Catchpole v Trustees of the Alitalia Airlines Pension Scheme & Anor

This is the appeal of the Appellant (“Mr Catchpole”) against a Determination of the Pensions Ombudsman dated 20 January 2010 (“the Determination”) dismissing Mr Catchpole’s Complaint dated 7 May 2009 (“the Complaint”). Mr Catchpole complained of maladministration on the part of the trustees of the Alitalia Italian Airlines Pension and Assurance Scheme (“the Trustees” and “the Scheme”), a balance of cost final salary pension scheme. The sponsoring employer under the Scheme, Alitalia-Linee Aeree SpA (“A-LA”), is named as a respondent in the Complaint, although it is not clear that Mr Catchpole actually made any complaint against it.

Mr Catchpole had for many years, until her death on 24 September 2007, a long-term partner, Teresa Brahja (“Ms Brahja”) with whom he lived. She was a member of the Scheme. Mr Catchpole now claims to be entitled to a spouse’s pension under the Scheme in the circumstance which I will explain. The Trustees rejected the claim. The Pensions Ombudsman upheld their decision in the Determination. It is against that decision that Mr Catchpole now appeals

On this appeal, Mr Grant appears for Mr Catchpole. Neither the Trustees nor A-LA appear on the appeal.

The following facts are not in dispute and appear mainly from the Determination.

Ms Brahja wrote a letter to a Mr GS, the Scheme Secretary, on 9 March 2004. It was addressed to him as such. She asked what Mr Catchpole’s status would be with regard to death benefits:

The response came from a Ms A-H on the same day. Although the Pensions Ombudsman does not mention this, she wrote on headed Alitalia notepaper (the company name “Linee Aeree Italiane SpA” appearing at the bottom of the letter); but as he did mention, she was the Personnel Services Specialist at the employer. She wrote as follows:

This letter was, the Trustees accept, incorrect. In fact the rules of the Scheme only provide for a pension to be paid to a person who was legally married to the member, or if there is no such person, the Trustees may pay an equivalent pension to a person who was “…wholly or mainly dependent on the Member for maintenance and support…”. The quoted definition of spouse applies only for a limited purpose and not for the purposes of the rule which provides for a spouse’s pension.

In relation to this exchange, the Pensions Ombudsman said this:

This is not challenged and seems obviously correct. As to the minutes, see paragraph 12 below.

Ms Brahja’s contract of employment was transferred to Alitalia Servizi SpA with effect from 1 May 2005 and then to Alitalia Airport Ltd with effect from 10 December 2006.

The Pensions Ombudsman recorded Mr Catchpole’s evidence as being that Ms Brahja was in generally good health until 2004 when she suffered from weight loss following the death of her uncle and was consequently signed off work for an extended period. In 2007 she was diagnosed with depression and prescribed appropriate medication. Later that year she developed jaundice and was admitted to hospital on 13 August. She was treated on a general ward but on 21 September suffered serious internal bleeding. At that point her condition was diagnosed as terminal and she died on 24 September.

On 29 October 2007, Mr Catchpole applied to the Trustees for a spouse’s pension. On 11 February 2008 he received a letter from the scheme administrators saying that he had no right to a spouse’s pension under the Scheme although the Trustees did have a discretion to award a dependant’s pension. It was suggested that he provide documentary evidence to demonstrate his dependency in order to claim such a pension. His claim to a dependant’s pension based on dependency was in due course rejected by the Trustees. That rejection formed part of the Complaint, but the Pensions Ombudsman found against him. There is no appeal from that part of the Determination and I need say no more about it.

An extract from the minutes of the Trustees’ meeting of 17 April 2008 reads as follows:

At their meeting of 18 June 2008, the Trustees considered the case of Ms Brahja. Included in the minutes of the meeting is the following:

The Pension Ombudsman recorded what Mr Catchpole had to say in this way:

That, I think, reflects what Mr Catchpole submitted to the Pensions Ombudsman in response to the draft Determination which the Pensions Ombudsman sent to the parties. I shall return to that in a moment

What the Pensions Ombudsman does not record, however, is the fact that Ms Brahja had made Will dated 27 March 2005 under which Mr Catchpole was her universal legatee.

Nor does he record the contents of the Complaint in the section headed “Details”. It is very brief and I set it out in full:

The Pension’s Ombudsman held that the Trustees had been guilty of maladministration in giving the incorrect information which they did to Ms Brahja. However, he nonetheless rejected Mr Catchpole’s complaints. As I have said, there is no appeal against his rejection of the complaint about the refusal of a discretionary dependency pension; I am concerned only with the rejection the complaint about the refusal by the Trustees to pay a spouse’s pension to him. The Pensions Ombudsman’s reasons on this aspect of the case were short and I set them out in full:

Mr Catchpole and Ms Brahja had been living together for 20 years. They were evidently in a relationship that they regarded as permanent without any need for marriage,

Mr Catchpole’s assertion that they would have married, in particular noting that he says that he and Ms Brahja would not have regarded getting married as a particularly significant matter.

Ms Brahja was healthy at the time of her enquiry. Her illness was not identified as serious until very shortly before she died

Inheritance tax (though of significantly less significance than the future pension) could have been avoided by being married

The Pensions Ombudsman began his reasons quoted above by identifying a question which he saw it as necessary to answer, namely what would Ms Brahja and Mr Catchpole have done if they had been correctly informed that they would have to be married if Mr Catchpole were to be entitled to a spouse’s pension. Mr Grant submits that this is not the right question to ask in addressing whether the remedy to which Mr Catchpole is entitled as a result of the Trustees’ maladministration. I will return to this aspect later in this judgment.

Assuming that the question which the Pensions Ombudsman asked himself is a relevant question, was he entitled to reach the answer which he did? I put the question that way because it is not for me, on an appeal, to substitute my own view or findings of fact for those of the Pensions Ombudsman: appeals to this Court are on points of law. But I am entitled to interfere with a conclusion of fact if is one which the evidence simply does not support.

At this stage, I should mention that Mr Catchpole wrote a letter dated 14 December 2009 to the Pensions Ombudsman in response to receipt of the draft Determination sent on 17 November 2009. What became paragraphs 19 to 21 in the actual Determination (see paragraph 19above) appeared as paragraph 18 in the draft. It read as follows:

Mr Catchpole made a number of points about that. He said that the conclusion appeared based on the view that marriage would have been a major step saying:

The Pensions Ombudsman must have recognised that he could not expressly impute to Ms Brahja and Mr Catchpole the view that marriage would have been a major step. He removed this reference from the final Determination. I would only add that, if he continued to harbour that belief but did not state it, he would have been wrong to do so since (a) Mr Catchpole’s position was a perfectly reasonable one to be held in England in 2004 and (b) there was no evidence before the Pensions Ombudsman which would have entitled him to conclude that marriage would have been seen as a major step.

Mr Catchpole then drew attention to the only evidence (apart from his own assertions) that was available on the subject, namely the Trustees’ own view that he and Ms Brahja would have married if that is what it would have taken to be eligible to receive the spouse’s benefit, referring to the minute of the Trustees’ meeting on 18 June 2008. Mr Catchpole actually underplayed his hand in putting it that way. It was Ms A-H’s belief that they would have married and Ms Brahja was known to Ms A-H. As Mr Catchpole pointed out in his letter, Ms Brahja was well known to some of the people involved in the process. The Trustees concurred in that view; so we have both the Trustees and Ms A-H holding the same view.

Mr Catchpole points out that there is no evidence to the contrary. Why then did the Pensions Ombudsman reach the conclusion he did? Well, his reasons are set out at paragraph 19 above. Let me take the four bullet points in order:

They lived together for 20 years in a relationship which they regarded as permanent without any need for marriage. But this, with respect, is entirely neutral. There is no doubt that they were happy to remain unmarried unless there was a good reason to marry. They had contemplated marriage as Ms Brahja was approaching the age of 50 but decided against it. Marriage was not therefore something to which they were opposed in principle.

The Pensions Ombudsman refers to Mr Catchpole’s assertion that they would have married. He noted that Mr Catchpole said that he and Ms Brahja would not have regarded getting married as a particularly significant matter. I am not clear whether the Pensions Ombudsman regarded that last point as one in favour of Mr Catchpole or against him. It has a ring of scepticism about it. There is nothing in the evidence, however, which would suggest that marriage was regarded as significant. Indeed, this was one matter about which Mr Catchpole complained in his letter dated 14 December 2009. The changes from the draft Determination would suggest that the Pensions Ombudsman accepted this.

Ms Brahja’s health was referred to. Again, I am not sure whether this is a point in favour of Mr Catchpole or against him. Ill health may focus the mind and induce a real sense of urgency in taking action to ensure the financial security of a loved one; but quite clearly Ms Brahja had concerns in 2004 and nothing remotely odd can be seen in an acceptance of marriage, if necessary, as the way to deal with those concerns.

Inheritance tax is perhaps a factor against Mr Catchpole. If his financial security was a major concern in relation to pensions, why, it might be asked, was it not similarly a concern in relation to inheritance tax which would have been avoided if they had been married? This issue was not put to Mr Catchpole in correspondence and it did not feature in the draft Determination. He had no opportunity to respond to it.

It should perhaps be noted that the Pensions Ombudsman has decided only that he is not satisfied on the balance of probabilities that Ms Brahja and Mr Catchpole would have married; he has not, in terms at least, decided on a balance of probabilities that they would not have married. This must simply have reflected the way in which he saw the burden of proof as lying.

In my judgment, the decision of the Pensions Ombudsman on the evidence before him was not one which he could properly have reached. Mr Grant would call the decision perverse; but whatever epithet one uses it cannot stand. I appreciate that the procedures before the Pensions Ombudsman are, on the whole, informal and that complaints are, usually, dealt with on paper. It is sometimes possible on the papers alone to reject what a complainant or other person says in a letter or sometimes even in a witness statement without the need to hear oral evidence under oath from that party. Sometimes what is said is flatly inconsistent with contemporaneous documentation which is not open to challenge; sometimes a story is so inherently implausible that it can be rejected. No doubt there are other circumstances where what is said in a letter can safely be rejected.

But nothing like that applies in the present case. Instead, we have the following:

The original letter seeking clarification and asking whether “we need to be legally married” to enable Mr Catchpole to receive a spouse’s pension.

Mr Catchpole’s evidence that marriage was contemplated just before Ms Brahja’s 50^th birthday but which was decided against. If accepted, that evidence would suggest that they had no principled objection to marriage.

Mr Catchpole’s evidence that they would have married had they appreciated the correct position.

The fact that his evidence represented a perfectly rational and reasonable response to the question what they would have done if they had appreciated the true position.

The view of Ms A-H and of the Trustees that Ms Brahja and Mr Catchpole would have married.

The fourth of those matters is of some importance. Why, Mr Catchpole asked the Pensions Ombudsman, would Ms Brahja have written the letter which she did? The answer, obviously, is because she and Mr Catchpole wanted to know his position on her death. Why did they want to know that? There can be only two answers, it seems to me. The first is because, if there was no entitlement, they would marry having no principled objection to marriage. The second is that if there was no entitlement, they would want to know as much in order to plan financially for the future but remaining unmarried. Even viewed in complete isolation, I am bound to say that I would find the latter answer odd, although not impossible: a couple resolutely opposed in principle to marriage might want to know whether a spouse’s pension would be available in the absence of marriage. But if that was Ms Brahja’s position, the wording of the actual request for information made by her was very odd indeed. I would not expect a person resolutely opposed to marriage to ask whether “we need to be legally married” rather than asking whether the benefit is only available to a married person.

That oddity is not the real point, however, because the question (Why did they want to know?) is not to be viewed in isolation. It is to be viewed in the context of what the evidence shows about these particular persons. As to that, it is sparse but all one way namely the view of Ms A-H and the Trustees that they would have married.

Finally, there is the evidence of Mr Catchpole himself. That evidence can, of course, be seen as self-serving. It is perhaps appropriate to treat such material with care and to allow it to be displaced by less forceful evidence than in the case of statements from independent persons. But in the present case, there is, so far as I can detect, no countervailing evidence save for the fact that inheritance tax saving was not a sufficient consideration to result in marriage. There is, accordingly, nothing which can justify rejecting the evidence of Mr Catchpole which, as I have said, represents a wholly rational and reasonable explanation of what would, in fact, have happened if the true position had been appreciated.

For these reasons, I consider that the Pensions Ombudsman was wrong to answer his own question in the way which he did.

Mr Grant submits, as I have mentioned, that the question which the Pensions Ombudsman asked was, in any case, the wrong question. He submits that the present case is one concerning maladministration, and that the question is whether Mr Catchpole has suffered injustice “in consequence of maladministration,” on the part of the Trustees: see section 146(1) Pensions Schemes Act 1993. It is not necessary in the present case in order to establish injustice to show that Ms Brahja and Mr Catchpole would have married. Now, that may be true in relation to compensation designed to compensate for inconvenience and suffering.

But, the substantive relief which Mr Catchpole seeks is a declaration that he is entitled to a spouse’s pension. His claim stands or falls, in my view, as a claim based on estoppel by representation or estoppel by convention. His rights are no better and no worse than if he had commenced an action for a declaration in this Court. As Lewison J explained the position in Arjo Wiggins Ltd v Ralph [2009] EWHC 3198 (Ch), [2010] PLR 11 (at paragraph 13):

Thus, whether the substantive claim is put as one based on maladministration, or whether it is based on the other arm of the Pension Ombudsman’s jurisdiction (that is to say to investigate and determine any dispute of fact or law) the issue is the same in each case: Can Mr Catchpole establish that the Trustees are bound by an estoppel as a result of which he is entitled to claim a spouse’s pension? In answering that question I propose to proceed in two stages. The first stage will be to see if it is possible, prima facie, to establish an estoppel; the second stage will be to see whether the fact that Mr Catchpole makes his claim against the Trustees as trustees of a pension scheme, makes any difference.

Although Mr Grant relies principally on estoppel by representation, he also relies on estoppel by convention. He realistically acknowledges that the former is his better case and that if he cannot succeed on that, he is unlikely to succeed on the latter; and if he succeeds on the former, he does not need to rely on the latter.

I do not propose to embark on a lengthy analysis of either variety of estoppel. Such analyses have already been carried out most recently by the Court of Appeal in Steria v Hutchinson [2006] EWCA Civ 1551, [2007] ICR 445 and by Briggs J in HMRC v Benchdollar Ltd [2009] EWHC 1310 (Ch), [2010] 1 All ER 174.

I start with estoppel by representation and with what Neuberger LJ had to say about it in Steria v Hutchinson at [91] to [94]:

As to factor (b) (an act on the part of the claimant etc), there are two comments I would make. First, a failure to act can, in certain circumstances, give rise to an estoppel just as much as a positive act. Thus, in the present case, the second condition will be fulfilled if Ms Brahja and Mr Catchpole decided not to marry in the light of their belief as to Mr Catchpole’s pension entitlement. Secondly, I note what Neuberger LJ said in Steria v Hutchinson about the “but for” test at [117]:

Briggs J has carried out an extensive review of the authorities in HMC v Benchdollar Ltd. His conclusions, which I gratefully adopt, are to be found at [52]:

Given my conclusion that the only proper conclusion which could be drawn from the evidence is that Ms Brahja and Mr Catchpole would have married if they had known of the true position under the Rules of the Scheme, the necessary classic ingredients for an estoppel by representation are established:

First, there is a clear representation on behalf of the Trustees and by which they are bound to the effect that Mr Catchpole would be entitled to a spouse’s pensions. The letter from Ms A-H did not state that result in express terms, but it is a necessary consequence of what she did say. She said that she had checked the definition of “spouse” which she then quoted. The underlined words “who is living with the member as his spouse” clearly applied on the facts to Mr Catchpole and continued to apply until Ms Brahja’s death.

Secondly, it necessarily follows from the only proper conclusion that Ms Brahja and Mr Catchpole would have married if they had appreciated the true position that the incorrect information which they were given resulted on their failing to marry. This is a case where the “but for” test, or something very close to it, is in fact satisfied. Assuming that an accurate reply had been given to Ms Brahja’s request, she would have married Mr Catchpole and in that sense, “but for” the incorrect information, they would not have acted (by failing to marry) as they did. Now it is true that in theory the Trustees might not have replied to the request at all so that it cannot be said for certain that come what may, they would have married “but for” the reply. But it is not realistic to think that, absent a reply at all, matters would have simply rested there and, indeed, it is highly unlikely that responsible trustees (which there is no reason at all to think these trustees were not) would fail to reply. At the very least, one can say that “but for” the misrepresentation, either they would have married or would have pressed the Trustees for an answer. If, after being pressed, the answer given had been the same as the one actually given, the same misrepresentation would have resulted. If the answer had been correct, they would have married.

The opportunity to put matters right was lost when Ms Brahja died; and she died at a time before the true position had been appreciated by her and Mr Catchpole. Accordingly, in my judgment, Mr Catchpole will suffer detriment unless the Trustees are held to their misrepresentation so as to treat him as a spouse for the purposes of the benefits payable on Ms Brahja’s death.

Accordingly, the prima facie position is, in my view, that an estoppel by representation did arise by reason of the matters discussed in the last paragraph.

That is not the end of the matter, however. There are two further aspects which need to be addressed.

The first is that the letter dated 9 March 2004 was sent by Ms Brahja and it was she who was seeking information. The response from Ms A-H was sent to and directed at Ms Brahja and not at Mr Catchpole.

The second is that the result of the alleged estoppel is to increase the liabilities of the Trustees which will then be a further call on the assets of the Scheme, an increase which has not been authorised by the Rules of the Scheme.

Taking these in turn, I consider that Mr Catchpole is nonetheless able himself now to assert such an estoppel. He might do so in one of two ways:

First, he can argue that the request made by Ms Brahja was made on behalf of both of them and/or that the response from the Trustees was clearly intended to be a response to both of them or at least one on which both of them could rely. If this argument is correct, then the Trustees are estopped as against Mr Catchpole from denying that he was not her spouse for the purposes of the relevant benefit rule of the Scheme.

Secondly, he can argue that Ms Brahja was entitled to and did rely on the representation and as a result they did not marry. Even if the representation was not made to him directly, it was clearly one of which he knew: even though the Pensions Ombudsman did not expressly state that to be the case, it is clear from Mr Catchpole’s evidence that he did know (and indeed relied on it). In that case, the representation was made to a person (Ms Brahja) who was entitled to and did rely on it by not marrying Mr Catchpole. It was clearly her belief and intention that he should, through her membership of the Scheme, become entitled to a benefit. It would be unconscionable now, when Ms Brahja is no longer alive so that there is no possibility of her eliminating the adverse consequences of the misrepresentation by marrying, for the Trustees to assert as against Mr Catchpole that he is not to be treated as a spouse.

If the first argument is not a good one, the second argument, in my judgment, is. Accordingly, the Trustees cannot be heard to say as against Mr Catchpole that he is not the surviving spouse of Ms Brahja.

A number of authorities have considered the difficulties facing estoppel claims in the context of pension schemes. These have been addressed mainly in the context of estoppel by convention and what have been termed “group estoppels”. Some of the problems in that context were identified by Sir Andrew Morritt V-C in Redrow plc v Pedley[2002] EWHC 983 (Ch), [2002] Pen LR 339 at [60] to [64]. Lewison J noted those difficulties in his judgment in Trustee Solutions Ltd v Dubery [2006] EWHC 1526 (Ch)[2007] ICR 412 adding some more difficulties of his own. Thus, although the courts have recognised the possibility of establishing estoppels binding trustees of pension schemes, they are to be approached with caution. I have very much in mind here the cautionary words of Neuberger LJ in Steria v Hutchinson at [109]:

The observation in the first sentence is relevant to the present case. It is apparent from the evidence that the financial state of the Scheme is not good. I do not know what, if any, shortfall there is in the assets as compared with the liabilities of the Scheme. However, on any view, for the Trustees to provide a benefit for Mr Catchpole to which, under the rules of the Scheme, he is not entitled will have an adverse effect, I expect small but nonetheless adverse, on other beneficiaries. The Trustees cannot, it might be said, estop themselves from denying a benefit to a person to the detriment of their beneficiaries when the Rules of the Scheme do not authorise the payment of such a benefit.

At this stage I wish to identify how it is that the alleged estoppel, if established, would operate. It is tempting to see an analogy with a case where trustees commit a tort or are in breach of contract in carrying out their duties as trustees. In such a case, it is only the trustees who actually commit the tort or who have made the contract who are liable to the person who claims damages against them in respect of the tort or breach. A trustee who is held liable will often be able to rely on an express or implied right to recoup or indemnify himself out of the assets of the trust of which he is trustee, and this will be so even if he has ceased to be a trustee by the time of the claim. The claimant, for his part, may be subrogated to the rights of the trustee against the trust fund but this will be available only to the extent that the trustee himself has a right. Accordingly, if the trustee is liable to account to the trust for some reason, for instance of a breach of trust, the right of recoupment will be reduced (perhaps to nil) and the claimant’s right of subrogation correspondingly reduced.

Similarly, it might be said that Mr Catchpole’s claim is really only against the persons who were the trustees at the time of the misrepresentation. It is they who are liable, as a result of their own misrepresentation giving rise to the estoppel, to pay him a spouse’s benefit and it is for them to recoup themselves, if they are entitled to do so, out of the funds of the Scheme. As a matter of principle, this is an unattractive analysis. It is open to at least two serious objections:

First, if the Trustees cease to be trustees of the Scheme and are replaced by new trustees, it is not easy to see how the Trustees could, on this analysis, remain liable to pay Mr Catchpole any benefits. Unlike the case of a tort or breach of contract where the liability is that of the tortfeasor or contracting party who does not cease to be liable when he ceases to be a trustee, the estoppel is only that the Trustees are prevented from denying that Mr Catchpole is to be treated as a spouse. When the Trustees cease to be trustees, they cease to be liable to pay any benefits to any beneficiary of the Scheme. True it is that they cannot deny that Mr Catchpole is a spouse but that itself does not impose on them a warranty that the trustees from time to time will accept Mr Catchpole’s status. Unless the new trustees are also bound to recognise Mr Catchpole as a spouse, it gets him nowhere to say that a former trustee has to do so.

Secondly, it leaves Mr Catchpole in a worse position than other beneficiaries if there is no right of recoupment or indemnity for the Trustees. Even if there is prima facie such a right, there remains the possibility, however theoretical it may be on the facts, that in the future (a) the Trustees will have insufficient assets personally to meet his pension and (b) the Trustees will have no right of recoupment or indemnity because they have lost it for some reason.

Another approach, however, is to view the estoppel (assuming that one arises at all) as directly binding not only on the Trustees but on any successor trustee just as the trusts of the Scheme itself are binding. This, I think, must be the right approach. If there is an estoppel at all, it ought to put Mr Catchpole in the same position as if he actually had been married to Ms Brahja. This has been, implicitly, the approach of the courts when considering group estoppels and any other approach in that sort of case could only led to chaos.

There is, in principle, no difficulty in giving effect to an estoppel in this way. The trust itself is a creature of equity and estoppels are but another aspect of the intervention of equity in the legal relationships between persons. It is conceptually perfectly straightforward to see a misrepresentation by a trustee of a pension scheme as to the existence or level of a benefit at a particular time as becoming institutionalised, as it were, within the trust. Thus in the present case, the beneficiaries and future beneficiaries of the Scheme can no more deny that Mr Catchpole is a beneficiary than can the Trustees; and the same goes for their successors.

The question then is whether the prima facie claim which Mr Catchpole has based on estoppel by representation is excluded or qualified given the impact which the estoppel alleged (and which would operate in the way I have discussed if established) has on the benefits of the members and other beneficiaries under the Scheme. I have not had the benefit of full argument on this aspect of the case and, in the absence of representation on behalf of the Trustees, I do not, therefore, propose to decide more than I must.

On the facts of the present case, Mr Catchpole is, in my judgment, able to rely on the misrepresentation as giving rise to an estoppel preventing the Trustees and their successors in title, and so as to be binding on the members and other beneficiaries under the Scheme, from denying that Mr Catchpole is the surviving spouse of Ms Brahja for the purposes of the relevant benefit rule of the Scheme (that is to say, the rule providing for a spouse’s pension on the death in service of a member). Although the provision of this benefit outside the rules of the Scheme may impact adversely on the interests of other beneficiaries, those interests do not, in all the circumstances, justify a departure form the prima facie conclusion that it would be unconscionable for the Trustees to deny Mr Catchpole’s claim.

In particular, this is a case where Ms Brahja and Mr Catchpole could and would have put themselves into a position where Mr Catchpole would have been entitled as of right to the benefit which he claims. They could have done so by marrying. This was, of course, a step which they could have taken without the reference to the Trustees; and had they taken it, the benefit would have become payable as of right without the exercise of any discretion by the Trustees.

This is not a case where the Trustees could have, but did not, exercise a discretion which it is now too late to exercise. Still less is it a case where an amendment to the Scheme would have been needed to introduce the benefit claimed. Where the exercise of a discretion or of a power of amendment is necessary to give rise to a benefit claimed by way of estoppel, it might be more difficult to say that it would be unconscionable for the Trustees do deny the claim since that would be to impute to them a decision (which they had not in fact made) to exercise their discretion or to amend the scheme in favour of the claimant.

In contrast, in the present case, where no action was required by the Trustees, the position is, in my view, entirely distinguishable. It would be unconscionable now for the Trustees to treat Mr Catchpole as in a different position from that which he would have been in, and which they could not have prevented from arising, but for their misrepresentation. Since it could not have prevented, the members and other beneficiaries of the Scheme can have no complaint, in my view, if full effect is now given to the estoppel.

In the light of these conclusions, it is not necessary for me to reach any conclusions on Mr Catchpole’s claim based on estoppel by convention. I would only observe that such a claim faces a number of difficulties, including in particular the very considerable difficulty is demonstrating the subsequent mutual dealing between the parties which is a necessary ingredient of such a claim: see the fourth factor identified by Briggs J as set out in paragraph 42 above.

The Pensions Ombudsman did not expressly deal with the possibility of a modest award for inconvenience. Mr Grant submits that if he were wrong on the substantive appeal, Mr Catchpole would be entitled to an award for inconvenience. Since Mr Catchpole is successful in the substantive appeal, I do not address this submission further.

Mr Catchpole’s appeal on the substantive issue succeeds. He is to be provided with benefits under the Scheme as if he had been lawfully married to Ms Brahja at the date of her death.