Teachers Pension Scheme · CAS-13449-R1C9

CAS-13449-R1C9

Ombudsman’s Determination Applicant Mrs S

Scheme Teachers’ Pension Scheme (TPS)

Respondent Teachers' Pensions

Complaint Summary

Summary of the Ombudsman’s Determination and reasons

Detailed Determination Material facts

“Unless the Secretary of State determines otherwise in the particular case, and subject always to regulation E1(3)(c) and (d) (guaranteed minimum pensions for surviving spouse), an adult [surviving spouse’s] pension is not CAS-13449-R1C9 payable during or after any marriage or period of cohabitation outside marriage.”

“Anything done or having effect as if done under or for the purposes of a provision of the revoked instruments has effect, if it could have been done under or for the purposes of the corresponding provision of these Regulations, as if done under or for the purposes of that corresponding provision.”

“(1) This regulation applies on the death of a person (D) if –

(a) D was in pensionable employment after 31st March 1972, and

(b) D had adult pension qualification service of –

(i) at least 2 years, where D was in pensionable employment at any time after 5th April 1988, or

(ii) at least 5 years, where D was not in pensionable employment after 5th April 1988.

(2) …

(3) An adult pension is payable to D’s surviving adult from the day after the date of D’s death.

(4) Except as otherwise provided in these Regulations, the pension is payable for life.

(5) D falls within this paragraph if –

(a) D was not in pensionable employment after 31st December 2006, or

(b) D did not pay contributions under regulation C9 of TPR 1997 or regulation 19 (election to pay contributions by a person serving in a reserve force) in respect of a period after that date.

(6) If D falls within paragraph (5), the pension ceases to be payable if D’s surviving adult marries, forms a civil partnership, or lives with another person as if they were husband and wife or civil partners.

(7) Paragraph (6) does not apply –

2 CAS-13449-R1C9 (a) if the Secretary of State determines that paragraph (6) does not apply in the circumstances of the particular case –

(i) to prevent cessation of a pension, or

(ii) to reinstate a previously ceased pension;

(b) to so much of any pension as is payable in respect of section 9(2B) rights to a widow or widower whose entitlement arose from a death occurring before 5th December 2005 and who forms a civil partnership or lives with another person as if they were civil partners;

(c) …”

1 Regulation 70 appears to have been taken from The Teachers’ Superannuation Regulations 1976 (SI1976/1987) 3 CAS-13449-R1C9

2 Teachers’ Pensions has confirmed that it does not have a copy of the form which Mrs S completed to claim her spouse’s pension. It has provided a generic copy. 4 CAS-13449-R1C9

Summary of Mrs S’ position

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3 In 2016, Mrs S’ TPS pension was £389.09 per month. 6 CAS-13449-R1C9

Summary of Teachers’ Pensions’ position

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Mrs S’ representations

“Above all, nothing in this document should discourage the application of sheer common sense.”

Conclusions

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“When it comes to estoppel by representation or promissory estoppel, it seems to me very unlikely that a claimant would be able to satisfy the test of unconscionability unless he could also satisfy the three classic requirements. They are (a) a clear representation or promise made by the defendant upon which it is reasonably foreseeable that the claimant will act, (b) an act on the part of the claimant which was reasonably taken in reliance upon the representation or promise, and (c) after the act has been taken, the claimant being able to show that he will suffer detriment if the defendant is not held to the representation or promise. Even this formulation is relatively broad brush, and it should be emphasised that there are many qualifications or refinements which can be made to it.”

“… the principles applicable to the assertion of an estoppel by convention arising out of non-contractual dealings … are as follows:

i) It is not enough that the common assumptions upon which the estoppel is based is merely understood by the parties in the same way. It must be expressly shared between them.

ii) The expression of the common assumption by the party alleged to be estopped must be such that he may properly be said to have assumed some element of responsibility for it, in the sense of conveying to the other party an understanding that he expected the other party to rely upon it.

iii) The person alleging the estoppel must in fact have relied upon the common assumption, to a sufficient extent, rather than merely upon his own independent view of the matter.

12 CAS-13449-R1C9 iv) That reliance must have occurred in connection with some subsequent mutual dealing between the parties.

v) Some detriment must thereby have been suffered by the person alleging the estoppel, or benefit thereby have been conferred upon the person alleged to be estopped, sufficient to make it unjust or unconscionable for the latter to assert the true legal (or factual) position.”

13 CAS-13449-R1C9 “… how a person carrying on business of the relevant kind would act if he had adequate but not unlimited staff and resources and was motivated by reasonable but not excessive urgency”4

4 Paragon Finance v DB Thakerar & Co [1999] 1 All ER 400 5 Webber v Department for Education [2016] 2519 Ch. 14 CAS-13449-R1C9

“In principle public sector organisations should always pursue recovery of overpayments, irrespective of how they came to be made. In practice, however, there will be both practical and legal limits to how cases should be handled. So each case should be dealt with on its merits.”

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Directions

Anthony Arter CBE

Deputy Pensions Ombudsman 18 October 2023

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