A Practitioner’s Guide to Correcting Mistakes in Pension Schemes

Description

Empty Foreword Preface Abbreviations Table of Statutes Table of Statutory Instruments Table of European Legislation Table of Cases Table of Pensions Ombudsman Determinations Chapter 1 – Types of mistake A taxonomy of pensions mistakes Document errors Administration errors Decision errors Practice point 1: amendments to look out for when reviewing scheme documents Practice point 2: building in protection to prevent a document error becoming operative Chapter 2 – Proving compliance When evidence of a formal record is necessary Proof of the formal record Can compliance with the formality be inferred or presumed? Presumed exercise of a power Practice point 1: establishing an inference or presumption that formalities have been satisfied Practice point 2: drafting meeting minutes Chapter 3 – Amendment Restrictions in amendment powers Statutory restrictions Other amendment powers Saving part of the amendment Amending powers of amendment Practice point: ascertaining the proper scope of the amendment power Chapter 4 – Saving part of the amendment The early cases Bestrustees plc v Stuart Subsequent cases Wedgwood Pension Plan Trustee Ltd v Salt The role of the Hastings-Bass requirement New joiners Section 67 of PA 1995 Practice point: partial invalidity clauses Chapter 5 – Construction Using general principles of construction to resolve ambiguities Using corrective construction to deal with unambiguous mistakes Practice point: including express provisions on construction in a deed of amendment Chapter 6 – Rectification Legal principles Procedure Practice point: can rectification be avoided? Chapter 7 – Setting aside for mistake The rule in Hastings-Bass Equitable rescission Mistake as to purpose Practice point: can an express provision overcome Smithson v Hamilton? Chapter 8 – Other equitable principles ‘Equity treats as done that which ought to be done’ Equitable relief against defective execution Equitable non est factum Chapter 9 – Contract and estoppel Contract Estoppel Practice point: establishing a group estoppel Chapter 10 – Mistaken overpayments Must the trustees recover overpayments? Methods of recovering overpayments Defences to the recovery of overpayments Tax consequences of overpayments Procedure for recovering overpayments Practice point: handling multiple overpayment cases Chapter 11 – Mistaken underpayments The trustees’ primary obligation Interest on arrears Limitation Forfeiture of benefits Tax consequences of underpayments Practice point: the steps the trustees will be expected to take to make good underpayments Chapter 12 – Mistakes in scheme transfers Compensation for underpayments Recovery of overpaid transfers Delays in making transfer payments Practice point: the steps the trustees will be expected to take compensate underpaid transfers Chapter 13 – Decision errors Correction by the trustees/employer Correction following a challenge by the member Practice points: avoiding decision mistakes Chapter 14 – Procedure The Pensions Ombudsman Court proceedings Practice point: how to control the cost of pensions litigation Chapter 15 – Compromises Preliminaries to a compromise Procedure for court approval The terms and effect of court approval Practice point: the terms of the compromise Chapter 16 – Negligence Structure of the claim Duty of care Breach of duty Causation Quantum Defences Limitation Practice point: key steps in negligence claims Chapter 17 – Tax Mistaken overpayments Mistaken underpayments Mistakes in transfer payments Rectification and setting aside claims Practice point: liaising with HMRC Index