Appeal against pension benefits of former Trinity College Secretary fails



An appeal brought against the Pensions Ombudsman by the Department of Public Expenditure and Reform, the Department of Education, and the Higher Education Authority with regards to the pension benefits granted to Michael Gleeson, who was granted permission to retire at 60 with full pension, has failed.

The case concerns the transfer of Trinity College’s pension fund to the State in 2009, which granted the appellants certain statutory rights, including a say in any moves by the College to “augment” any employee’s pension.

Mr Gleeson had reached an agreement in 2005 which allowed him to retire at 60 with his full pension, rather than having to wait until he was 65, as contained within the pension Scheme.

In line with the pension Scheme’s policy, contributions were made to the Scheme in order to ensure a cost neutral change to the Scheme had been made.

In 2011 the appellants directed Trinity College to adjust the pension of Mr Gleeson, as the “augmented” pension was not permitted, and that his pension should be reduced to reflect his “early retirement.”

Mr Gleeson first appealed this decision to the Higher Education Authority, who rejected his appeal.

He then appealed to the Pension Ombudsman, who, following a detailed consideration, found that “revised terms of employment were agreed with Mr. Gleeson in 2005, under which he was entitled to retire at age 60 with full pension benefits.”

This decision was in turn appealed, with the appellants arguing that the Ombudsman erred significantly in his conclusions, made a fundamental error of law in that he wrongly interpreted the requirements of the pension Scheme, and that it was not open to the Ombudsman to make the conclusions he did.

Delivering the judgment, Ms Justice Baker noted that the focus of the court hearing a statutory appeal against the decision of an Ombudsman is to determine whether the decision as a whole contained serious and significant errors, following Financial Services Ombudsman v. Millar IECA 127, Willis v. Pensions Ombudsman IEHC 352, andMinister for Education and Skills & Anor. v. The Pensions Ombudsman IEHC 466.

However, following Governey v. Financial Services Ombudsman IESC 38, it was noted that such deference did not extent to the decision of a tribunal in deciding questions of law.

The Judge therefore considered the Ombudsman findings of law, namely that the alteration in Mr Gleeson’s pension scheme had actually been brought about through contract, and that rather than retiring early, Mr Gleeson’s normal pension age had been changed.

The Judge considered the argument of the appellants that the Ombudsman had strayed impermissibly into matters of contract.

In this regard, it was found that “whilst the Ombudsman may not engage the exercise of resolving an inter parties contractual dispute, his competence extends to interpreting the contractual terms operating between the parties to the dispute before him”.

“It would make little sense that the Pensions Ombudsman would not regard it as important to understand, and if necessary to interpret, the pension elements of a contract of employment, and indeed the starting point for most disputes will be an argument that the contractual pension entitlements must yield a particular result.”

As to whether the finding that Mr Gleeson did not retire early, and that a decision to allow him to retire at aged 60 had lawfully been taken by the College in 2005, the Judge found that considering the evidence before him, the Ombudsman had made a decision that the law did permit and within his competence.

The appellants also argued that because the Ombudsman had made a finding of maladministration in the context of the decision with regards to Mr Gleeson’s pension, he could not come to the conclusion that the decision to augment the pension had been valid.

However, the Judge found that “having characterised the contractual position and finding that Mr Gleeson did not retire “early” in my view the Ombudsman was competent to find that the Board had no mandated role in the decision to alter the terms of Mr Gleeson’s contract”.

“He was therefore in my view entitled to disregard the maladministration as not such as to invalidate the arrangements made in 2005, and because no requirement existed that formal Board sanction be given.”

The Judge considered the Ombudsman’s decision as whole, finding that: “The question before him was whether the Ministers did have a discretion to refuse augmentation of Mr Gleeson’s benefits at the time he retired in 2011. His decision in that regard is clear, and reasoned, and flowed from his primary finding of fact that as Mr Gleeson did not retire “early”, the attempt to retrospectively exercise such powers was impermissible and oppressive.”

  • by Rachel Killean for Irish Legal News