Of the seven determinations published on the Pensions Ombudsman’s website this week, one (Mr Y, CAS-74570-V0T1, 30 January 2023) related to auto-enrolment. When I interviewed Anthony Arter (Talking Pensions Ep1), he mentioned the increasing number of complaints relating to auto-enrolment, so we can expect to see more of these being dealt with by the Ombudsman.

Whilst the primary role in relation to auto-enrolment lies with tPR (see s.5(1)(ca) of the Pensions Act 2004 and the compliance notice provisions in the Pensions Act 2008), and breach of the employer duty provisions does not give rise to a right of action for breach of statutory duty (s.35(1) of the Pension Act 2008), there will be occasions where the Ombudsman can act, such as where where the duty breached is also a breach of the scheme rules.

A particularly interesting decision in this respect is Mr Y (PO-23597, 22 June 2022), which can be found here. At paras 65-71 of the Determination, it was indicated that a trustee might have a duty (amongst other things) to amend the scheme to ensure that the employer complied with its auto-enrolment duties. In that case, an employer had failed to re-enrol an employee in a DB scheme when the employee had asked to rejoin: the trustee was criticised for believing the non-payment of contributions was simply a matter for the employer and was ordered to pay £500 to the complainant for his distress and inconvenience. The Ombudsman relied on tPR’s guidance on the statutory increase in minimum auto-enrolment contributions, which states that scheme rules need to reflect the increase.

It will be interesting to see if the Ombudsman continues to require trustees to take pro-active steps in the implementation of auto-enrolment obligations which, under the legislation, are presented to be a matter for the employer.