The High Court dismissed the Minister for Public Expenditure and Reform’s appeal against a Pensions Ombudsman determination concerning Jim Farrell’s public service pension. The court held that the Minister was not entitled to bring the appeal under section 140 of the Pensions Act 1990. It also concluded that the Ombudsman had exceeded his jurisdiction, but said that did not make a section 140 appeal appropriate.
Mr Justice Noonan’s judgment, delivered on 19 March 2015, concerned a pension reduction imposed under the Financial Emergency Measures in the Public Interest Act 2010 (FEMPI). Mr Farrell had transferred the proceeds of a private pension fund into the National Treasury Management Agency (NTMA) pension scheme in 1996. The judgment said 62.7% of his pension entitlement arose from that transfer and 37.3% from his NTMA service.
The Ombudsman upheld Mr Farrell’s complaint in July 2013 and directed that the public service pension reduction apply only to the 37.3% funded directly by the Exchequer. The Ombudsman said the remaining 62.7% should instead be subject to the private sector pension levy. The Minister appealed, arguing, among other grounds, that the Ombudsman lacked jurisdiction and could not disapply the FEMPI legislation.
The High Court found that the Minister was not a person responsible for managing the NTMA scheme. It followed, the judge said, that the Minister was not a “party” to the complaint and could not appeal under section 140, which allows a party to an Ombudsman investigation to appeal a determination. The court also said an appeal under that section could not be used to challenge the Ombudsman’s jurisdiction; the statute made the Ombudsman’s decision on jurisdiction final.
The judge nevertheless addressed the jurisdiction issue. He said the Minister’s powers under the FEMPI Act did not make him responsible for managing the pension scheme, and that this excluded the Ombudsman’s jurisdiction over the complaint. The judge further said the FEMPI reduction applied to Mr Farrell’s whole pension and that the Ombudsman could not set aside that statutory effect or substitute his view for the Minister’s decision on an exemption.
The court did not grant the Minister’s requested order annulling the Ombudsman’s determination. It dismissed the appeal because the Minister was not entitled to pursue it under section 140.