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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Britannic Asset Management Ltd. & Ors v Pensions Ombudsman [2002] EWCA Civ 1405 (14 October 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1405.html Cite as: [2002] All ER (D) 183, [2002] 4 All ER 860, [2002] EWCA Civ 1405

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
(ADMINISTRATIVE COURT)
(Lightman J)

		Royal Courts of Justice Strand, London, WC2A 2LL
		14 October 2002

Lord Justice Chadwick :

1. This is the judgment of the Court on an appeal from an order made on 21 March 2002 by Mr Justice Lightman in proceedings brought by Britannic Asset Management Limited, Britannic Unit Linked Assurance Limited and Britannic Investment Managers Limited (together “the Britannic companies”) for judicial review of a decision of the Pensions Ombudsman, conveyed in a letter dated 8 August 2001, that he had jurisdiction to investigate a complaint of maladministration made against them. The judge held that the Pensions Ombudsman did not have the jurisdiction which he claimed. The Pensions Ombudsman appeals with the permission of this Court (Lord Justice Sedley) granted on 30 April 2002.
2. Britannic Unit Linked Assurance Limited (“BULA”) carries on unit linked long term insurance business. That business includes business formerly carried on by Britannia Life Limited (“Britannia”). Britannic Investment Managers Limited (“BIM”) is an investment management company whose business includes the management of funds held by BULA in connection with its insurance business. Britannic Asset Management Limited (“BAM”) is the parent of BIM. In the course of its business Britannia issued to the trustees of the Cheney Pension Scheme two unit linked long term insurance policies, described as Pensions Fund Managed Policies, of which the first (dated 28 March 1994) is material in the context of these proceedings. Under the terms of that policy the trustees of the pensions scheme were entitled, at any time, to surrender the policy in whole or in part and to receive payment of the surrender value. In the period between April and October 2000 an amount of £2,980,165 was paid to the then trustees, or at their direction, by BIM on behalf of BULA following requests by the trustees to surrender the policy in part. It is said that the requests were made in breach of trust and that those monies have been misapplied by those to whom, or at whose request, they were paid.
3. The issue before the judge – and the issue on this appeal – is whether, in paying those monies in response to requests made under the policy, the Britannic companies (or any of them) were acting as “administrators” of the pensions scheme for the purposes of regulation 2(1) of the Personal and Occupational Pension Schemes (Pensions Ombudsman) Regulations 1996 (SI 1996/2475). It is common ground that, unless they were “concerned with the administration of the scheme”, the Pensions Ombudsman has no jurisdiction to investigate a complaint against them.

The legislative framework

4. The office of Pensions Ombudsman was established in 1990 by an amendment to the Social Security and Pensions Act 1975 made by section 12(1) of, and Schedule 3 to, the Social Security Act 1990. The relevant statutory provisions are now contained in Part X of the Pensions Schemes Act 1993. Section 145(1) of that Act provides that:

“For the purpose of conducting investigations in accordance with this Part . . . there shall be a commissioner to be known as the Pensions Ombudsman.”

Section 146 defines the functions of the Pensions Ombudsman. Section 146(1) is in these terms, so far as material:

“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, . . .”

Section 146(3) identifies the persons “responsible for the management of the scheme”:

“(3) For the purposes of this Part, the following persons (subject to subsection (4)) are responsible for the management of an occupational pension scheme . . . –

(a) the trustees or managers, and

(b) the employer; . . .”

Section 146(4) is in these terms:

“(4) Regulations may provide that, subject to any prescribed modifications or exceptions, this Part shall apply in the case of an occupational . . . 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.”

5. The Personal and Occupational Pension Schemes (Pensions Ombudsman) Regulations 1996, made under section 146(4) of the 1993 Act, provide, at regulation 2(1):

“The Pensions Ombudsman may investigate and determine a complaint concerning the administration of . . . 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.”

In that context, and in relation to an occupational pension scheme, “administrator” is defined by regulation 1(2) of the 1996 Regulations. It 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), . . .”

6. Two conclusions can be drawn from an examination of those provisions. First, an “administrator” is someone “concerned with the administration of the scheme” other than a person (trustee, manager or employer) “responsible for the management of the scheme”. Second, a person who is concerned only with “the financing of”, or only with “the provision of benefits under”, a scheme is not an “administrator” of that scheme. It is significant that, although empowered by section 146(4) of the 1993 Act to make regulations applying Part X of the Act to any person “concerned with the financing or administration of, or the provision of benefits under” a scheme, the Secretary of State, when making the 1996 regulations in pursuance of that power, chose to confine those brought within the scope of Part X of the 1993 Act to persons concerned with the administration of a scheme. He did not, as he could have done, extend the scope of Part X to include persons concerned with the financing of a scheme, or persons concerned with the provision of benefits under a scheme.

The Scheme

7. The Cheney Pension Scheme (originally known as the C W Cheney & Son Limited No.2 Retirement and Death Benefits Plan) (“the Scheme”) was established by an interim trust deed dated 31 October 1973 and a definitive trust deed of 19 December 1977. The purpose of the scheme was to provide benefits for certain employees of the principal employer and other participating employers. Clause 6 of the definitive trust deed gave power to the trustees to invest or apply the monies of the fund subject to the trusts of that deed in any manner authorised by law for the investment of trust monies. In particular, the trustees were authorised to effect with any insurance company registered in the United Kingdom and to which Part II of the Insurance Companies Act 1974 applied “annuity contracts or policies providing pensions or other benefits whether immediate or future and whether contingent or otherwise for the purposes of the Scheme”.

The Policy

8. The policy was issued on 28 March 1994. The parties were Britannia (there described as “the Company”) and the trustees of the Scheme. It recited that the trustees were desirous of providing retirement benefits for members of the Scheme; that the trustees were empowered to invest some or all of the assets of the Scheme for the purpose of providing those benefits and had requested the Company “to effect a policy accepting such investment”; and that the Company had agreed “to accept such investment” on the terms and conditions set out in the schedule (“Schedule 1”) to the policy. Clause 1 of the policy provided that :

“The Trustees shall be entitled to receive the sums stated to be payable in Schedule 1 upon providing satisfactory evidence to the Company, in such form as the Company may require and as to the sufficiency of which the Company will be the sole arbiter, of the following:-

(i) the occurrence of the event or events on which the proceeds are stated in Schedule 1 to be payable; and

(ii) the validity of title of the person or persons claiming the proceeds payable under this policy.”

9. Clause 2 provided that in the event that the Scheme ceased to qualify for treatment as an approved exempt scheme under Chapter I of Part XIV of the Income and Corporation Taxes Act 1988 the Company could decline to accept further sums and return any monies already paid. The purpose of that provision is not in doubt. An insurance company enjoyed exemption from corporation tax in respect of income from, and chargeable gains in respect of, investments and deposits of so much of its life assurance fund and separate annuity fund as was referable to pension business – see section 438(1) of the 1988 Act. Premium income is referable to “pension business” if it is payable under a contract (including a contract of insurance) “entered into for the purposes of, and made with the persons having the management of, an exempt approved scheme as defined in Chapter I of Part XIV, being a contract so framed that the liabilities undertaken by the insurance company under the contract correspond with liabilities against which the contract is intended to secure the scheme” – see section 431(4)(b) of the 1988 Act. An insurance company which seeks to maintain a fund or funds referable to pension business – and to enjoy exemption from corporation tax in respect of income from, and chargeable gains in respect of, investments in that fund – will be concerned to ensure that premiums allocated to that fund are paid under a policy which satisfies the requirements in section 431(4).
10. The provision in clause 2 of the policy reflects the contractual nature of the relationship between the trustees and the insurance company and the distinction between the assets of the Scheme and the assets of the insurance company’s Pensions Managed Fund. The trustees pay, out of assets subject to the scheme, the premium (described, perhaps confusingly, as “the Investment”) which the company requires as the price of providing benefits under the policy. In return for those payments, the policy is issued and becomes an asset of the scheme. That is made clear by condition 2 of Schedule 1 to the policy:

“ 2. BENEFITS

The Policy is issued as an asset of the Scheme and the Trustees shall hold the same and all sums payable thereunder in conformity with the Deed or Declaration of Trust establishing the Scheme. Except in so far as the Trustees determine to cancel all or part of this contract to re-invest the assets, in another investment, in accordance with the provisions of the Scheme, the Policy proceeds shall be applied in accordance with and payable in such form as may be determined, by the Rules of the Scheme, to provide relevant benefits for the members and their dependants.”

11. The premium (or “the Investment” as the policy describes it) is allocated, when received by the insurance company, to the purchase of units in its Pensions Managed Fund. That is made clear by condition 5 in Schedule 1 to the policy:

“5. Application of investment

On payment, the Investment, subject to Condition 2 and Condition 6.1, shall be allocated to purchase Units in the Fund.”

And see the definitions of “Fund” and “Units” in condition 1 of that schedule.

12. The Pensions Managed Fund is an asset of the insurance company. It is not an asset of the Scheme; and is not subject to any trust to provide benefits in accordance with the scheme. That is made clear by the provisions in conditions 6.1, 7.1 and 7.2 of Schedule 1 to the policy:

“6. UNITS PURCHASED

6.1 After deduction of any initial charge . . . the Investment shall be applied in purchasing Units in accordance with the Company’s allocation formula for the time being. . . .

7. UNIT FUNDS

7.1 The Company shall have the power to invest sums credited to the Fund as it shall in its own absolute discretion think fit. . . .

7.2 The allocation of Units under the Policy is notional only and is solely for the purpose of calculating benefits under policies issued by the Company. The persons entitled to such benefits have no legal or beneficial interest in the Units.”

13. Those provisions are to be read in conjunction with the further provisions in condition 2 of Schedule 1:

“Where in accordance with the previous paragraph a benefit is to be provided by the proceeds of this Policy then

(a) if the benefit is payable in lump sum form, under the Scheme, the benefit under this Policy will be payable as a lump sum.

(b) if the benefit is payable as a pension under the Scheme the benefit under this Policy will be payable as an annuity purchased from the Company on its then current terms (or alternatively from another Authorised Insurer).

The sum required to provide the benefit under (a) above or the purchase price of the annuity under (b) above will be realised by cancelling Units under this Policy”

The price at which units are notionally allocated (Offer Price) or notionally cancelled (Bid Price) is determined by the formula in condition 7.4. But it is important to appreciate that the allocation and cancellation of units is a notional exercise only. It determines the overall value of the benefits which the insurance company has contracted to provide under the policy; but it does not have the effect of appropriating any of the assets in the Pensions Managed Fund, or any units in the fund, to the policy, the trustees or the Scheme.

14. Condition 8 of Schedule 1 provides the link between the liabilities undertaken by the insurance company under the policy and the liabilities of the trustees under the Scheme which is required by section 431(4)(b) of the Income and Corporation Taxes Act 1988, to which we have already referred:

“8 CORRESPONDENCE OF BENEFITS

The benefits payable under this Policy shall correspond with the liabilities of the Trustees under the Scheme insofar as these liabilities are or are intended to be secured, by this Policy. . . .”

But it must be kept in mind that the Scheme is a final salary scheme, under which benefits are determined by applying a multiplier to Final Pensionable Salary; it is not a money purchase or unit linked scheme. There was, subsequently, a change to a money purchase scheme – and the issue of a new policy – but that scheme and that policy are not in question in these proceedings.

15. The position - which we have sought to explain by reference to the terms and conditions of the policy - is conveniently summarised by Mr Leslie McIntosh, Chief Executive of BAM and BIM, in paragraph 7 of his witness statement dated 29 August 2001:

“The products offered by BULA, and formerly by Britannia Life Ltd, include various “Pooled Pension Fund Policies”. These are straightforward unit-linked long term policies, in which the policyholder’s investment is used to purchase notional units in BULA’s “Pooled Pension Fund” and/or one or more of a limited range of BULA’s other funds. The Pooled Pension Fund itself is a “fund of funds” which consists of unit holdings in those other funds. Policies of this type are available to the trustees of any occupational pension scheme, as well as to individuals. The format is that the value of the policy from time to time, and therefore the total amount payable under it, depends on the number and value of the units allocated to it, which in turn depends upon the amount contributed, the amount deducted by way of charges, and the performance of the underlying funds. The amount payable under the policy therefore is not linked to the trustees’ liabilities under the pension scheme: it is up to the trustees to ensure (with the assistance of their scheme’s actuary) that the value of their policies (together with any other assets which they hold) is sufficient to meet those liabilities.”

16. Condition 9 of the policy gives the trustees the right to surrender the policy in whole or in part:

“9. SURRENDER

9.1 The Trustees shall have the right exercisable at any time in writing to surrender the Policy and partly or wholly receive part or all of the surrender value of the Policy as calculated under Condition 10.

. . . ”

Condition 10 is in these terms:

“10. SURRENDER VALUE

10.1 The surrender value of this Policy is equal to the Bid Price of the Units under the Policy less such deduction as the company may determine to cover:-

(i) the expenses of realising assets,

(ii) any current or future liability for a levy under the Policy Holders Protection Act 1975.

. . .”

We were told that it was the practice of the trustees of the Scheme, when there were benefits to pay or annuities to purchase, to request a partial surrender of the policy rather than to invoke the provisions for payment under the policy contained in condition 2 of Schedule 1. The payments in relation to which complaint is made in the present case were made following requests to effect partial surrender.

The complaint

17. Particulars of the complaint which the Pensions Ombudsman seeks to investigate are set out in an annex to a letter dated 12 April 2001 from Messrs Taylor Joynson Garrett, the complainant’s solicitors. Paragraphs 1.9, 1.10 and 1.11 of the first section of that annex (Historical and Factual Background) are in these terms:

“1.9 The Scheme’s assets have been managed and invested by Britannia Life, now known as Britannic Asset Management and/or Britannic Investment Management Limited and/or Britannic Unit Linked Assurance Limited (collectively known as “Britannic” for the purposes of this complaint) from December 1992 to date. Originally, all of the Scheme’s funds were invested in a managed fund policy, known as Pooled Pension Fund - PM 701944 (“the Account”). The Account is the policy under which the relevant funds were managed which form the basis of this complaint. In May 1997, following the switch to the money purchase basis, the Scheme invested in a second (money purchase) policy with Britannic. As at 28 April 2000 the credit balance in the Account was £2,994,411.77 (representing 134,278.55 units).

1.10 From April 2000, Britannic made payments out of the Account (acting on the instructions of the trustees, or their agents acting by the Power of Attorney) totalling £2,918,915. [There follow particulars of the eight payments which make up that sum, made on dates from 28 April to 10 October 2000. The payments are obviously not payments to members or pensioners. Two were to the client account of a firm of solicitors (the then trustees). The other payments could, perhaps, have been taken to be by way of re-investment.]

1.11 As a result of the transactions set out in paragraph 1.10 above, most of the Scheme assets are now missing and consequentially the Scheme’s liabilities are significantly greater than the Scheme’s assets. In December 2000 ITS [Independent Trustee Services Limited, which had been appointed as trustee by the Occupational Pensions Regulatory Authority on 20 October 2000] made application to the Pensions Compensation Board (“PCB”) to fund pensions in payment. On 25 January 2001, the PCB agreed to meet pension instalments for the next six months after concluding that there were reasonable grounds for believing that the assets of the Scheme have been reduced as a result of offences involving dishonesty. ITS is currently taking action to recover the missing funds including serving demands on companies and taking proceedings against individuals who may be in possession of Scheme assets. ITS is not currently instituting proceedings against Britannic.”

18. Those paragraphs evidence some confusion in the mind of the writer as to the relationship between the Scheme (and the scheme assets), the Policy and the Pensions Managed Fund (or Pooled Pension Fund, or “Account”, as it is described in paragraph 1.9). If it is intended to suggest, by the statement in paragraph 1.10 that “Britannic made payments out of the Account”, that the Britannic companies held the Pensions Managed Fund (“the Account”) or any part of it upon the trusts of the Scheme, the writer has misunderstood the true position.
19. Paragraph 2.1, in the second section of the annex to the letter of 12 April 2001, sets out the complaint:

“The complaint against Britannic is effectively threefold:

(i) the procedures that Britannic had in place concerning the security of Scheme assets, particularly the divestment of Scheme assets, were faulty and inadequate; and/or

(ii) it failed to comply with their own procedures on divestments; and/or

(iii) it acted with cavalier disregard for the security of the Scheme assets contrary to its fiduciary obligations in respect of the Scheme beneficiaries and was negligent in processing the divestments set out in paragraph 1.10.”

Again, that formulation is open to the criticism that the writer has failed to understand that the obligations of BULA, as successor to the insurer who had issued the policy, were contractual not fiduciary.

The decision letter

20. The Pensions Ombudsman treated the complaint as an allegation that the Britannic companies were knowingly party to a breach of trust. The decision letter of 8 August 2001 contains the following paragraphs:

“The crux of Mr Smith’s complaint (as I understand it) is that Britannic group was an accessory to a breach of trust in making divestments under the Scheme’s policy; it failed to act in accordance with its own procedures in this regard; and the procedures in place are faulty.

Furthermore, he alleges that the Britannic group as ‘fund manager’ failed to have regard to the Scheme’s statement of investment principles in so far as they relate to dis-investment of the assets.

The question of jurisdiction overlaps with the merits of the complaint. Until the complaint is investigated it is not clear which companies are responsible for the acts or omissions complained of; nor is it possible to establish the extent the Britannic group were involved with the statement of investment principles.

However in my view the implementation by the Britannic group of a trustee’s instruction to dis-invest assets is an act of administration concerned with the Scheme.”

It is on the basis of that final paragraph – “the implementation by the Britannic group of a trustee’s instruction to dis-invest assets is an act of administration concerned with the Scheme” – that the Pensions Ombudsman claims jurisdiction to investigate the complaint.

“Concerned with the administration of the scheme”

21. The Pensions Ombudsman appears to have taken the view that a person who undertakes “an act of administration concerned with the Scheme” is a person “concerned with the administration of the Scheme”. But that view ignores the important distinction between doing an administrative act in connection with a pension scheme and being concerned with its administration. The point was made by the Court of Appeal in Northern Ireland, in Ewing v Arthur Cox [2000] PBLR (7). The question in that case was whether a solicitor to the trustees of a pension scheme, who had written a letter to a beneficiary demanding repayment of benefits said to have been overpaid, was a person concerned with the administration of the scheme. At paragraph 16 of its judgment, the Court said this:

“The work done by a solicitor may vary considerably from case to case. He may be engaged to perform tasks which are connected with the running of the affairs of his principal. It is, as counsel rightly submitted, a matter of fact and degree, depending on the terms of the solicitor’s retainer. Where he is simply instructed to write a letter of claim to a debtor he is acting as the agent of the principal in carrying out his instructions. We do not consider that it can be said that in these circumstances he is concerned with the administration of the affairs of the principal. Arthur Cox [the solicitors] were in that position. They were merely instructed to seek recovery of certain sums of money from the respondent, and wrote a letter of claim accordingly. In our view this cannot be said to have been “concerned with the administration of the scheme”, and the Ombudsman was in error in so holding.”

22. We have set out the provisions of the Scheme and the policy in some detail in order to show that the administration of the assets of the Pensions Managed Fund and the notional allocation or cancellation of units cannot properly be regarded as “the administration of the Scheme”. We accept, of course, that those activities, whether carried out by BULA or by BIM, are administrative in nature; and that they are administrative activities which may be described as being carried out in connection with this Scheme. But the relevant question is not whether a person carries out of administrative activities in connection with a scheme; the relevant question is whether the person is “concerned with the administration of the scheme”. An insurance company which does no more than administer its own assets and calculate, from time to time, the amount which it is liable to pay under a unit linked policy which it has issued is in much the same position as the trustees’ bankers or any other depository. It is no more concerned with the administration of the scheme than others who have contracted to make payments to the trustees or the scheme beneficiaries on request or demand. As we have said, it is significant that the ombudsman’s powers to investigate and determine under Part X of the 1993 Act have not been extended to those concerned only with the financing of, or the provision of benefits under, a scheme.
23. It is relevant, in this context, to note that the insurance company was willing to provide administration services in relation to the Scheme, at an additional fee. Condition 12 of Schedule 1 to the policy is in these terms:

“12. ADMINISTRATION SERVICES

If the Trustees require the Company to provide full administration services or partial administration services initial and annual service charges together with a membership charge will be applicable. The amount of such charges will be as notified to the Trustees, from time to time, by the Company.”

We accept that an insurance company which does provide full or partial administrative services may well be a person “concerned with the administration of the scheme”; if not a “manager” of the scheme within section 146(3) of the 1993 Act – see the decision of Mr Justice Dyson in Century Life Plc v The Pensions Ombudsman [1995] Pensions Law Reports 135. But that, on the evidence, was not this case.

24. The position in this case is explained by Mr McIntosh at paragraph 20 of his witness statement:

“BULA does offer a full or partial administration service to the trustees of occupational pension scheme, at an extra charge: see cl.12 of the Policy. The services offered under that head are actuarial services; the keeping of records of members, their salary details and other data necessary to calculate benefits; calculating benefits and contributions; preparing transfer value quotes for early leavers; corresponding with the Pension Schemes Office of the Inland Revenue where necessary; and dealing with announcements to members and the like. The trustees of the Scheme did not take up that offer, however.

(1) I understand from paragraph 1.8 of the Complaint that actuarial services to the Scheme were provided by IPS Actuarial Services Ltd.

(2) The claimants [the Britannic companies] did not have details of all the members of the Scheme, or of their salary or other details. I do not know who was responsible for keeping those records; I presume it was the trustees.

(3) The claimants had no involvement in calculating the contributions payable. BIM simply received a single sum each month (by cheque or direct transfer) which was invested in whichever policy was specified by the trustees. BIM received no schedule specifying how that lump-sum was made up. It would expect to receive such information from schemes to which it was providing full or partial administration services, but not otherwise.

(4) Similarly, the claimants were not involved in calculating benefits. When a benefit became payable, the trustees of the scheme would simply request a withdrawal from one or both of the policies. Nor did the claimants deal with transfer value quotations (and I do not know who did).

(5) I do not know who was responsible for drafting and circulating any member communications in relation to the Scheme or for dealing with matters such as correspondence with the Pension Schemes Office or the Registrar of Occupational and Personal Pension Schemes. The claimants were not copied in on any such documents.”

25. In our view, the judge was correct to hold that none of the Britannic companies were concerned with the administration of the Scheme; and that, accordingly, the Pensions Ombudsman had no jurisdiction to investigate the complaint in this case.
26. The judge went on to say this, at paragraph 26 of his judgment:

“But in any event even if any of them did [assume the role of administrator] there was no question of any maladministration by the Claimants in so acting. It is quite clear upon the true construction of the PSA 1993 and the 1996 Regulations that the PO only has jurisdiction to investigate complaints of maladministration in respect of acts or omissions of trustees, managers, employers or administrators acting as such trustees, managers, employers or administrators. The adventitious fact that there is maladministration e.g. (as in this case) by the Trustees and the Claimants were at the time administrators or acting as administrators, cannot vest jurisdiction in the PO in respect of the Claimants. It is not possible to “decouple” . . . the status of administrator of a subject of complaint (e.g. as administrator) and the maladministration causing injustice and investigate a complaint against an administrator where the only maladministration was by someone else (in this case the former Trustees).”

If all that the judge were saying, in that passage, is that the power to investigate a complaint under regulation 2(1) of the 1996 Regulations arises only where the complainant alleges that he has sustained injustice in consequence of maladministration in connection with an act or omission of an administrator of the scheme, no criticism could be made of his observations. Where the complaint is of maladministration by the trustees (or managers), the power to investigate is conferred by section 146(3) of the 1993 Act. Regulation 2(1) is not engaged; and it is irrelevant whether or not the insurance company is an administrator for the purposes of that regulation. But, if the judge is to be understood as saying that it is irrelevant whether or not the insurance company is an administrator in the present case because the only act of maladministration alleged is that of the former trustees, then there would be force in the criticism made on behalf of the Pensions Ombudsman that the judge is assuming the very matter which (if the ombudsman has jurisdiction to investigate) will not be determined until there has been an investigation. In so far as paragraph 26 of his judgment is to be taken as an alternative ground for the judge’s conclusion, we do not think that reliance can be placed upon it. But the observations in paragraph 26, do not detract from the primary ground for the judge’s conclusion - that none of the Britannic companies were concerned with the administration of the Cheney Pension Scheme.

Conclusion

27. The appeal is dismissed.
Order: Appeal dismissed with costs to be subject to detailed assessment on the standard basis if not agreed.