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NATIONAL UNIVERSITY of IRELAND, GALWAY
JOINT PENSION SCHEME
2005 PENSION SCHEME (‘MODEL SCHEME’)
APPEAL MECHANISMS
1. Introduction
While the University has considerable experience in the administration of its pension schemes over a long period of time, it acknowledges that a dispute may arise in regard to how the detailed provisions of the Scheme are implemented, particularly if such a dispute involves an alleged loss of benefit to a member, a former member or other actual or potential beneficiary (referred to here as a
‘complainant’).
This Memorandum, while advocating as an initial step the presentation of the issue in dispute to an informal re-examination by the University, sets out the various informal and legal avenues open successively to an aggrieved complainant.
2. Informal Appeal Procedure
Prior to making use of the formal procedure, it may be useful for the complainant to contact the Pensions and Investments Office for a discussion on the matter at issue. If the matter is not clarified and resolved to the satisfaction of the complainant, the Pensions and Investments Office may refer the matter at issue for review by a member of University staff who has not dealt with the matter before. If the issue still remains unresolved, the matter will be referred to the
Finance Resource Committee or such other committee as the Governing
Authority may determine. (the ‘Committee’).
The Committee will consider the matter at issue as set out in writing by the complainant; it will also consider a report on the complaint prepared by the
Pensions and Investments Office. If the Committee deems it appropriate, it will seek independent professional advice to assist in its deliberations on the complaint.
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3. Formal Procedure
If the complaint is not resolved by the decision of the Committee, the complainant has the option to refer the matter for more formal consideration under the Internal Dispute Resolution (IDR) procedures, provided that the matter at issue falls within the type of complaint eligible for IDR.
If desired by the complainant, the Pensions and Investments Office will assist in clarifying the mode of making a formal complaint and in advising as to the documentation required for the IDR.
Full details of the IDR procedures are set out in the Regulations for Internal
Dispute Resolution in relation to the NUIG Pension Schemes; a summary of the procedures is contained in Section 4.
4. Internal Dispute Resolution
The IDR procedure is one required by law 1 . As the Scheme is a ‘public authority scheme’ as defined by the regulations 2 , a dispute or complaint under IDR is referred to a ‘relevant person’, defined by the regulations 3 as ‘the Minister or
Ministers to whom there is a right of appeal.”
Under the university legislation 4 , there is provision for the referral of a dispute as to “…the amount of any pension, gratuity or allowance payable in pursuance of a scheme…it shall be submitted to An tUdaras 5 for determination by An tUdaras subject to the agreement of the Minister (for Education and Skills) and the Minister for Finance.”
In practice, the matter in dispute, not having been resolved within the University, is referred to the HEA, which in turn, consults with the Minister for Education and Skills and the Minister for Finance.
While the informal appeal procedures referred to above in Section 2 may be applied in the case of any complaint or dispute arising in relation to the operation of a pension scheme, the more formal IDR is confined to the types of complaints set out in the legislation. Thus, there are two types of complaint eligible for IDR:
1 The Pensions (Amendment) Act, 2002, section 132, provides that the Minister for Social and Family Affairs (now the Minister for Social Protection) may require the trustees of a pension scheme to establish procedures for dealing with specified complaints. The Minister did so in the Pensions Ombudsman
Regulation, 2003 (S.I.No. 397/2003), article 5.
2 Pensions Ombudsman Regulations, 2003 (S.I. No. 397/2003), article 2.
3 Ibid., article 2.
4 Universities Act, 1997, Fifth Schedule, section 5.
5 An tUdaras um Ard-Oideachas – the Higher Education Authority (HEA).
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(1) a complaint alleging financial loss occasioned by an act of maladministration, or
(2) any dispute of fact or law in relation to an action by a person responsible for the management of the pension scheme.
An appeal application must be in writing and must contain all the necessary information to enable the complaint to be fully considered. If desired by the complainant, the Pensions and Investments Office will provide information on the level of detailed information required. The application is submitted to the
HEA, which reserves the right to contact the complainant’s University for other information it deems necessary to consider the appeal.
Within two weeks of receipt of the application, the HEA will forward all documentation received from the complainant to the Department of Education and Skills and the Department of Finance. Both departments will consult the
HEA to ensure they have the full facts of the case of and of the pension scheme rules.
Within three months from the date on which all the details of the complaint have been received by the HEA, the HEA with the consent of the Minister for
Education and Skills and of the Minister for Finance shall make a
‘determination’ in relation to the application and shall notify the complainant.
This notification of the determination shall include a statement of the determination, a reference to any legislation, legal precedent, ruling of the
Pensions Board, ruling or practice of the Revenue Commissioners or other material relied upon in the making of the determination. The notification shall also include a reference to the provisions of the Pension Scheme relied upon in making the determination and, where a discretion has been exercised, a reference to the pension scheme provisions by which such discretion is conferred.
The notification will contain a statement that the determination is not binding upon any person unless, upon or after the making of the determination, the person assents to be bound by it. It shall also advise that the complainant should check whether or not the complaint or dispute is one in respect of which the
Pensions Ombudsman has jurisdiction to investigate 6 ; it shall also point out that further information can be found in an information booklet available from the
Office of the Pensions Ombudsman and how that Office may be contacted.
6 Under s. 131 of the Pensions Act 1990. See Section 5. Pensions ombudsman.
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5. Pensions Ombudsman
The office of Pensions Ombudsman is established by law 7 The role of the office is to investigate and decide certain complaints and disputes concerning, inter
alia, occupational pension schemes, including public sector pension schemes such as the pension schemes operated by NUIG. The types of issues which may be referred to the Pensions Ombudsman are the same as those specified for IDR, viz.,
(1) a complaint alleging financial loss occasioned by an act of maladministration, or
(2) any dispute of fact or law in relation to an action by a person responsible for the management of the pension scheme.
The Pensions Ombudsman cannot, as a general rule, investigate a complaint or dispute until the matter has been submitted to the IDR procedure and a determination issued. However, if a Notice of determination has not been issued after more than 3 months, a case may be accepted for investigation at the discretion of the Pensions Ombudsman. A complaint that has already been brought to court cannot be investigated by the Pensions Ombudsman.
Two separate time-limits apply for bringing a complaint, depending on when the event happened which gives rise to the complaint. If it happened before the 28th
April 2003 (the day the Pensions Ombudsman was appointed) it can be investigated as long as the date of the occurrence was not earlier than 13th April 1996. If it happened on or after 28th April 2003, the matter must be referred before the later of:
6 years from the date of the act or event giving rise to the complaint or dispute or
3 years from the date on which you were aware – or ought to have been aware – of the problem.
The submission of a complaint or dispute requires the completion of a Complaint
Form. Assuming that the matter falls within the jurisdiction of the Pensions
Ombudsman, a decision will be made as to whether the case should be accepted for mediation nor go to formal investigation.
7 Pensions (Amendment) Act, 2002, which amended the Pensions Act, 1990, and subsequent amending legislation and regulations., in particular the Pensions
Ombudsman Regulations, 2003 (S.I. 397/2003)
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Mediation is a process designed to seek solutions to problems, which will be acceptable to all parties. This course of action usually saves time and the final solution has the agreement of all concerned.
A formal investigation generally involves a longer period. The Pensions
Ombudsman will then make a decision, called a Final Determination. If the determination concludes that the complainant has suffered a financial loss, financial compensation, limited to the amount of any actual loss, may be awarded.
If a party to the complaint or dispute fails or refuses to comply with any determination, the other party may request the Circuit Court to make an order directing compliance with the determination.
The Pension Ombudsman’s determination is final but may be appealed to the
High Court by any party.
Further information is contained in a booklet entitled What can the Pensions
Ombudsman do for you? and in other documentation issued by the Office of the
Pensions Ombudsman.
6. Appeal to the High Court
A determination of the Pensions Ombudsman may be appealed to the High Court within 21 days of that determination and the High Court may either, if it thinks fit, annul the determination, confirm it or modify it.
7. Other Complaints or Disputes
Generally, complaints or disputes which cannot be investigated by the Pensions
Ombudsman may fall to be investigated by other authorities. For example, ` pension scheme matters as regards compliance with the requirements of the
Revenue Commissioners is a matter for determination within revenue procedures.
Matters of general compliance with the Pensions Act are the responsibility of the
Pensions Board. The Board also has statutory power in relation to certain matters prescribed by the Pensions Act, including those concerning equal treatment of men and women.; other equal treatment disputes are the concern of the Equality Tribunal.
[The Pensions Ombudsman is completely independent and has a statutory responsibility, as outlined above, to deal with individual complaints made by members of the public on certain pension matters involving both maladministration and financial loss; the Office is funded by the taxpayer. The Pensions Board, on the
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other hand, has a statutory responsibility to monitor and supervise the pensions industry generally and is funded by a levy on pension schemes.]
However, if a matter referred to the Pensions Board may involve a financial loss, the Board and the Pensions Ombudsman may investigate the matter jointly.
There are no formal procedures for conveying information regarding complaints or disputes on pension matters relevant to these authorities., which may be contacted by post, e-mail or telephone.
8. Contact details
Pensions and Investments Office,
National University of Ireland, Galway.
Galway.
Tel. : 091 492 145
Fax.: 091 587 997
Email: pensions@nuigalway.ie
Higher Education Authority,
Brooklawn House,
Crampton Avenue,
Shelbourne Road,
Dublin 4.
Tel.: 01 231 7100
Tel. Lo-Call: 1890 200 637
Fax.: 01 231 7172
Web: www.hea.ie
Email: info@hea.ie
Office of the Pensions Ombudsman,
36 Upper Mount Street,
Dublin, 2.
Tel.: 01 647 1650
Fax: 01 676 9572
Web: www.pensionsombudsman.ie
Email: info@pensionsombudsman.ie
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The Pensions Board
Verschoyle House,
28/30 Lower Mount Street,
Dublin 2
Tel.: 01 613 1900
Fax: 01 631 8602
Web: www.pensionsboard.ie
Email: pb@pensionsboard.ie
Financial Services (Pensions)
Business Inspector of Taxes
Shelbourne House
Shelbourne Road Dublin 2
Tel.: 01 631 8920
Fax: 01 631
8927
Web: www.revenue.ie
December, 2011
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