The High Court has left in place a Pensions Ombudsman determination directing that Margaret McDermott receive a spousal pension under a 2003 court order, after rejecting an appeal by the Ministers for Education and Skills and for Public Expenditure and Reform.
Mr Justice Max Barrett said the Ombudsman’s final determination should stand. The court did not rehear the complaint or make a fresh pension award. It considered the statutory appeal from the Ombudsman’s second determination, which had directed payment backdated to the day after Ms McDermott’s former husband died.
The couple divorced in 2003. In an order made on 4 December that year, the High Court provided that if her former husband died first while a widower, Ms McDermott would be treated as his spouse for pension-scheme entitlements. He died on 17 September 2009, when he was a widower. Her request for the pension was declined, and she complained to the Ombudsman.
The Ombudsman first ruled in her favour in 2010. The High Court remitted that determination for fresh consideration in 2011, and the Ombudsman issued a second determination in her favour on 8 October 2013. The ministers then appealed, arguing that the Ombudsman exceeded his powers, including by directing a pension contrary to the Family Law (Divorce) Act 1996 and by finding maladministration without sufficient evidence.
Mr Justice Barrett said the High Court’s role on this type of appeal was limited, particularly on questions of fact or mixed fact and law. He also found that the Ombudsman’s procedures were fair, that the reasons given were adequate, and that a third investigation was not warranted. The ministers had not raised procedural objections before the appeal, the judge said, and were acquiesced in and/or estopped from raising them at that stage.
The judge said the Ombudsman may have erred in finding that the introduction of the public service spouses’ scheme through the HETAC Pensions Scheme involved maladministration. But he concluded that this possible error did not invalidate the determination as a whole. He also rejected the ministers’ challenges to the effect of the 2003 order, noting the constraints on the court’s role in this appeal.
The judgment stressed that the case was unusual because it involved an existing High Court order in Ms McDermott’s favour and the particular form of appeal brought by the ministers. It did not suggest that former spouses would generally qualify for survivor pensions.