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Common scheme disputes

Invalid scheme amendments

There are many circumstances in which the trustees or sponsor of an occupational pension scheme may wish to make amendments to the governing provisions of the scheme. If it emerges that a scheme amendment is invalid, then changes which may have been treated as part of the scheme’s structure for years could in fact be ineffective, resulting in an increase to the scheme’s benefits and liabilities.

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Most final salary pension schemes are required by law to increase pensions in payment by a minimum amount and to revalue deferred members’ benefits each year in order to help protect a member’s pension against inflation. In what circumstances can a scheme’s revaluation method be changed from RPI to CPI?

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Rectification is a court ordered remedy which allows the claimant, usually the employer, to fix a mistake in the trust deed or rules with retrospective effect. How does it work, and when will it be granted?

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Professional negligence

Mistakes happen – it is an inevitable part of life – but when a mistake is made in relation to a pension scheme it can have significant consequences. The mistake usually needs to be corrected, but the question is whether, if there is a significant loss to the scheme or the employer, the trustees and employer should take action to recover those losses from the negligent adviser.

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Interpreting the trust deed and rules

A pension scheme’s trust deed and rules is a fundamental document, combining in one source the scheme’s constitution, the trustees’ powers and members’ entitlements. The rules of any pension scheme evolve over time as circumstances and the law change, but the way that rules are interpreted can also change. Interpreting scheme rules – particularly where multiple amendments have been made over time – can be difficult.

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Equalisation/GMP equalisation

Over 25 years have passed since the landmark Barber judgment, in which the European Court of Justice ruled that the common practice of providing different age conditions for men and women under occupational pension schemes breached the principle of equal pay. However, issues around equalising pension ages are still giving rise to disputes, with a potentially large price tag attached.

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Employers may treat groups of employees differently in relation to their pension benefits, provided that the treatment is not unlawful due to discrimination. Pension schemes are subject to a non-discrimination rule, and trustees have specific duties in this area.

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