2 Comments

  1. Stephen
    August 8, 2018 @ 8:12 am

    Great blog. Good argument.

    At the heart of all this is the concept of “duty of care” – a legal obligation to act in the best interest of clients. This is something trustees sign up to. However I have learned – the hard way – trustees do not always step up and own this legal obligation.

    There is huge difference between “acting in the client’s BEST interest” and simply “doing what the client asks for”.

    Women have the right to an abortion but you don’t just walk in and ask for one and expect the doctor (with a duty of care) to respond “okidoki, on your back, open your legs”. The Doctor engages in a dialogue, a formal procedure to make sure the patient fully understands the wider consequences of what they are asking. Society and the law would expect nothing less. If the patient then insists, the procedure goes ahead.

    Trustees and TPA’s have long since argued they have a legal obligation to transfer the pension if the member insists on it and I don’t have an issue with that. However, their duty of care, surely obliges them to ensure their member understands what they are doing, especially if the TPA spots characteristics of the transfer as being a scam and likely to result in their member losing everything. They are not all doing even this and hundreds of people are unwittingly losing 40 years of hard earned savings!

    I cannot believe trustees and TPA’s cannot spot a scam when they see one. Every IFA I spoke to when I was trying to find one to help me out of the scam I got caught in said in a heartbeat: “I think you have been scammed and you’re unlikely to get any of it back mate” – words to that effect – the minute I said it had been transferred to a QROP. Some refused to take me on – claiming they knew nothing about QROPS but I suspect it had more to do with they felt I had lost all my pension and there was no point.

    Many TPA’s were (and still are no doubt) simply doing “what the client asks for” rather than alerting their members to the dangers of pension scams – basically just aborting the baby without any discussion of the consequences with the patient.

    A “duty of care” has ALWAYS been a legal obligation on trustees and didn’t just come into force in Feb 2013 with the launch of the Scorpion Campaign!

    The Ombudsman’s ruling is basically telling trustees to step up and own their “duty of care” or pay the consequence for their negligence but the Ombudsman’s argument was predicated on the guidelines of the Scorpion Campaign from Feb 2013.

    The next great leap forward would be to rule against a trustee for failing in their duty of care without reliance on the Scorpion Campaign but simply because they have a fiduciary obligation they failed to make good on! That would really be a precedent! Surely any common or garden blood sucking barrister could argue this?

    Begs the question why has this still not been tested?

    Reply

  2. Stephen
    August 8, 2018 @ 10:51 am

    What was striking in the case of Mr. N and the Police Authority case was, there was an FCA regulated adviser, Gerard Associates advising Mr. N.

    In my case, the adviser was, as it now turns out from recent research, at the material time unregulated to do anything anywhere in the EU! Yet my ceding provider argues I was “given appropriate independent advice” – or so they told the receiving QROP in writing but later admitted to me that was a boiler plate letter and they hadn’t actually checked I had received “appropriate independent advice”. It seems the advisory firm conned both me and the trustee of my DB pension.

    Having an FCA authorised adviser, it is strange the Police Authority didn’t argue that Gerard Associates were at fault for the unsuitable advice. The Ombudsman has, in my opinion, set a surprising precedent. Placing the onus on the trustee irrespective of the regulatory status of the adviser and the suitability of the advice given.

    Not sure how this will play out – but if it gets redress for victims of scams and prevents future scams, then I am all for it.

    Reply

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