Enforcing the Determinations
If a party to a complaint or dispute fails or refuses to comply with a Determination of the Pensions Ombudsman, the Circuit Court may make an order directing that the party implement the terms of the Determination. Such an order may be applied for by the other party (usually the complainant), or by the Pensions Ombudsman, if he is of opinion that it is appropriate to do so, having regard to all the circumstances. Applications to the court for enforcement orders are made under special Rules of the Court entitled "Circuit Court Rules (Pensions Ombudsman) 2010" – SI No. 446 of 2010 which are effective from 10 October, 2010. Once such an order is made by the court, a party continuing to refuse to implement a Determination will be subject to court jurisdiction and may stand in contempt.
Decision by the Pensions Ombudsman to Enforce
The relevant section of the Pensions Act 1990 (as amended) is Section 141. Because of the wording of this section and the fact that a complaint case is personal to the complainant, the Pensions Ombudsman is advised that, in the first instance, the onus is on the party concerned to seek to have the Determination enforced through the courts, as this is a relatively straightforward legal procedure. However, the Act also provides that the Pensions Ombudsman may apply to the Circuit Court for an order requiring that his Determination be implemented if he is of opinion that it is appropriate to do so having regard to all the circumstances. Consequently, a case will have to involve special or unusual circumstances for him to become involved in the enforcement process.
Before deciding whether to seek such an enforcement order from the court, the Pensions Ombudsman will require a written submission from the party concerned, setting out in detail why that party cannot proceed with enforcement in their own right. He will then consider the matter in detail and may take into account any or all of the following factors before arriving at his decision:
- the case made by the party seeking enforcement;
- action(s) by any of the parties involved during the investigation or since the Determination issued;
- whether there was an appeal to the High Court and any implications therefrom;
- whether a matter of law is involved;
- length of time which has elapsed since Determination issued;
- the circumstances/actions of the other party;
- implications for future implementation of a pension scheme.
The above list is indicative only and it will be a matter for the Pensions Ombudsman, having reviewed all the circumstances of the case, to decide whether he will take a case for enforcement and his decision in this matter is final.