A Practitioner’s Guide to Correcting Mistakes in Pension Schemes

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