case to make such a determination.

16D A determination by the Board that any right of a person to PPF compensation is or is not “shareable” for the purposes of Chapter 1 of Part 3 of the Pensions Act 2008 (pension compensation sharing on divorce).

16E A determination by the Board that the implementation period for a pension compensation credit (within the meaning of that Chapter) is or is not extended for the purposes of section 114 of that Act.

16F The recovery of a charge from a person under regulation 18 of the Pension Protection Fund (Pension Compensation Sharing and Attachment on Divorce etc) Regulations 2011, the amount of the charge or the method of recovery.

16G Any determination by the Board, or the failure to make a determination, under regulation 54(1) of the Pensions Act 2011 (Transitional, Consequential and Supplementary Provisions) Regulations 2014 (determination to discharge benefits as money purchase benefits in certain transitional cases).

16H Any determination by the Board, or the failure to make a determination, under regulation 55(2) of those Regulations (closed schemes: Board's assumption of responsibility after the appointed day).

16I Any direction given by the Board, or the failure to give a direction, under regulation 57(1) of those Regulations (directions to trustees or managers about the exercise of certain powers under those Regulations).

17 Any failure by the Board to make a payment required by section 163(4)(b) (adjustments to be made where Board assumes responsibility for a scheme).

17A The making of a payment under section 166(2) (amount of any pensions or other benefits which a person had become entitled to payment of under the scheme rules), the amount of any such payment or the failure to make such a payment. 17 CAS-40879-F5X4 17B Any determination made by the Board under regulation 16(2) or (5)(b) of the Pension Protection Fund (General and Miscellaneous Amendments) Regulations 2006 (S.I. 2006/580) (recovery of PPF compensation overpayments).

18 Any determination by the Board under section 181(3)(a) (the eligible schemes in respect of which the initial levy or the pension protection levy is imposed) or the failure to make such a determination.

19 The amount of the initial levy or any pension protection levy payable in respect of an eligible scheme determined by the Board under section 181(3)(b).

19A Any determination by the Board of an application for the grant of a waiver under regulation 3 of the Pension Protection Fund (Waiver of Pension Protection Levy and Consequential Amendments) Regulations 2007 (S.I. 2007/771) (waiver of payment of the pension protection levy) or the failure to make such a determination.

19B Any determination by the Board under regulation 19A(7) or (8) of the Pension Protection Fund (General and Miscellaneous Amendments) Regulations 2006 (S.I. 2006/580) (interest for late payment of the pension protection levy) to waive interest or the failure to make any such determination.

20 The making of a fraud compensation payment under section 182(1), the amount of any such payment or the failure to make such a payment.

21 The issue of, or failure to issue, a notice under section 183(2) (scheme rescue not possible or having occurred in case of scheme which is not eligible etc).

22 Any settlement date determined by the Board under section 184(2) (recovery of value) or the failure to determine a settlement date under that provision.

23 Any determination by the Board under section 184(4) (recovery of value: whether amount received in respect of particular act or omission) or the failure to make such a determination.

24 The making of a payment under section 186(1) (interim payments), the amount of any such payment or the failure to make such a payment.

25 Any term or condition imposed by the Board—

(a) under section 185(2) on the making of a fraud compensation payment, or

(b) under subsection (4) of section 186 (interim payments) on the making of a payment under subsection (1) of that section.

26 Any determination by the Board under section 186(3)(b) (interim payments) that the amount of a payment was excessive.

27 Any date determined by the Board under section 187(4) (earliest date for making a fraud compensation transfer payment).

18 CAS-40879-F5X4 28 Any determination by the Board under section 187(6) (fraud compensation transfer payments: whether payment is received in respect of particular act or omission).

29 Any determination by the Board under section 189(7)(a) (occupational pension schemes in respect of which any fraud compensation levy is imposed) or the failure to make such a determination.

30 The amount of any fraud compensation levy payable in respect of an occupational pension scheme determined by the Board under section 189(7)(b).”

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