Circular 16/2020 Circular Title: Internal Dispute Resolution (IDR

Circular Number:

Circular 16/2020

Circular Title: Internal Dispute Resolution (IDR) procedure for pension

appeals in relation to beneficiaries/disputed beneficiaries of

pre-existing civil service pension schemes and of certain public

service pre-existing pension schemes

To: HR officers in Government Departments, Offices and Public

Service Bodies

A Dhuine Uasail

I am directed by the Minister for Public Expenditure and Reform to set out the Internal

Dispute Resolution (IDR) procedure for pension appeals in relation to beneficiaries/disputed

beneficiaries of pre-existing pension schemes

in:

 the civil service; and

 the public service where it is specified in either the governing legislation establishing the

body, or in the pension scheme rules, that the Minister for Public Expenditure and Reform

(or formerly Minister for Finance

) is responsible for making the determination.

Additionally Section 2 and 3 of this Circular provide information applicable to all civil and

public service pension disputes, regardless of scheme.

Date:

09 October 2020

File Reference:

P037-004-2018

Purpose:

This Circular outlines Internal Dispute Procedures for pension

appeals in relation to beneficiaries/disputed beneficiaries of

pre-existing pension schemes.

Relevant Legislation:

Financial Services and Pensions Ombudsman Act 2017 /

Pensions Ombudsman Regulations S.I. 397 of 2003 (repealed)

Effective From:

09 October 2020

Mise le meas

____________

Colin Menton

Assistant Secretary, Public Service Pay and Pensions Division

Public service pension/superannuation schemes in place prior to the establishment of the Single Public Service Pension Scheme on 1

January 2013

Such functions transferred to the Minister for Public Expenditure and Reform under S.9(1)(a)(i) of the Ministers and Secretaries

(Amendment) Act 2011.

Tithe an Rialtais, Sráid Mhuirfean Uacht, Baile Átha Cliath 2, D02 R583, Éire

Government Buildings, Upper Merrion Street, Dublin 2, D02 R583, Ireland

T +353 1 676 7571 LoCall 1890 66 10 10

www.per.gov.ie

1. Scope: Sections 2 and 3 of this Circular contain information applicable to all civil and public

service pension disputes irrespective of the civil/public service scheme a dispute may relate

to.

Section 4 onwards and the appendix outline the procedures HR offices in government

departments, offices and public service bodies are required to implement for disputes in

respect of beneficiaries/disputed beneficiaries of pre-existing pension schemes (public

service pension/superannuation schemes in place prior to the establishment of the Single

Public Service Pension Scheme on 1 January 2013)

in: (i) the civil service; and (ii) the public

service where it is specified in either the governing legislation establishing the body or in the

pension scheme rules that the Minister for Public Expenditure and Reform (PER) or formerly

Minister for Finance

is responsible for making the determination.

HR managers/personnel officers in government departments, offices and public service

bodies should make these procedures available to eligible individuals (see section 4 – “Who

can appeal”) who might have reason to appeal pension decisions linked to these schemes. It

is open to public service bodies to use their own guidance document modelled on this Circular

and appendix, and adapted to its own particular administrative procedures and relevant

legislation. However, it must incorporate the requirements laid out in this Circular and

appendix, and the appendix checklist will still be required when an appeal is submitted to the

Department of Public Expenditure and Reform (DPER).

Pending the establishment of a dedicated appeals process for the Single Public Service

Pension Scheme (“the Single Scheme”), appeals taken by Single Scheme appellants, including

those disputing their placement in the Single Scheme, should be dealt with in accordance with

the principles outlined in section 2 and 3 of this Circular. Queries in relation to such appeals

should be directed to [email protected].

This Circular should be circulated to all offices and bodies under your aegis.

2. Background: The Pensions Ombudsman Regulations S.I. 397 of 2003 (“the Regulations”),

made under Section 132 (Part XI) of the Pensions Act, 1990 (as amended), were repealed by

the Financial Services and Pensions Ombudsman Act 2017 (“the 2017 Act”) which laid down

statutory requirements with regards the provision of IDR procedures by pension-providers.

The repeal of the Regulations did not negate the use of IDR procedures, nor did it prevent the

use of IDR procedures incorporating requirements laid out in the repealed Regulations on an

administrative basis where such are considered appropriate and necessary.

The current IDR procedures in respect of pre-existing pension scheme appeals cite the

repealed Regulations. In light of their repeal and following a general review of the IDR

procedures in respect of these schemes - which highlighted a need for increased clarity with

regards the steps all parties should follow - this Circular now replaces any previous

Circulars/Letters/Guidance issued with regards to pension appeals/IDR procedures relating to

pre-existing schemes in the: (i) civil service; and (ii) public service where the Minister for PER

has a role in the determinations. This includes:

Such functions transferred to the Minister for Public Expenditure and Reform under S.9(1)(a)(i) of the

Ministers and Secretaries (Amendment) Act 2011

 Department of Finance Guide for Departments and State Bodies: internal dispute

resolution (IDR) in schemes where the Minister for Finance is responsible for making

a determination in claims which may proceed to the Pensions Ombudsman, 7

February 2008 (P18/227/98), and updated version of this dated 29 March 2018; and

 Department of Finance Public Service Pension Appeals – Information Note for

Appellants, 23 June 2009

3. Legal basis and duty to provide IDR procedures: The repealing of the Regulations did not

affect the statutory role of the Minister for PER in relation to public/civil service pension

disputes where it is laid down in civil and public service legislation. Furthermore, the 2017 Act

still requires complainants to complain to their pension-provider, and give it a reasonable

opportunity to deal with the complaint, before complaining to the Financial Services and

Pensions Ombudsman (FSPO).

Constitutional, ECHR and administrative law afford a right to fair procedures. Public bodies,

and those working in them, have a positive obligation to apply fair procedures when making

decisions regarding individuals’ entitlements. The provision of an IDR procedure in civil/public

service pension disputes/appeals, and the procedures themselves, are required and should

serve to ensure decisions are reached in a way that is procedurally fair and without bias e.g.:

 information being reviewed and relied upon in making the IDR determination should

be made available to the appellant and they should be given a chance to respond

before a determination is reached;

 the person making the IDR determination should not be involved in the original

decision being complained of; and

 the reasons for the IDR determination should be provided to the appellant.

Potential appellants, along with civil and public service pension scheme providers, should be

aware of:

 The statutory remit of the Financial Services and Pensions Ombudsman in

investigating pension complaints (section 44 of the 2017 Act), namely the conduct of

a pension-provider involving:

 alleged financial loss occasioned to an appellant by an act of maladministration

done by or on behalf of the pension provider, or

 any dispute of fact or law that arises in relation to conduct by or on behalf of

the pension provider.

 The statutory time limits (Section 51 of the 2017 Act) for pursuing pension complaints

to the Financial Services and Pensions Ombudsman, whichever is the latest to expire

of:

 6 years from the date of the conduct giving rise to the complaint;

 3 years from the earlier of the date on which the person making the complaint

became aware, or ought reasonably to have become aware, of the conduct

giving rise to the complaint.

 The FSPO can extend these timelines where they consider it just and equitable to do

so. The time limits are also frozen while a complaint is being considered under local

IDR procedures. However, the FSPO can investigate a complaint where the pension-

provider has failed to complete the procedure in time for the complainant to make

a complaint to the FSPO within the time limits above, or if the FSPO considers the

complaint is of such importance to warrant waiving the IDR procedure (Section 54 of

the 2017 Act).

4. Who can appeal: Appellants under these IDR procedures can be beneficiaries and

disputed/potential beneficiaries of pre-existing schemes. An appeal under these IDR

procedures may also be made or continued on behalf of a beneficiary by a representative

nominated by the member, e.g. Trade Union representative or solicitor. An appeal may be

made or continued on a beneficiary’s behalf when the member dies, or is a minor, or is

incapable of acting for themselves.

It should be noted however that the public service employer of the member/alleged member

in question is not appropriate to act on an appellant’s behalf should they pursue an appeal to

DPER/Minister for PER or should the appellant pursue the complaint further to the FSPO. The

public service employer is bound by the rules of the relevant public service scheme and the

policies/decisions of DPER and the Minister for PER.

5. Nature of decisions that can be appealed: These IDR procedures apply where one wishes to

appeal a decision directly linked to pension scheme terms and/or pension benefits. They do

not apply in relation to other HR/contract/retirement-related decisions. For example, a

decision by an employer not to grant ill-health retirement is a HR decision rather than a

pension decision. If ill-health retirement has been granted and then a dispute arose regarding

the calculation or payment of an ill-health retirement pension awarded, an appeal could be

pursued under these procedures.

6. Who should appellants/prospective appellants contact: Appeals should be raised with the

HR office of the relevant Body/Department. Relevant Body/Department means the

Body/Department that was involved in the pension decision being complained of. For

example, if a period of service early in one’s career was not deemed pensionable by the

employer at the time and the individual wishes to dispute this, it is the HR office of their

employing body/department at the time of that period of employment that should be

pursued, and not the final employing Body/Department, if different.

7. Restriction on comment while appeal is under consideration: From the time a person

commences the formal appeal process (see Stage 2 in appendix) until a determination has

issued, the appellant should receive no communication either in writing or verbally to indicate

the possible success or failure of their appeal. This approach is necessary given the quasi-

judicial process involved and applies to PQs, representations, FOI requests and similar

requests.

8. Determinations where Minister for Public Expenditure and Reform consultation or consent

is required: There are also some public service schemes which provide that the Minister for

PER should give consent to, or be consulted on, a determination to be made by another

Minister. In such cases, the other Minister should not make any determination until after such

consent from, or consultation takes place with, the Minister for PER. In these cases, in order

for the Minister for PER to consult on the case, DPER would require the same documentation

to be submitted as part of this process as is laid out in the appendix checklist.

9. Queries about this Circular:

In relation to pre-existing scheme appellants:

 Queries from individuals should be raised with their local HR unit

 Queries from public service bodies should be raised with their parent Department

 Queries from Departments can be raised with this Department via email to

[email protected] (Note: this email address is for HR offices and pension

administrators, individual queries to this email address cannot be answered)

In relation to Single Scheme appellants, including those disputing placement in the Single

Scheme:

 Queries should be directed to [email protected]

Appendix 1: Outline of IDR procedure

Stage 1: Written explanation of decision

If an eligible individual (see section 4 above) has an issue or concern with regards a pension

decision, the HR officer of the relevant body/department (if they have not already done so)

should provide a written explanation of the decision within 1 week of the date of the matter

being raised.

The HR officer should notify the person that if they are not satisfied with the written

explanation of the decision (provided at this stage or previously), they can pursue a formal

appeal via Stage 2 of the IDR procedure. They should be provided with a copy of this

document (or equivalent if drawn up by the public body in question but incorporating these

procedures).

In preparing the written explanation, the relevant body/department should check records

and the pension scheme rules to ensure the rules and terms have been applied correctly in

the particular case. They should satisfy themselves that their interpretation of the relevant

legislation/scheme rules and procedures in question are correct.

Consultation with other parties involved in the decision, like the respective pensions

administrator (if separate to the HR office), may be required e.g. in the case of the civil service,

consultation with the NSSO – who administer civil service pensions - may be required when

the matter relates to calculations, payment or other administrative matters. Where it is

accepted that an error or omission has occurred the matter should be rectified immediately.

The response should be comprehensive and should quote the relevant scheme rules and

explain how and why they applied in the particular case.

Stage 2: Formal Appeal

1) In deciding whether and when to instigate a formal appeal, prospective appellants

should bear in mind the deadlines for pursuing a complaint to the FSPO (outlined above

in Section 3) and that the FSPO will generally require that the matter be appealed to

their pension-provider in the first instance.

The appellant should notify the HR office in the relevant body/department that they

wish to pursue a formal appeal. They should submit a statement in writing with

information including:

 the name, address and date of birth of the beneficiary or disputed/potential

beneficiary

 a correspondence address

 details of the dispute, including the response they received from HR at Stage

1 (or earlier)

 a clear statement of the reasons why they are still aggrieved and the grounds

on which the appeal is being continued to Stage 2. Provide detailed

information e.g. relevant dates, places and times

The statement must be in writing and signed by or on behalf of the actual or

disputed/potential beneficiary. Copies of documents referred to, and evidence being

relied upon e.g. contracts, scheme rules, statements, emails, letters, invoices and receipts

should be included also.

2) The relevant body/department should prepare a detailed response to the appellant’s

statement and documentation.

3) The relevant body/department should coordinate the necessary appeals documentation.

The necessary documentation required is listed in a checklist in the appendix of this

Circular. Where multiple parties played a role in the decision (e.g. a local HR office, a

payroll/pension administrator), all parties should be notified of the appeal by the

relevant body/department and a statement, along with any documentary evidence

being relied upon, from all parties must be included in the submission prepared by the

relevant body/department

4) Submission of papers:

i. In the case of the public service:

a. The appeal documents should be submitted by the relevant body to the line

department of the referring Minister specified in the scheme

rules/governing legislation within 2 weeks of receiving the appellant’s

appeal.

b. The line Department must then ensure that there is all the necessary

information and details to present the complete appeal, both from the

appellant’s point of view and the relevant body’s point of view. Any

additional information deemed necessary should be requested from the

appellant by the line department, with a copy also sent to the body.

c. The line Department should set out a factual description of the

circumstances surrounding the appeal, the appellant’s case, the relevant

body’s case, the relevant legislation/scheme rules in question and any

notable features – in essence crystallising all the issues so that they can be

adjudicated upon by the Minister for PER.

d. The papers and completed checklist - signed by the line department – should

be submitted to DPER within 2 weeks of receiving the papers from the

public service body. A copy of the submission papers should be sent to the

appellant at the same time (save for legal advice should it be decided to

withhold on the basis of legal privilege

) and the line department should

notify them that they have 10 days in which to forward comments to the

Pension Appeals Team in DPER.

ii. In the civil service:

a. The civil service HR office of the relevant body/department should set out a

factual description of the circumstances surrounding the appeal, the

appellant’s case, the relevant body/department’s case, the relevant

legislation/scheme rules in question and any notable features – in essence

crystallising all the issues so that they can be adjudicated upon by the

Minister for PER.

b. This factual description and the other appeal documents, along with a signed

copy of the appendix, should be submitted to DPER within 2 weeks of

receiving the appellant’s appeal. A copy of the submission papers should also

be sent to the appellant (save for legal advice should it be decided to

withhold on the basis of legal privilege5) at the same time and the HR office

should notify them that they have 10 days in which to forward comments to

the Pension Appeals Team in DPER.

The appeal papers should be addressed to the Pension Appeals Team, Public Service

Pensions Policy Unit in DPER and sent by post and in soft copy to the email address

[email protected]. Please be advised that DPER can only accept and progress an appeal

where the checklist provided in the appendix has been completed and signed by a

representative of the referring line department in the public service category (i) above, or of

the civil service HR office of the relevant body/department in the civil service category (ii)

above.

5) In the course of examining the appeal, the advice of an expert in the relevant area, such

as a lawyer, actuary, pension consultant or accountant, who is not involved in the matter

at issue, may be sought by DPER. If such is being sought, the DPER appeals officer will:

• inform the parties of their intention to ask for expert advice;

• on receipt of the advice, inform the parties of the nature of the advice

obtained; and

• give the parties an opportunity to make submissions in regard to the advice.

If legal advice is withheld, a note on the nature of the advice should still be provided to the

appellant.

If legal advice is withheld, a note on the nature of the advice should still be provided to the

appellant.

6) A “notice of determination” will be given in writing to the appellant within 3 months

from the date all particulars required to make the determination have been furnished6.

The notice of determination will include:

 a statement of the determination;

 the reasons for the determination, and any findings of fact that were material

to the determination;

 a reference to such parts of any rules of the scheme relied upon and, where a

discretion has been exercised, a reference to such parts of the rules of the

scheme by which such discretion is conferred ;

 a reference to any legislation, legal precedent, ruling or other material relied

upon; and

 a statement that the appellant should check whether the complaint or dispute

is one in respect of which the Financial Services and Pensions Ombudsman has

jurisdiction to investigate and that further information can be found at the

website of, or by contacting, the Office of the Financial Services and Pensions

Ombudsman

7) The determination will also be shared with the referring line department in the case of

public service appeals above, or of the relevant body/department in the case of civil

service appeals. If it is a public service appeal, the line Department should forward this

to the public service employer involved and instruct them to make any necessary

changes/revisions to the pension as result of the determination. In the case of the civil

service, the HR office of the referring line Department should instruct the NSSO to make

any changes/revisions to the pension as required by the determination.

If it was considered that expert advice was required upon review of the appeal documents submitted, the 3-

month deadline would pause until receipt of said advice.

Checklist for IDR: Appeal papers required

Yes

Explanation if No

A copy of the written explanation of the decision, as provided to the appellant when the matter was

raised initially (see Stage 1 above)

Appellants’ appeal statement submitted at Stage 2 ( see Stage 2, Step (1) above)

A copy of any documentary evidence being relied upon by the appellant

Response to the appellant’s statement by all parties involved in original decision (see Stage 2, Step (2)

and (3) above)

Copy of any documentary evidence being relied upon by any parties involved in original decision (see

Stage 2, Step (2) and (3) above)

Factual description of the case crystallising the issues arising by the office/body referring appeal to

DPER pension appeals team (for details required see Stage 2, Step (4) above)

A copy of the rules of the scheme, and any relevant statutory provisions/Circulars/Letter to Personnel

which are in question/being relied upon

Legislative provision/scheme rule that dictates that the Minister for Public Expenditure and Reform is

responsible for making the determination. (This is required for all public service appeals submitted to

DPER)

Any further information (such as personnel records, contract of employment, consent/option forms, contribution records, related

correspondence). Please list same.

To be signed by representative of the referring line department in case of public service appeal, or of the civil service HR office of the

relevant body/department in case of civil service appeal: I certify that the appellant has been made aware of all information being submitted

as part of their appeal and has been advised that they have 10 days in which to forward any additional comments/information in response to

this submission to the Pensions Appeals Team of Public Service Pensions Policy Unit, Department of Public Expenditure and Reform.

Signature: Date:

Overview of Internal Dispute Resolution Procedures for disputes involving pre-existing schemes in (i) civil service and (ii) public service

when Min/PER makes a determination

Step 1: Individual expresses

concern re decision

(ii) Public Service

(i) Civil Service

Step 5, 6, 7: DPER review,

consult and issue determination

Step 2, 3: LHR prepare

response, coordinate appeal

papers, and submit to line

Department of referring

Minister

 LHR = local HR in relevant

Body/Department responsible for

making the initial decision being

complained of

Stage

Step 4: Line Department

ensure all documentation

included to present complete

appeal, set out factual

description of case, submit to

DPER

Step 1: Formal appeal

submission to LHR by individual

Step 2: Written explanation of

decision by LHR to individual

1 week

2 weeks

3 months

Step 5, 6, 7: DPER review,

consult and issue determination

Step 2, 3, 4: LHR prepare

response, set out factual

description of the case,

coordinate appeal papers and

submit to DPER

Step 2: Written explanation of

decision by LHR to individual

Step 1: Formal appeal

submission to LHR by individual

2 weeks

1 week

3 months

2 weeks

Step 1: Individual expresses

concern re decision

Stage