Pensions Ombudsman finds trustee's decision on winding up not to exercise discretion to use surplus assets to augment members' benefits was reasonable: Mr S (CAS-92093-N4D9)

The Pensions Ombudsman has dismissed a complaint by a pensioner member concerning the trustee's decision to return a surplus of approximately £12m to the sponsoring employer on the winding-up of an occupational pension scheme.

Under the scheme rules, the trustee was required to secure member benefits through the purchase of individual insurance policies or annuity contracts and comply with the winding-up provisions in section 76 of the Pensions Act 1995. In relation to surplus assets, the scheme rules provided that the trustee may, in consultation with the employer, use any such surplus to augment the members' benefits, "if it considers it just and equitable to do so". Thereafter, any remaining assets were to be returned to the employer.

After consulting with the employer and the members, the trustee decided that all the surplus assets, less tax, should be returned to the employer on the completion of the wind up. The member then contended that the scheme funds were only to be used for the benefit of its members and that the surplus consisted of various elements, including monies paid in by the membership, increases in members' contributions and investment returns. As a result, it was "morally indefensible" for the employer to benefit from the surplus.

The Ombudsman held that the trustee's decision had been reasonable and was not perverse. He was satisfied that the trustee had followed the requirements of the scheme rules and interpreted them correctly in reaching its decision. Having reviewed the minutes from the trustee council meetings, it was evident that the trustee had considered all the potentially relevant factors, including (but not limited to) the views of the employer, the source of the surplus and members' expectations. Most importantly, the trustee recognised that the employer had paid significant additional contributions (amounting to over £16 million between 2005 and 2016) and had borne all the downside risk for the duration of the operation of the scheme, whereas the members had borne no downside risks. The members were to receive their promised benefits in full, with most being fully inflation-linked. On this basis, the trustee determined that it was only fair and reasonable to return the surplus to the employer.