Pensions Ombudsman given legal power to enforce his Determinations through the courts.
The Pensions Ombudsman, Mr Paul Kenny, has welcomed the decision by the Minister for Social Protection to provide him with the legal power to have his Determinations enforced through the courts.
When the Pensions Ombudsman issues a Determination on a complaint he has investigated, it is binding on all parties subject to appeal to the High Court within 21 days. If a party fails to implement the terms of a Determination, enforcement up to now was a matter for either a party to the complaint or the Minister, if he/she was of the opinion that it was appropriate to do so having regard to all the circumstances. This Ministerial power of enforcement was transferred to the Pensions Ombudsman earlier this year but required an amendment to the Rules of Court. The resultant change in these Rules came into force on 10 October, 2010.
Mr Kenny said: "Heretofore, in the event that the Minister decided it was appropriate to seek enforcement, the procedure could involve the Minister's Department, the Chief State Solicitor’s Office and possibly even the Attorney General, all of whom would have to familiarise themselves with the detail of what could be a very complicated case. The new process should certainly be more efficient. However, I would take the view that, as was the position up to now, the question of enforcement is a matter, in the first instance, for the parties involved in the complaint and it would only be in unusual circumstances that I would step in to enforce my determination. I have developed criteria under which applications for enforcement will be considered and each application will be considered on its merits." These criteria are now available on the Pensions Ombudsman's website www.pensionsombudsman.ie/cms/index.php?q=works/decisions/enforcing
1. Under the Pensions Act 1990, as amended, the Pensions Ombudsman investigates and decides on complaints and disputes that an individual has suffered a financial loss because of some failure in the administration of an occupational pension scheme, Personal Retirement Savings Account (PRSA), or Trust RAC. He is completely independent and impartial and has a small staff of nine people.
2. Section 21 of the Social Welfare and Pensions (No. 2) Act 2009 amended section 141 (1) (inserted by section 5 of the Pensions (Amendment) Act 2002) of the Pensions Act 1990 by substituting "the Pensions Ombudsman" for "the Minister". Section 141 (1) (a) now reads as follows:
If a party fails or refuses to comply with a determination of the Pensions Ombudsman under this Part ("a determination"), the Circuit Court shall, on application to it in that behalf by –
(i) the other party concerned, or
(ii) the Pensions Ombudsman, if he is of opinion that it is appropriate to do so having regard to all the circumstances,
make an order directing that party to carry out the determination in accordance with its terms
3. Circuit Court Rules set out how the Circuit Court will conduct its business in relation to particular kinds of actions. In the case of Pensions Ombudsman legislation, these rules provided that the application to the Court shall be made by way of originating Motion on Notice grounded upon affidavit and save by special leave of the Court, applications shall be heard only upon affidavit evidence.
22nd October, 2010