Wise v Sun Life Assurance Company of Canada (UK) Ltd

This is an appeal by John Adrian Wise against a determination of Deputy Pensions Ombudsman Karen Johnson (“the Ombudsman”) dated 29 July 2015 in which she rejected Mr Wise’s complaints of maladministration against (i) Sun Life Assurance Company of Canada (UK) Ltd (“Sun Life”) as successor to Confederation Life Insurance Co UK Ltd (“CLIC”) and (ii) the Trustees of the Hewlett-Packard Ltd Retirement Benefits Plan (“the Hewlett-Packard Scheme”). On 23 February 2016 Nugee J granted Mr Wise permission to appeal against the Ombudsman’s determination so far as it related to Sun Life, but refused him permission to appeal against the determination so far as it related to the trustees of the Hewlett-Packard Scheme. On 12 May 2016 Sun Life served a respondent’s notice seeking to uphold the Ombudsman’s determination on additional or alternative grounds. Subsequently Mr Wise and Sun Life agreed a settlement of one of Mr Wise’s two complaints against Sun Life. The sole remaining issue on the appeal is whether Mr Wise has sustained injustice in consequence of maladministration by Sun Life through the loss of a Guaranteed Annuity Right (“GAR”). The respondent’s notice raises the further issue of whether the Ombudsman had jurisdiction in respect of this complaint.

In support of his application for permission to appeal, Mr Wise served four witness statements made by himself, Jaqueline Lodge, Michael Pomery and Derrick Sequeira which had not been before the Ombudsman. Sun Life responded by serving a witness statement of Adrian Johnson. In addition, the parties have produced certain further contemporaneous documents which were not before the Ombudsman either. At the hearing it was sensibly agreed between the parties that the appeal should proceed by way of re-hearing rather than being limited to a review of the Ombudsman’s decision and that the five witness statements referred to above should be admitted in evidence. (I declined to admit a further witness statement of Mr Wise made only shortly before the hearing for the reasons I explained at the time.) Furthermore, although an appeal only lies to this Court from a determination of the Pensions Ombudsman on a point of law, it was agreed that the Court should re-consider the real issue between the parties on the appeal, which is essentially one of primary fact, in the light of all the evidence now available.

As I will explain, that issue turns on what happened in February and March 1990, over a quarter of a century ago. It is therefore pertinent to make the following observations about the evidence before proceeding further. First, given the passage of time, it is obvious that much greater weight should be placed on the evidence provided by the contemporaneous documents than upon the recollections of Mr Wise, Mrs Lodge and Mr Sequeria.

Secondly, that is all the more so given that the statements of those witnesses (i) were not professionally drafted, (ii) were not made with the benefit of having seen all the contemporaneous documents now available and (iii) have not been tested in cross-examination.

Thirdly, unfortunately the documentary record is far from complete. Moreover, some of the surviving documents are difficult to read because they have faded with time.

Fourthly, Mrs Lodge’s statement is stated on its face to be provided to Mr Wise “on a without prejudice basis”. Although it is not entirely clear what is meant by this, it would appear to mean that the statement was provided on the basis that it would not be admissible in any claim against Mrs Lodge. That must reduce the weight which can be placed upon it. Furthermore, Mrs Lodge’s evidence with respect to the nature of the policies sold by CLIC is not entirely consistent with the contemporaneous documentation.

Fifthly, Mr Pomery’s statement is in substance expert evidence for which no permission was sought in advance and which does not, at least in form, comply with the requirements of CPR Part 35 and Practice Direction 35 – Experts and Assessors. Although no objection was raised by Sun Life to the admission of this evidence, it can only be given limited weight.

In the early 1980s CLIC was a provider of financial services, including occupational pension plans and insurance-backed policies. One of its products was known as the Staffguard Plan. This was an insurance-backed occupational pension plan based on defined contributions. An employer company which wished to offer the Staffguard Plan would execute a declaration of trust establishing an occupational pension scheme for the purpose of providing retirement benefits for member employees. The declaration of trust would provide that the benefits would be secured by policies effected with CLIC. CLIC would then issue a policy to the employer or trustees of the scheme for the benefit of an individual member, pursuant to which contributions would be paid by way of premiums and CLIC would deduct expenses from the premiums before applying the remainder to the purchase of investment units managed by CLIC. On the member’s retirement, the trustees would cash in the units and use the proceeds to purchase an annuity contract for the payment of a pension to the member. Thus CLIC did not generally manage or administer the pension scheme itself, but did manage the underlying funds.

A feature of the Staffguard Plan policies was that they included a GAR of a certain percentage depending on the employee’s age (e.g. 10.016% at age 65). There is nothing to suggest that the GAR was a feature of any of the trusts or rules of any of the pension schemes with which this case is concerned.

In 1984 Mr Wise was the managing director of a company called Gould SEL Computer Systems Ltd (“Gould SEL”), which was part of a group of companies known as Gould Electronics. On 25 June 1984 Mr Wise executed on behalf of Gould SEL a declaration of trust which established the Gould CSD Pension Scheme (“the Gould Scheme”) with effect from 1 July 1984. Gould SEL was named as employer, trustee and administrator of the Gould Scheme. CLIC provided insurance-backed policies for the members of the Gould Scheme, and in particular Staffguard Plan policies.

Following the establishment of the Gould Scheme, CLIC issued three Staffguard Plan policies to Gould SEL for the benefit of Mr Wise (Plan Nos. 1776473, 1784059 and 1798503 dated 1 July 1984, 1 December 1984 and 1 February 1985 respectively) (“the CLIC Policies”), pursuant to which Gould SEL and Mr Wise paid contributions in the form of premiums to CLIC between July 1984 and March 1986.

It should be noted that Mr Wise also took out, or otherwise acquired the benefit of, three other policies with CLIC, one of which was a personal pension plan dated 1 July 1988 although backdated to 6 April 1987. These policies are not relevant for present purposes, however.

According to Mr Wise, at the end of 1984 there was a restructuring of the Gould Electronics group which led to his employment being transferred to Gould Electronics Ltd and Gould SEL subsequently being liquidated. Assuming this is correct, it does not appear to matter for present purposes.

In March or April 1986 Mr Wise ceased to be employed by Gould Electronics and began working for Convex Computer Ltd (“Convex”). Whilst no copy of the declaration of trust has been located, it appears that Convex established a pension scheme called the Convex Computer Ltd Pension Scheme (“the Old Convex Scheme”) by a declaration of trust dated 28 October 1986. It also appears that the trustees of the Old Convex Scheme were Mr Sequeira and John Morrison (“the Convex Trustees”).

Mr Wise became a member of the Old Convex Scheme on 1 November 1986. By a deed of assignment dated 7 May 1987 Gould as trustee of the Gould Scheme assigned the benefit of the CLIC Policies to Convex as trustee of the Old Convex Scheme to hold upon the trusts of the latter. (Technically, as I have said, it appears that the trustees were the Convex Trustees rather than Convex itself; but nothing turns on this.)

It appears from a document headed “Total contribution and allocation of units for A. Wise” which was enclosed with a letter dated 6 December 1991 (“the Schedule”) that Convex paid contributions in the form of premiums to CLIC from November 1986 to March 1989. The Schedule also records that contributions were “held on deposit 1^st April 1989 to 28^th February 1990”, but does not indicate by whom they were held on deposit or why.

According to Mr Wise, in February 1989 he ceased to be employed by Convex and started to work for Convex’s parent company Convex Inc in the USA. It appears from the documents, however, that to begin with Mr Wise was seconded to Convex Inc and that he only became employed by it some time in March or early April 1990.

It is common ground that at some point (i) a dispute arose as to the fees being charged by CLIC and (ii) Convex and/or the Convex Trustees appointed Hogg Robinson Financial Services Ltd (or possibly Hogg Robinson (Benefit Consultants) Ltd) (“Hogg Robinson”) as pension advisor.

Mr Sequeira explains what happened in his witness statement as follows:

“Mr Wise has raised his concerns with me concerning his pension over the last two years.

a.

Initially he was concerned because he had discovered that his pension had been transferred to a new pooled occupational pension scheme that Convex had set up in March 1990. Mr Wise had understood his pension had remained an individual arrangement.

b.

I explained to him that this change had been made after we had appointed Hogg Robinson (HR) in 1989 as pension scheme advisors. The appointment of HR was initiated because at the time an employee had had recently joined Convex from Gould-SEL said concerns had emerged there regarding Confederation Life’s fees. As I had agreed fees with Confederation Life for Convex employees that were significantly different I asked HR to check that the fees charged in the Convex Pension arrangement were in accordance to what I had agreed with Confederation Life and to advise me on the fund’s performance. Hogg Robinson negotiated with Confederation Life and it was recommended we start a pooled scheme as this would have lower upfront fees. This change had been effected at a meeting with Confederation Life’s executives attended by some Convex executives and Hogg Robinson in early 1990.”

Notwithstanding the caveats I have expressed above, I accept this evidence since it is consistent with the surviving documents, and in particular a memorandum from Mr Morrison to Mr Wise on Convex notepaper dated 1 March 1990. This states as follows:

“For some time the Company has been dissatisfied with the administration arrangement for the Convex Computer Limited Pension Scheme (‘the Old Scheme’). It has been decided to establish a new pension scheme, the Convex Computer Pension Scheme (‘the New Scheme’) with effect from 1^st March 1990, and as a consequence the Old Scheme will be terminated as from 28^th February 1990.

From 1^st March 1990 you will be a member of the New Scheme.

1.

Details of your investment in your pension scheme will be dealt with by two statements:

a)

your interest in the Old Scheme re: investment units and/or cash, which is attached to this memo.

b)

your opening investment in the New Scheme, which will be sent to you once the investment units have been secured.

2.

The New Scheme is a money purchase scheme which attracts considerably lower fees than the Old Scheme, and in addition, the Trustees have appointed an independent consultant, Hogg Robinson, to administer the scheme and look after our interests.

…

You are asked to complete the attached transfer request …”

The “attached transfer request” which Mr Wise was asked to complete included the following statements:

“I hereby request the Trustees of the Old Scheme to transfer to the New Scheme the accumulated fund to which I and my dependents were entitled or contingently entitled immediately prior to 1^st March 1990 …

I acknowledge that following such transfer I and my dependents will no longer be entitled to any benefit from the Old Scheme.”

According to Mr Wise, he received the memorandum (after some delay as it was sent to his home in the UK), but did not sign the transfer request. Since no signed copy of the transfer request has been produced, I will assume he is right about this, although there is some documentary evidence which suggests to the contrary. I shall return to this point below.

Although no declaration of trust in respect of the New Convex Scheme has been located, it seems clear that such a declaration of trust was executed with effect from 1 March 1990.

Equally, it seems clear that someone arranged for the CLIC Policies to be terminated with effect from 28 February 1990 and for the proceeds to be invested in units in CLIC’s pooled managed fund with effect from 1 March 1990. Thus the Schedule sets out the “transfer value to current scheme” as at 28 February 1989, “contributions paid to current scheme from 1^st March 1990” and “total units purchased”. Furthermore, there is also in evidence a “statement of benefits” for Mr Wise under the New Convex Scheme as at 15 March 1990 on Hogg Robinson notepaper which sets out Mr Wise’s accrued benefits under the New Convex Scheme in terms of the value of the managed fund units held in his name as at that date.

Sun Life contends that, as a result of the termination of the CLIC Policies, their terms and conditions, including the GAR, no longer applied. Instead, Mr Wise became subject to the terms and conditions of CLIC’s pooled managed fund under the New Convex Scheme. Sun Life further contends that the CLIC Policies must have been terminated on the instructions of one or more of (i) the Convex Trustees, (ii) Convex as the employer and (iii) Hogg Robinson, and not on the instructions of CLIC.

Mr Wise disputes both these contentions. So far as the first is concerned, he points out that there is no surviving contemporaneous document which explains that the GAR is being terminated, let alone how or by whom. As to the second, he blames CLIC for his loss of the GAR.

Thus the principal issue between the parties on the appeal is the factual question of who was responsible for Mr Wise’s loss of the GAR. I shall consider this issue below.

On 31 March 1991 Mr Wise withdrew from the New Convex Scheme.

On 31 December 1994 Sun Life acquired the assets of CLIC from a liquidator, including its pooled managed fund business, Confederation Pooled Pensions Ltd (“CPP”).

In 1997 Convex was acquired by Hewlett-Packard. Following this, the New Convex Scheme was wound up and Mr Wise’s accrued benefits were transferred into the Hewlett-Packard Scheme.

On 7 December 2001 Sun Life sold CPP to Credit Suisse. It appears that one of the reasons for the relative paucity of documentation is that, by the time it was requested by the parties, Credit Suisse no longer retained any documents. Sun Life does not contend that the sale of CPP absolves it of responsibility for any maladministration on the part of CLIC.

In 2013 Mr Wise made inquiries about the GAR to (inter alia) Sun Life. Sun Life advised him by letter dated 13 September 2013 that the GAR available under the CLIC Policies ceased when those policies were terminated. A more detailed explanation was provided by a letter dated 1 October 2013 which (inter alia) suggested that Mr Wise make enquiries with the trustees of the Convex Schemes.

On 18 November 2013 Mr Wise wrote a letter of complaint to Sun Life. This was answered by a letter dated 3 December 2013 from Sun Life’s complaints adjudicator. Following extensive correspondence, a further adjudication dated 19 August 2014 was provided.

Mr Wise then made written complaints to the Financial Ombudsman’s Service and the Pensions Ombudsman. The Financial Ombudsman Service eventually rejected Mr Wise’s complaint on the ground of lack of jurisdiction, whilst the Ombudsman rejected his complaint on the merits in the determination under appeal.

The jurisdiction of the Pensions Ombudsman is defined by section 146 of the Pension Schemes Act 1993 (“the 1993 Act”) as amended. So far as relevant, this provides:

“(1)

The Pensions Ombudsman may investigate and determine the following matters —

(a)

a complaint made to him by or on behalf of an actual or potential beneficiary of an occupational or personal pension scheme who alleges that he has sustained injustice in consequence of maladministration in connection with any act or omission of a person responsible for the management of the scheme,

...

(c)

any dispute of fact or law in relation to an occupational or personal pension scheme between—

(i)

a person responsible for the management of the scheme, and

(ii)

an actual or potential beneficiary,

…

(3)

For the purposes of this Part, the following persons (subject to subsection (4)) are responsible for the management of an occupational pension scheme or a personal pension scheme

(a)

the trustees or managers, and

(b)

the employer;

but, in relation to a person falling within one of those paragraphs, references in this Part to another person responsible for the management of the same scheme are to a person falling within the other paragraph.

(4)

Regulations may provide that, subject to any prescribed modifications or exceptions, this Part shall apply in the case of an occupational or personal pension scheme in relation to any prescribed person or body of persons where the person or body—

(a)

is not a trustee or manager or employer, but

(b)

is concerned with the financing or administration of, or the provision of benefits under, the scheme,

as if for the purposes of this Part he were a person responsible for the management of the scheme.

(4A) For the purposes of subsection (4) a person or body of persons is concerned with the administration of an occupational or personal pension scheme where the person or body is responsible for carrying out an act of administration concerned with the scheme.

...”

There is no statutory definition of “maladministration”. It is generally accepted, however, that this covers the so-called “Crossman catalogue”, referring to the then Leader of the House of Commons’ description of the concept as including bias, neglect, inattention, delay, incompetence, ineptitude, perversity, turpitude and arbitrariness.

Regulation 2 of the Personal and Occupational Pension Schemes (Pensions Ombudsman) Regulations 1996 (“the 1996 Regulations”) provides an additional jurisdiction to investigate administrators in the following terms:

“(1)

The Pensions Ombudsman may investigate and determine a complaint concerning the administration of a personal or an occupational pension scheme made to him by or in respect of an actual or potential beneficiary of the scheme who alleges that he has sustained injustice in consequence of maladministration in connection with an act or omission of an administrator of the scheme.

(2)

Where the Pensions Ombudsman commences an investigation under paragraph (1) above, the provisions of Part X of the 1993 Act (the Pensions Ombudsman) shall apply in relation to the administrator as they would apply in relation to a person responsible for the management of the scheme.”

Regulation 1(2) of the 1996 Regulations defines “administrator” as follows:

“(a)

in relation to an occupational pension scheme, means any person concerned with the administration of the scheme, other than a person responsible for the management of the scheme (as defined in section 146(3) of the 1993 Act for the purposes of Part X of that Act), and

(b)

in relation to a personal pension scheme, means any person concerned with the administration of the scheme, other than—

(i)

a person responsible for the management of the scheme (as defined in section 146(3A) of that Act for the purposes of that Part), or

(ii)

a person who is or has been the employer of any member who is or has been an employed earner ...”

The Ombudsman’s determination dated 29 July 2015 endorsed and amplified the reasons previously given for rejecting Mr Wise’s complaints by Christopher Rattigan, a Senior Investigator, in a letter dated 18 May 2015. So far as Mr Wise’s complaint about the loss of the GAR is concerned, the reasons for the determination can be summarised as follows:

As I have explained, the issue between the parties on the appeal is essentially one of primary fact, namely as to the responsibility for Mr Wise’s loss of the GAR. This has two aspects to it: first, how was it that Mr Wise came to lose the GAR; and secondly, which person or persons were responsible for that happening?

Before addressing those questions, I should mention one preliminary matter. It is Mr Wise’s case and evidence that he was deprived of the GAR without his knowledge, let alone consent. As noted above, he says that he did not even consent to the termination of the Old Convex Scheme and the transfer of the value of his accrued benefits under that scheme to the New Convex Scheme. As I have said, I assume he is correct about that. It is worth noting, however, that, even if Mr Wise did consent to the termination of the Old Convex Scheme and the transfer of the value of his accrued benefits under that scheme to the New Convex Scheme, there is no contemporaneous documentary evidence that he was warned that this would involve loss of the GAR. This is not mentioned in the memorandum dated 1 March 1990, for example. In any event, Sun Life has not challenged Mr Wise’s assertion that he did not know of, or consent to, the removal of the GAR.

So far as the question of how it was that Mr Wise came to lose the GAR is concerned, as I have explained, it is Sun Life’s case that this happened as a result of the termination of the CLIC Policies when the Old Convex Scheme was terminated. Although Mr Wise does not accept this, he has no alternative explanation. In my judgment, the explanation given by Sun Life is the only one which is consistent with the available evidence, and in particular the contemporaneous documents.

Turning to the question of which person or persons were responsible for this happening, there was some debate at the hearing as to the role of Hogg Robinson. It seems clear that Hogg Robinson was appointed as administrator of the New Convex Scheme. What is less clear is the extent of Hogg Robinson’s involvement with the Old Convex Scheme prior to 1 March 1990. As I have indicated, it is common ground that Hogg Robinson acted as pension advisor to Convex and/or the Convex Trustees at that point. Counsel for Sun Life suggested that Hogg Robinson had also been appointed as the administrator of the Old Convex Scheme, and that this explained the contributions being held on deposit during the period from 1 April 1989 to 28 February 1990, but counsel for Mr Wise disputed this. In my view, it is not necessary for me to try and resolve this dispute, at least for the purposes of the appeal.

Whether Hogg Robinson acted purely as an advisor or also acted as administrator of the Old Convex Scheme, in my judgment Sun Life is correct that the decision to terminate the CLIC Policies must have been taken by Convex and/or the Convex Trustees, acting on advice from Hogg Robinson.

Counsel for Mr Wise relied on the evidence of Mr Sequeira as showing that CLIC was responsible for the loss of the GAR, but even taken entirely at face value Mr Sequeira’s evidence does not bear the weight counsel sought to place upon it. Thus in the key passage Mr Sequeira states:

“c.

Mr Wise asked me what effect this change had had on his [GAR]. I told him that I do not recollect knowing anything about this benefit that he says he had and that it had not been discussed at our meeting. Mr Wise says that the memoranda sent out informing the staff of this change and the attached form asking them to agree to it did not mention any changes to benefits. This was because insofar as we understood there had been no such changes.

d.

If Mr Wise ‘lost this GAR’ as a result of the change we made then I’m surprised it was not brought up by Confederation Life and/or Hogg Robinson as in my view they should have warned us this would happen and present us solutions to preserve this feature.”

The fact that, 26 years after the event, Mr Sequeira does not remember any discussion about the GAR does not establish that there was no discussion at the time. In any event, even if there was no consideration of the GAR by Convex or the Convex Trustees, that could be explained by a failure on the part of Hogg Robinson properly to advise them about the matter. As for Mr Sequeira’s suggestion that there was a failure by CLIC properly to advise the Convex Trustees, that suggestion is inconsistent with his own evidence that Convex and the Convex Trustees were in dispute with CLIC and therefore brought in Hogg Robinson to advise them.

It has not been shown that CLIC had the power unilaterally to terminate the CLIC Policies, and it is inherently improbable that it did have. Nor has it been shown that CLIC would have had any rational reason unilaterally to terminate the CLIC Policies, and it is inherently improbable that it did have. Nor is it likely that CLIC advised Convex or the Convex Trustees to do so. On the contrary, it is overwhelmingly probable that the person(s) who terminated the CLIC Policies were Convex and/or the Convex Trustees, acting on the advice of Hogg Robinson.

Not only is this overwhelmingly probable, but in addition this conclusion is supported by the evidence of Mrs Lodge, who was a representative of CLIC at the time. She says:

“21.

Mr Wise also told me that he was concerned that Convex Trustees (a Mr Sequeira or a Mr Morrison) had taken decisions regarding his Pension Fund without his agreement. He said that this had definitely led to the loss of his [GAR].

22.

If this was so, I was appalled as I believe it should never have happened. The whole point of these individual policies was to prevent such changes happening without the members’ agreement. The Trustees of the scheme should only have had the role of oversight of the scheme, not that of making these individual decisions.

…

24.

In my personal opinion, if the Trustees had made decisions on behalf of Mr Wise and without his knowledge and consent, then they may possibly have failed in their duty of care to him. … ”

(I should make it clear that Mrs Lodge’s understanding of the legal position in paragraph 22 is not entirely accurate, but that does not matter for present purposes.)

Accordingly, I conclude that the person or persons responsible for Mr Wise’s loss of the GAR were Convex and/or the Convex Trustees, acting on advice from Hogg Robinson. CLIC was not responsible. Thus, even if the loss of the GAR involved maladministration, it was not maladministration on the part of CLIC. It follows that Mr Wise’s appeal must be dismissed.

Although it is not necessary to my decision, I would add that I agree with the Ombudsman and Mr Rattigan that, viewed without the benefit of hindsight, the decision to adopt a course which involved loss of the GAR was a reasonable one. As Mr Sequeira explains, the change was motivated by what appear to have been very high upfront fees charged by CLIC in respect of the policies under the Old Convex Scheme. Furthermore, at that time, market annuity rates were quite high (around 14%), and had been quite high for approaching 20 years. Since then, market annuity rates have steadily declined, which means that the GAR would now be much more beneficial than it appeared then. Mr Pomery argues in his evidence that the whole point of a GAR was to remove risk, and that, viewed against a longer period of history, the annuity rates which prevailed in the 20 years preceding 1990 were anomalously high. I am not persuaded that that is how the position would have been seen at the time, however.

The question of who is a manager or administrator for the purposes of the jurisdiction of the Pensions Ombudsman has been considered in three important cases: Century Life Plc v The Pensions Ombudsman [1995] Pens LR 125, Britannic Asset Management Ltd. v The Pensions Ombudsman [2002] Pens LR 527 and R (Government Actuary’s Department) v The Pensions Ombudsman [2013] Pens LR 291. Mr Wise contends that, applying the guidance in these cases, CLIC was either a manager or an administrator of the relevant scheme (which on my findings of fact was the Old Convex Scheme) at the relevant date (which on my findings of fact was 28 February 1990, being the date as of which the Old Convex Scheme and the CLIC Policies were terminated). By its respondent’s notice Sun Life contends that CLIC was neither a manager nor an administrator of the Old Convex Scheme as at that date. Having regard to my decision on the appeal, it is not necessary for me to decide this question. Furthermore, I consider that it is not desirable for me to do so, not least because it would require me both to assume, contrary to the conclusion I have reached, that CLIC was responsible for the loss of the GAR, and to try to resolve the dispute as to Hogg Robinson’s role prior to 1 March 1990.