Time limits can sometimes get respondents off on a technicality. They do not have to defend themselves successfully on the merits of the case and therefore the time limit argument can be very attractive. As an example; in the year ended 31 March 2000, 196 complaints or disputes were rejected by the Ombudsman as being out of time.
The two essential elements to time limits on claims are:
(a) for how long does the clock run; and
(b) when does the clock start running?
Limitation period
The normal limitation period is three years for complaints of maladministration and disputes of fact or law. The period was first introduced from 1 April 1991 by the Personal and Occupational Pension Schemes (Pensions Ombudsman) Regulations 1991 (SI No588). The provision is now contained in the Personal and Occupational Pension Schemes (Pensions Ombudsman) Regulations 1996, reg 5. For consideration of the retrospective effect of the legislation, including in the context of the Personal and Occupational Pension Schemes (Miscellaneous Amendments) (No2) Regulations 1997, see the decision of Lightman J in (No 2) [2000] 10 PBLR 12.
The period compares favourably with the six months usually imposed on employment related claims such as unfair dismissal or sex discrimination but less favourably than claims such as breach of contract which is usually a six year period.
A complaint or dispute must actually be received in writing by the Ombudsman before the three years has expired, unless he extends the period using the discretion explained below. It is usually enough (according to David Laverick's current approach) for a case to be referred to OPAS or to be going through IDR. If, however, an OPAS case has dragged on for a long time, the Ombudsman may be reluctant to treat the limitation clock as having stopped.
From when?
The three year period will either begin to run from the date when the act or omission which is the subject of the complaint or dispute occurred or under reg 5(2) of the new regulations:
"Where, at the date of its occurrence, the person by or in respect of whom the complaint is made or the dispute is referred was, in the opinion of the Pensions Ombudsman, unaware of the act or omission .... the period of 3 years shall begin on the earliest date on which that person knew or ought reasonably to have known of its occurrence."
Therefore reg 5(2) provides a way for a complainant to avoid being beaten by the three year limitation period. The complainant could argue that although the events giving rise to the complaint or dispute happened, say, six years ago, he only discovered the facts two years ago and is therefore within the three year limitation period.
Discretion to extend
Even if a complainant is out of time due to a combination of the limitation period and the date from which time runs, reg 5(3) could offer a solution. It provides:
"Where, in the opinion of the Pensions Ombudsman, it was reasonable for a complaint not to be made or a dispute not to be referred before the end of the period allowed under ... [the rules set out above] ..., the Pensions Ombudsman may investigate and determine that complaint or dispute if it is received by him in writing within such further period as he considers reasonable."
In the Ombudsman's Annual Report 1996/97, the wording of the new regulation is contrasted with the wording of the 1991 regulations which permitted the period to be extended "where it was not reasonably practicable" for a complaint or dispute to be made or referred before the end of the period allowed ...". The Ombudsman felt compelled to apply the approach of the Court of Appeal in [1996] 2 All ER 734 in relation to part-timers; the Court held that although they misunderstood the legal position that claims were possible, it was nonetheless "reasonably practicable" for them to begin proceedings. This was quite a harsh approach; the court was essentially saying that even where domestic law provides no remedy an individual can bring a test case arguing that domestic law should provide one.
However, the Ombudsman pointed out that in the new regulations the wording is less limited i.e. "where ... it was reasonable for a complaint not to be made" the Ombudsman can extend the limitation period. Although he acknowledged that the amended wording is probably intended to cover time reasonably spent pursuing internal dispute resolution procedures (required for member/trustee disputes under Pensions Act 1995, s50) or with OPAS, "nevertheless, it would also appear to cover people like the part- timers in who had excusably mistaken their rights."
Such discretions to extend time limits are quite common. For example Lord Denning MR in [1979] QB 287 said:
"Time bars are not to be enforced rigidly against a complainant where justice requires that the time be extended and his complaint heard. In the present case the mother (or the father's father for her) explained the delay in these words:
'The main reason for delay was that I had no one to help me or give me advice, to complain about my children being taken away. I did not understand the law and consequently it was all too easy for the authorities to take my children from me and make me believe that they had powers, which I, a 21 years old female, was powerless to do anything about.'
The Local Commissioner considered that the matters amounted to "special circumstances" making it proper to entertain her complaint, even though it was not made within 12 months. I see nothing wrong with that assessment of his. He was quite justified in extending the time."
An example of the Ombudsman extending his three year limitation period was in the determination which was appealed in [1996] OPLR 149. The events complained of occurred between 1984 and 1986 but the complaint was not made until 1991. On appeal it was pointed out that the first time a complaint was specifically regarded by the Ombudsman as made against Mr Duffield was in 1995, when he was included in the investigation. Mr Duffield argued that the Ombudsman had failed to consider whether it was reasonable to allow the complaint under an extension of the usual time-limit and it seemed unreasonable given the long time that had passed (around 10 years). Carnwath J was not required to rule on this point but he observed (at p157) that:
"... I see considerable force in the submission that, before deciding to reconstitute it as a complaint against Mr Duffield, he had an obligation to reconsider the question of time- limits ..."
Another possible limit on the Ombudsman's ability to extend the usual time-limit was raised by Lightman J in [1997] PLR 95. He said (at p96):
"One of the surprising features of this case is that the Ombudsman has granted relief in respect of the alleged commission of a tort by the Administrators against the complainant some fourteen years before the date of her complaint. There is no allegation of any breach of fiduciary duty. I find it difficult to believe that Parliament intended that the Ombudsman's jurisdiction to grant relief in respect of maladministration should extend to tort claims of this character and to overriding defences of limitation to such claims and that the respondent to the complaint should be deprived of the substantive and procedural safeguards of a trial before a judge. It is however unnecessary to decide this question in this case. I have only to decide whether the alleged tort was committed."
Following the reasonableness of the exercise of this discretion will be judged in the light of comparable limitation periods e.g. for contract, breach of trust and negligence claims.
The most spectacular application of an extension of the bare three year time limit was in the Ombudsman case of [1996] OPLR 337, the Ombudsman investigated events that occurred in 1985 and 1986 following a complaint made in 1991. He directed the trustee to seek repayment of GBP 168m plus interest from the Department of Transport which had received the monies from scheme surplus on privatisation of the bus industry. A settlement was reached in 1999.
The reasonableness of the Ombudsman's exercise of discretion to extend was considered in [1999] All ER 1206. Lightman J held that although he considered that the complaint was not brought within a reasonable period, he could not conclude that no reasonable ombudsman would have held the period reasonable. Accordingly, the Ombudsman's decision to extend the usual three year limit was upheld.
