Pensions: Law, Policy & Practice Conference

About the conference

State pensions are the largest item in the UK social security budget, estimated to cost £91.6 billion in 2016/17, with 12.9 million recipients paid an average of £7,100 each. Enormous wealth is also managed by the trustees of occupational pension schemes on behalf of members to whom distributions are eventually made as a form of deferred remuneration for their work; in 2015, 33.5 million people were members of such schemes in the UK. The social and economic impact of pensions law is therefore huge, and the development of this area of law is relevant to all of us as private citizens. In legal practice, social security law and pensions law are areas that have become increasingly specialised, with many solicitors and barristers making these their exclusive practice areas.

This conference is particularly timely in the light of recent developments in relation to pensions law, policy and practice. We are expecting significant changes in pension legislation over 2019/20 in the form of new powers for the Pensions Regulator and criminal sanctions relating to wilful or reckless behaviour in relation to pension schemes, as well as the development of what will for the UK be an entirely new form of occupational pension plan – a collective defined contribution arrangement.  In the case law arena controlling employer and trustee discretions and interpretation are central issues. The Court of Appeal has in the IBM  case had to consider how far an employer’s exercise of powers in the contract of employment and in a pension scheme trust deed are constrained by its duty of “mutual trust and confidence” and by the Imperial duty of good faith. In 2018 the Court of Appeal examined, in the BA pension scheme litigation, the concept of improper purpose and decided how it should operate to constrain the exercise of a trustee power.  A settlement of a SC appeal is currently awaiting court approval. At a policy level, the debate continues as to whether and, if so, what transitional arrangements should be put in place for all women born in the 1950s, for whom the state pension age is being increased from 60 to 65 by 2020. In September 2017 two Private Members’ Bills were presented to Parliament on the issue (Thurley & Keen, House of Commons Briefing Paper Number CBP-97405, 19 September 2017). The Law Commission has also recently completed its report on Pension Funds and Social Investment (Law Com No 374, 2017), which considers how far pension funds may or should consider issues of social impact when making investment decisions. The Pensions Advisory Group has been formed under the leadership of Mr Justice Francis and HHJ Edward Hess in order to conduct an interdisciplinary review of how pensions are treated on divorce. Its aim is to offer guidance to both the legal profession and the divorcing public and to encourage consistency of practice which is currently lacking in this area.

This conference will bring together academics and practitioners with an expertise and interest in the area to exchange ideas, discuss issues of topical concern, and stimulate the development of new academic literature and research agendas for the future.

The conference is sponsored by

Programme (subject to change)

Thursday 20th June 2019

09:00 Registration

9.30: SESSION 1
Chair: Charles Mitchell, UCL

Scott Donald (UNSW) – ‘The Pension Fund as a “Virtual” Institution’
Charles Cameron (Slaughter and May) – ‘How Should Pension Scheme Sponsors Engage with Extreme Prudence?’
Deborah Mabbett (Birkbeck), ‘Whose Risk? Whose Appetite? A Reinterpretation of Trustees’ Duties towards Beneficiaries in Defined Benefit Pension Schemes’

11:00: Break

11.30: SESSION 2
Chair: Sinéad Agnew, UCL

Brian Sloan (Cambridge), ‘ “Pension Freedoms”, Social Care and Inheritance’
Hilary Woodward and Rhys Taylor (Pensions Advisory Group), ‘Till Pensions Do Us Part: The Pension Advisory Group and the Search for Consensus on Divorce’

12:30 LUNCH

13:30: SESSION 3
Chair: Dan Schaffer, Slaughter and May

David Pollard (Wilberforce Chambers), ‘Interpretation of Pension Trusts: Applying the General Rules?’
Paul S Davies (UCL), ‘Rectification and Pensions’

14:30 BREAK

14:50 Session 4
Chair: Virginia Mantouvalou, UCL

Alysia Blackham (Melbourne), ‘Pensions and the Modern Workforce’
Lydia Seymour (Outer Temple Chambers), ‘The Courts, Non-Discrimination and Systemic Change in UK Public Sector Pension Schemes’
Ronald H Rosenberg (William & Mary), ‘Cutting Pension Rights for Public Workers in the US - Don’t Look to the Courts for Help’

16:20 BREAK

16:50 SESSION 5
Chair: Noel Whiteside, Warwick

Sinéad Agnew (UCL), ‘The History of Trusts as Pension Pots’
Jo Grady (Sheffield), ‘The USS Dispute and Changing Narratives about Pensions as an Employment Right’

18:00 Reception

19:00 Conference Dinner (optional)

Friday 21st June 2019

08:45 Registration

09:30: SESSION 6
Chair Sandeep Maudgil, Slaughter and May

Jessica Hudson (UNSW) and Charles Mitchell (UCL), ‘Consequences of the Defective Exercise of Scheme Powers’
James Kolaczkowski (UWE), ‘Balancing Employer and Employee Rights in Occupational Pension Schemes: Acknowledging the Current Role of Occupational Pensions in Society’

10.30: BREAK

11:00 SESSION 7
Chair: Charles Cameron, Slaughter and May

Debbie Webb (Willis Towers Watson), 'Funding of defined benefit pension schemes in the 21st century - where should the balance lie between legislation, Pensions Regulator prescription and flexibility?
'Paul F Brice (Grant Thornton), ‘The Employer Covenant: Status in Law and Operation in Practice’
Sandeep Maudgil (Slaughter and May) and Hans van Meerten (Utrecht) ‘“Collective Defined Contribution” pension plans'

12:30 LUNCH

13:30 SESSION 8
Chair: Deborah Mabbett, Birkbeck, University of London

Bernard Casey (SOCial ECONomic RESearch) and Noel Whiteside (Warwick), ‘Personal Pensions and Problems of Persistence’
Debora Price (Manchester), ‘The Political Economy of UK Pensions: Implications for Gendered Financial Inequalities in Later Life’

14:30 BREAK

15:00 SESSION 9
Chair: Paul Davies, UCL

Alan Bogg (Bristol) and Mark Freedland (Oxford) – ‘Pensions Law and the Public-Private Divide’
Dan Schaffer (Slaughter and May), Control of Trustee Exercise of Discretions by Employers – On the Cusp of a Paradigm Shift Through the ‘Improper Purpose’ Rule?
Lord Sales (UKSC) – ‘Public Law Perspectives on the IBM Case’

16:30 CONFERENCE ENDS

 

Abstracts

Sinéad Agnew (UCL), ‘The History of Trusts as Pension Pots’
Today, the pension trust (essentially a private trust modified by statute) is the legal vehicle through which pension funds are held and administered.  However, this was not always the case.  Pension provision by employers was patchy before the early twentieth century, and historically, the need to provide for old age was dealt with in different ways.  Middle class employees purchased private insurance or annuities (if they could afford it), whilst poorer workers joined friendly societies, which provided minimal benefits in cases of sickness and (sometimes) old age. Some of the livery companies operated pensions and almshouse charities, which occasionally took the form of charitable trusts settled by wealthy benefactors.  

Where employers did provide support for their employees in old age, the ways in which they did this varied.  Often, they simply made ex gratia payments; in some cases, they established more formal superannuation funds - the civil service was one of the first employers to do this, and in the nineteenth century the railway companies followed suit.  Sometimes these funds were simply held as reserves in the company’s balance sheet; in other cases, they were segregated in a separate fund and administered by the company or a ‘trust company’ set up for that purpose (e.g., the Metropolitan Railway Company Superannuation Fund).  Eventually, by the early twentieth century, several large companies (such as Colmans and Rowntrees) set up occupational pension schemes for their employees, which were administered through trusts, and the trust became the default device for holding and administering occupational pensions.
 
This paper examines the different ways in which pensions were administered, and the legal mechanisms which were used to achieve this.  It considers how the trust came to be used as the vehicle for holding pension funds, and how pensions law developed accordingly – e.g., with a shifting emphasis from the law of gifts and charities to the law of trusts and (ultimately also) employment contracts.  

Alysia Blackham (Melbourne), ‘Pensions and the Modern Workforce’
While old age pensions fulfil a key social and economic role, there has been limited consideration of their place and purpose for the modern workforce. This paper examines different ways of conceiving of old age pensions from a theoretical perspective, and considers how these views are challenged by the changing nature of work, including factors such as growing job and international mobility, work precarity, women’s workforce participation, and demographic ageing. The paper argues that existing pension systems are not yet able to accommodate the changing nature of work, and puts forward normative criteria for evaluating and developing more appropriate pension systems for the modern workforce.

Alan Bogg (Bristol) and Mark Freedland (Oxford), ‘‘Pensions Law and the Public-Private Divide’
In IBM UK Holdings v Dalgleish the Court of Appeal endorsed an 'irrationality' test for the qualitative standard known as the Imperial duty which applies to the exercise of employers' discretions (often said to be 'unfettered') under occupational pension scheme trusts. The UKSC in Braganza v BP Shipping Ltd also endorsed an 'irrationality' standard for the implied term of trust and confidence where this was being used to scrutinise the exercise of employers' discretionary managerial powers under the contract of employment. In this paper, we argue that this apparent importation of 'public law' concepts into the realm of the personal employment contract and of the occupational pension scheme trust in fact conceals a very strong bifurcation of private law and public law modes of thought. The rise of the 'irrationality' standard reflects a strong private law alignment, once the window dressing of references to Wednesbury is stripped away. Its effect is to insulate powerful private actors from effective public scrutiny, in circumstances where those unchecked actions can have profoundly disruptive effects on the life plans of citizens.

This paper rejects the strong bifurcation of public and private law in the sphere of occupational pensions that is exemplified in Dalgleish and Braganza. The argument builds upon Martha Nussbaum's 'capabilities approach'. The stability of expectations in relation to retirement planning is integral to the human capabilities approach. In particular, the capabilities of practical reason (formulating and acting upon the planning of one's own life) and control over one's material environment (having democratic opportunities to shape the material conditions of life at work) justify a doctrine of procedural and substantive legitimate expectations in the development of the Imperial duty. This envisages a strong constitutional role for the reviewing courts in ensuring the democratic accountability of powerful private actors who would otherwise be insulated from democratic scrutiny. On this capabilities approach, 'irrationality' review would be a dereliction of the judicial responsibility to support human capabilities through the protection of legitimate expectations. We argue in favour of a heightened standard of review in legitimate expectation cases, based upon the proportionality standard articulated by Laws LJ in Nadarajah [2005] EWCA Civ 1363. This alignment with a public law perspective requires the courts to develop principles of 'good administration' in the domain of occupational pension scheme trusts.

Paul F Brice (Grant Thornton), ‘The Employer Covenant: Status in Law and Operation in Practice’
Following the first EU IORP Directive (Institutions for Occupational Retirement Provision Directive 2003/41/EC), in particular Article 16 (Sufficient Assets to cover Technical Provisions), the Pensions Act 2004 introduced the scheme-specific funding regime for the funding of UK Defined Benefit pension schemes. The Act also legislated for the introduction of the Pensions Regulator (‘TPR’).
TPR’s regulatory guidance makes considerable reference to the importance of the Employer Covenant – but nowhere does this term appear in primary pensions legislation.  Against this backcloth, this paper defines the Employer Covenant and considers its legal status, both from ongoing funding and moral hazard dimensions. The paper illustrates the application of Employer Covenant in practice through a number of worked examples – including by reference to regulatory determinations and parliamentary enquiries.  The paper then builds on this analysis to discuss how the Employer Covenant forms an element of TPR’s regulatory regime.

The paper illustrates the fundamental importance of the Employer Covenant, and how it sits as an integral part of prudently-chosen scheme funding assumptions alongside a scheme investment strategy; the actuarial calculation of liabilities; and the scheme’s funding and recovery plan.  It also emphasises the importance of understanding any impact on the Employer Covenant from corporate transactions given the moral hazards that these can present.

Charles Cameron (Slaughter and May), ‘How should pension scheme sponsors engage with extreme prudence?’
A trustee’s response to a given corporate event – payment of special dividend, sale of business, change of control, increasing debt or granting security over debt, reduction in credit rating etc. – will be considered by reference to the effect of the event, the funding position of the scheme, the specific powers that trustee has in that scheme and, increasingly, the likely reaction of tPR and the Pensions Select Committee to that response.

Lawyers are used to advising trustee clients that a proposed course of action is within the range of reasonable actions that a trustee could validly take with the standard and well worn questions being whether the trustee has the power to do something and, if so, is it a proper exercise of that power.   Sponsors and trustees are therefore familiar with the concept that trustees have a range of responses within which they can operate legitimately.

It has always been the case that different trustees with identical powers act at different levels within the range and sponsors can often be frustrated where trustees, seemingly unnecessarily, set the bar higher than they need to.  Often differences can be due to personalities and history alone.  Opportunities for legal recourse for sponsors faced with this are limited.

This is the context within which employers have, since at least April 1997 and the Pensions Act 1995, and more so since IORP and the Pensions Act 2004, have had to calibrate their opening positions and tactics for trustee negotiations.

Major changes to this context are, however, already in train and more is to come.  In particular, tPR, without yet having been given more powers, asserts itself to be “clearer, quicker and tougher”.   The Pensions Select Committee Chair writes, as a matter of course, to the trustee chair and sponsor of any major scheme which is part of corporate action.  tPR has had success in making examples of individuals in high profile cases such as BHS.   All these factors are causing advisers and trustees and sponsors to think differently.

To add to this, the White Paper on pensions and related consultation materials propose sweeping changes to tPR powers, many of which point in the direction of lowering the bars to tPR action.
The aim of this paper is to explore these themes, analyse what they may mean in terms of trustee and tPR/Pensions Select Committee action and decision making, and comment on how corporate sponsors may react to this context when taking lawful business actions.

Bernard Casey and Noel Whiteside (Warwick), ‘Personal Pensions and Problems of Persistence’
For over 30 years, salary-related Defined Benefit (DB) pension schemes have been in decline in the UK. Governments of all political persuasions have promoted private personal pensions in their place.  The Turner Report (2004) proposed a system of auto-enrolment. Enacted in 2008, this requires all employees with earnings above a pre-defined level (currently £10K), who are not already members of a supplementary scheme, to enrol either in a scheme currently operated by their employers or one the latter is obliged to offer from a range of recognised Defined Contribution (DC) schemes.  The best known of these is NEST.  Employees can opt out, but those who do have to be enrolled again after three years.  Auto-enrolment was rolled out in stages, in 2012 to the largest employers and then in steps to smaller employers. The last group (effectively micro-enterprises) was included in 2018.  Contributions are progressively increased, full rates being paid after three years. 

This paper focuses on problems of persistence – the continuity of contributions in the accumulation phase.  To date this issue has received little attention.  However, data from personal pension records (pre- auto enrolment and therefore entirely voluntary), indicate that within four years fewer than half of customers still contribute.   Preliminary indications of persistence in auto-enrolled schemes present a similar picture. For example, NEST reports 40 percent of its members are not currently contributing.  
Some of those lapsing may have moved to other pension plans.  Many, it is feared, have not.  Reasons for complete lapsing may lie in job change, income fluctuation, interruptions in employment for child rearing or elder care, and/or reversion to self-employment. Labour market developments since the GFC (job churn, multiple job holding, the ‘gig’ economy, the vulnerability of migrant workers) probably have an impact on persistence.  Moreover, lapses, themselves, can lead to lost pension pots. Dormant pension pots continue to carry charges that reduce their value.  Thanks to compound interest, broken contributory records in the early years have serious consequences and mothers are particularly affected by these.

Auto-enrolment has raised the numbers of providers and of eligible schemes (the latter into the hundreds of thousands). Thus, problems associated with transparency and accountability are magnified. Government intervention – to cap charges, to provide easily readable pension statements, to offer a service to trace pension savings, and to promote a Pensions Dashboard whereby consumers may trace aggregated pension holdings – has been weak. The rising significance of future losses of substantial savings is a cause for concern.

Paul S Davies (UCL), ‘Rectification and Pensions’
Claims in rectification appear to be increasingly common. When dealing with complicated areas of law, mistakes are perhaps inevitable. However, the requirements for rectification remain contested. This has garnered much attention recently in the contractual context, and this paper will consider how those debates might apply in the context of pensions. Pensions cases are interesting because it is possible that both parties to a document (eg employer and trustees) may accept that the document does not reflect their intentions, and yet rectification may still be challenged (eg by a representative member). It is important to consider the importance of mistake in rectification, and whose mistake should count for a successful claim.

Scott Donald (UNSW), ‘The Pension Fund as a “Virtual” Institution’
We conventionally speak of pension funds in ways that belie their ‘virtual’ nature. The trustee is the fulcrum of a pension fund, responsible and ultimately accountable for its prudent and proper administration.  However, the need for a wide range of specialist skills inspire most trustees to retain third parties to assist them.  Unlike the agents performing ministerial duties in the traditional trust paradigm, these third parties often perform tasks integral to the efficient operation of the fund, interacting directly with members and making investment decisions of great consequence.  Although the identities of these third parties may change from time to time, collectively they are constitutive elements of the institution we know as a pension fund.

For lawyers this virtual nature poses one set of issues, including the hoary chestnuts of whether specific activities can properly be delegated by the trustee; and how exculpatory clauses in the deed may distort the matrix of accountabilities customarily associated with the trust paradigm.  For regulators it poses an additional set of issues, including the efficacy of licensing and regulatory regimes which cover some, but not all, of the parties involved in the administration of the fund; the challenge of ensuring transparency across a de-centralised institution; and the potential for risk contagion propagating through the network of these third parties, many of whom serve multiple funds.
This paper, then, assesses the way that familiar trust law principles and bespoke regulatory regimes engage with this ‘virtual’ institutional structure.  It identifies, moreover, the crucial role played by regulators in safeguarding member interests and argues that success in this role requires a nuanced and subtle understanding of the way the law governs, and ultimately shapes, these institutions.

Professor Mark Freedland QC (Hon), FBA, now Emeritus Professor of Employment Law in the University of Oxford, continues to pursue his researches and his writing in the fields of Employment Law and Public Law as an Emeritus Research Fellow of St John’s College Oxford and an Honorary Professor in the Faculty of Laws of University College London.  The main focus of his writings has been the personal work contract and the personal work relation; from that and other legal starting-points, he has had a long-term interest in the law of occupational pension schemes.

Jo Grady (Sheffield), ‘The USS Dispute and Changing Narratives about Pensions as an Employment Right’
During 2018 we saw a small reversal in the fortunes of trade unions fighting pension disputes. The University and College Union (UCU) strike, prompted by proposed changes to University Superannuation Scheme (USS), was successful and managed to halt the immeadiate imposition of detrimental pension changes, and the Fire Brigades Unions (FBU) appeal against government changes to their pension scheme in 2015. This paper examines the extent to which we have seen a shift in the discourses used to discuss pensions during 2018, and how this narrative was changed via an analysis of the USS dispute.

The 2018 USS pension dispute, and the subsequent Joint Expert Panel (JEP) report have opened up the debate about what a pension is, the role of regulation and the regulator in pension disputes, and the role of neoliberal valuation orthodoxies. The University Superannuation Scheme (USS) strike of 2018 was a defining feature of employment relations in post-92 UK universities. The dispute was triggered by a decision in In 2017, when USS trustees claimed to have found that the cost of funding future pension promises had jumped by a third. Consequently, USS said that contributions would need to rise from 26 % of salary about 32-33 % to keep retirement benefits in their current shape. USS later revised this figure up to 37.4 %. In response, UUK announced in October 2017 that the defined benefit (DB) element of USS had become unaffordable.

A wave of strikes erupted in February and March 2018, as thousands of academics and university staff staged 14 days of walkouts. Unlike other picket line demands, however, the UCU strikers publicly challenged the USS to “show its workings”, a direct gauntlet that USS have still not responded to. The challenge was more than simply picket mischief, it was a direct request as many qualified university staff professionally disagreed with the valuation methodology being used by USS trustees to value the scheme, and which presented the downgrading of USS as inevitable. Moreover, the establishment of the JEP, which brought strike action to a close in April, demonstrated strikers were correct to question USS.   

The 100-page JEP report made for uncomfortable reading for the key players. The panel recommended that DB pensions could continue to be offered and confirmed a lot of the concerns of UCU members were correct. The USS strike was a strike was about resisting pension changes, but during the strike picketers also identified their strike as key in protecting something that became conceptualised as an employment right during the dispute. This conceptualisation of pensions as such, and subsequent defence of them and challenging of experts, mobilised activists on picket lines, and fuelled the solidarities to continue action. It continues to shape and contextualise the dispute for many UCU members. Contextualisation and challenge to dominant narrative about pensions has wider ramifications for industrial relations, and this paper will discuss that.  

Jessica Hudson (UNSW) and Charles Mitchell (UCL), ‘Consequences of the Defective Exercise of Scheme Powers’
Pension scheme trustees are typically vested with powers, e.g. to set the contribution rate from employers and members; to decide the investment policy for the scheme assets; to pay benefits to members or their dependents; to allocate actuarial surpluses; to wind up the scheme; etc. Employers are also typically given powers, e.g. to amend the rules of the scheme jointly with the trustees or on the employers’ own account; to wind up the scheme; etc. The purported exercise of such powers can go wrong for various reasons, e.g. the power does not exist; the power is exercised for an improper purpose; or in bad faith; or on a mistaken view of the facts; or in an impermissibly self-interested way; etc. Various consequences might flow from such defective exercises of power, e.g. an amendment to the scheme is ineffective; a purported transfer of legal title to trust property is ineffective at common law, or effective at common law but ineffective to destroy the beneficiaries’ equitable interest by overreaching, or is effective at common law, and effective to overreach the beneficiaries’ equitable interests, but the beneficiaries have an equity to rescind the transfer; the power-holder may be liable to compensate for loss or to disgorge profits; etc. The goal of the paper is to examine three questions: what are the different reasons why a purported exercise of power might be defective; what are the possible consequences of a defective exercise of power; and what are the consequences which flow from different types of defective exercise.

James Kolaczkowski (UWE), ‘Balancing Employer and Employee Rights in Occupational Pension Schemes: Acknowledging the Current Role of Occupational Pensions in Society’
Occupational pension provision in the UK raises significant questions of economic, social and political importance. An ageing population and uncertain economic conditions impact upon defined benefit liabilities and raise fundamental questions, such as how much freedom should be given to a sponsoring employer that is seeking to reduce its pension liabilities. Such issues frequently require the courts and policy makers to conduct a complex balancing of the legal rights of employers and employees. How this exercise is conducted depends on how the role of an occupational pension is conceptualised, either as a private arrangement between an employer and an employee, or as fulfilling a public function, integral to enhancing the welfare of society.
 
It is argued that both private and public elements are essential, but that the role played by occupational pensions has developed over time and should now be reconsidered both by policy makers and the judiciary. The legal approach to pensions issues should include more recognition of the social function fulfilled by occupational pension schemes, beyond the confines of the employment relationship. Elements of government policy are analysed, including the promotion of the growth of capital in funded pension schemes through tax relief, and the introduction of automatic enrolment. Landmark decisions including Re Courage [1987], Southwest Trains Ltd v Wightman [1998] and IBM v Dalgliesh [2018] are also analysed to the extent to which their reasoning turns on the employment relationship and the wider role of pensions in society. It is argued that legal interpretation could benefit from a starting principle that better represents the range of stakeholders who are affected by modern occupational pensions.

Deborah Mabbett (Birkbeck), ‘Whose Risk? Whose Appetite? A Reinterpretation of Trustees’ Duties towards Beneficiaries in Defined Benefit Pension Schemes’

Trustees of a defined benefit (DB) pension scheme have a duty to act in the best interests of the scheme beneficiaries. These interests might be ascertained by considering how the pension scheme fits into the financial portfolios of beneficiaries; from this, a view about the appropriate investment strategy could be derived. However, this does not happen. Instead, in deciding the investment strategy, trustees in DB schemes pay particular attention to employers’ attitude to risk, which is derived from employers’ interests in the financial management of the firm. Where these interests lie is the subject of some debate, but an influential line of argument proposes that an equity-heavy or high-risk investment strategy is not in the best interests of the firm, or more specifically its shareholders. This paper examines how the choice of investment strategies might be affected by putting beneficiary interests first.

Sandeep Maugil (Slaughter and May), ‘“Collective Defined Contribution” pension plans’
The UK Department of Work & Pensions has announced its intention to legislate and facilitate “Collective Defined Contribution” (CDC) pension plans in the UK.  This will make it possible for a UK employer to sponsor a pension plan which pays pension for life from the plan’s own assets, thereby removing the need for individual members to annuitise upon retirement if they wish to receive a pension for life, but without becoming subject to the defined benefit funding framework.  So longevity and other risks will from the outset be pooled between scheme members in a way which is a new from a UK perspective.
 
The question is what challenges this raises for policy makers and those drafting legislation.  What are the pitfalls and how can they be addressed?  Are there genuine “problems” with this form of inter-member risk sharing; or are these better classed as communication challenges which the UK needs to overcome if it is to find a form of pension provision which can survive long-term into the future?
 
This session will look in detail at the UK Government’s response to the December 2018/January 2019 Consultation on CDC and (if available) the draft legislation intended to enact it.  It will also consider how the UK approach to “Collective DC” might differ from approaches to pension plans known as “Collective DC” in other jurisdictions, but highlighting that “Collective DC” means different things in different jurisdictions, and that what other countries see as fundamental principles behind a “Collective DC” pension model (target pensions, with prudence buffers built up to smooth outcomes and trustee discretion to vary pensions only if experience moves outside a broad corridor around initial assumptions) are not necessarily the way in which the Collective DC model would work best in the UK (where one could have a simpler approach of a plan which expresses and pays benefits in pension form and invests and values pension entitlements on a collective basis, but which is otherwise much more purely “defined contribution” in outlook, taking a “best estimate” approach to all valuation questions and rebalancing benefits up or down each year so that as at each valuation date all pensions and prospective pensions are increased or, if need be, decreased so as to have the same value as the scheme’s assets).  There will be a detailed overseas case study in the form of the CDC regime from the Netherlands (the model most often touted as that which the UK should be following in its pension provision).  We can then consider how the UK regime should or might mirror or depart from the Netherlands regime and what lessons the Netherlands experience might have to offer UK legislators and policy makers.

David Pollard (Wilberforce Chambers), ‘Interpretation of Pension Trusts: Applying the General Rules?’
Interpretation of pension trusts is a big issue. Unforeseen external changes (e.g. the change in the relevant index used by government from RPI to CPI) can result in large differences in projected funding liabilities depending on the meaning of provisions in trusts drafted many years before. The Supreme Court has tried, in a series of well-known judgments over the last few years, to set out high level principles on how courts should interpret all written documents, including contracts, wills and trusts.  Despite statements that the same rules should apply to all three categories, pension trusts are developing their own sub group of interpretation principles, partly based on their context and the nature of pension trusts as having many individual beneficiaries. This paper looks at the application of the general principles to pension trusts and how helpful high-level principles are on day to day interpretation issues.

Debora Price (Manchester), ‘The Political Economy of UK Pensions: Implications for Gendered Financial Inequalities in Later Life’
The UK has undergone sweeping pension reforms since 2008, designed to strengthen the accumulation of private pension provision and liberalise the regime to allow people freedom to use their pension savings for purposes other than providing an income in later life – known colloquially as ‘pension freedoms’ and supported by a policy rhetoric of ‘freedom and choice’. This individualization and marketization of pensions raises questions of whether some may benefit from such ‘freedoms’ more than others, but also poses challenging questions about how finances are handled behind the closed doors of the household.  Argued by the architects to be to women’s advantage, this paper critically examines the nuanced gender implications of the reforms and shows that while women may be better protected against poverty, they are otherwise systematically disadvantaged in pension accumulation, and have become vulnerable in new ways in the pension decumulation phase in later life.

We conclude that the UK pension system reforms have moved in the direction of equalising outcomes, but in reality probably not very far, especially in an era of public and private sector pension reform, retrenchment of women’s jobs, and austerity cuts falling on women. Our continued heavy reliance on individualised workplace pensions for adequate incomes in late life means that personal and workplace gender inequalities will continue to be instrumental in determining gender inequality in later life, and our modelling suggests that these inequalities will continue to be substantive.  Reform of the basic state pension to an ‘above poverty’ level potentially has transformative power in reducing the extremes of older women’s poverty and associated moral hazards, but at cost to the ability of women to build adequate incomes in old age through the state second pensions, and very importantly, only if the value is maintained over time.  Furthermore, the new ‘Pension Freedoms’ carry with them considerable and somewhat hidden gendered risks for women.

Ronald H Rosenberg (William & Mary), ‘Cutting Pension Rights for Public Workers in the US - Don’t Look to the Courts for Help’
Every day we rely on public employees to provide us with a broad range of services necessary to daily life. These workers include public school teachers, fire and police, emergency medical technicians, park rangers, nurses just to name a few. As public employees these people work for local and state government and they are compensated by us for their services through the taxes we pay. In general, these are modestly paid workers who also receive pensions when they retire after many years of work. Following the financial crisis of 2008-2009 government retirement trust funds significantly lost value and their long-term rates of return fell from levels necessary to pay benefits. With a more accurate assessment, the true costs of honoring these longstanding retirement promises became much more clearly in focus and future pension shortfalls appeared imminent. With little political appetite for raising tax rates to cover this shortage, state and local governments adopted “pension reforms” to meet the impending financial challenges.

Pension reforms were carried out in many states and localities through legislative and administrative action. While they followed no uniform pattern, these policy changes had the overall effect of modifying existing public employee retirement rights in a way that reduced benefits, made benefits more difficult to earn or they completely overhauled existing pension systems. Not surprisingly, public employee and retiree groups found these changes to be harmful to their retirement expectations and they considered them a breach of trust. In over 2/3s of our states litigation followed challenging pension reform policies claiming that they were illegal or unconstitutional in their impairment of pension rights. This struggle is the principal focus of this article.

After reviewing the history of American public employee pensions, describing the current state of pension systems and setting forth their structure, this article considers the last decade of litigation to pension reform policies. In more than 100 state and federal case decisions workers and retirees have challenged the popularly-supported policy changes to their pension rights using a variety of legal theories and forms of argumentation. The review of these cases analyzes them from a theoretical perspective and it draws conclusions about the effectiveness of using a litigation strategy to overturn democratically-adopted employment policies. The overarching conclusion resulting from this study is that both state and federal courts have overwhelmingly upheld state and local pension reforms and they have refused to find statutory or constitutional rights violations for government workers. The secondary conclusion is that in order to protect their future retirement income, these employees must build better popular support and legislative protection for their contributions to the public welfare in order to avoid future cut backs in benefits.

Lord Sales (UKSC), ‘Public Law Perspectives on the IBM Case’

Dan Schaffer (Slaughter and May), ‘Control of trustee exercise of discretions by employers – on the cusp of a paradigm shift through the ‘improper purpose’ rule?’
Most UK defined benefit schemes were established between the 1920s and 1980s.  Their governing trust deed and rules on establishment were written for employers by clerks, generalist lawyers and benefit consultant ‘document specialists’ in an age before the advent of the specialist pension lawyer who appeared in the 1980s.  It was not unusual for these trust deed and rules to be written vesting unilateral control of key powers in the trustees.  These included the power to set contribution rates, the power of investment, the power to change the rate of revaluation of deferred pensions and increase to pensions in payment, the power to wind up the scheme and the amendment power.  Trustee boards were then dominated by company management.  There was little or no appreciation that the landscape could and would change radically and balance of powers would matter in the late 20th and in 21st century.  With current significant actuarial deficits on a triennial technical provisions basis and with stretching secondary funding targets of self-sufficiency and buy-out, the exercise of discretions by trustees often has a material impact on the employer’s business  - on capex, cash flow, dividend policy and employee remuneration policy change (impacting freedom to cease future accrual of defined benefit) as well as on major corporate events such as mergers and acquisitions and pre-insolvency restructuring.  Even where key discretions were vested by the trust deed jointly in the employer and trustee, the terms upon which trustees are now only prepared to agree the exercise of the discretion will often be viewed as sub-optimal by the employer.   Trustees are concerned about security of benefits, purchasing power of pensions and their own accountability to members and the Pensions Regulator.   

As a consequence of the impact on business sponsoring employers try very hard to influence and control (legitimately and in a post IBM v Dalgleish world) the way that the scheme trustees exercise their discretions – and this is only likely to increase in future as many employers view their defined benefit schemes as a legacy issue to be contained.  One way is to deploy legal argument.  Employers’ lawyers seek to persuade trustees’ lawyers that the trustees are constrained by law from acting in a particular manner.  It is therefore critical that the body of rules that controls pension trustees’ exercise of discretions is appropriately flexible to address the wide variety of trust deed provisions and the current and ever-changing landscape for schemes.  It is also critical that this body of rules is developed on a principled basis, in a manner that maintains coherence with other rules and reduces to a minimum unpredictability and does not introduce judicial substitution of trustee decision-making on merits.

This paper will consider whether the control mechanisms for trustee exercise of discretions are fit for purpose - viewed from the standpoint of the employer and trustee.  Particular focus will be given to the litigation in British Airways Plc v Airways Pension Scheme Trustee Limited which involves a wide-ranging employer challenge of trustee decision-making.   In 2019 the Supreme Court (“SC”) may hear an appeal (although a settlement is awaiting court approval).  If there is an appeal the SC will be faced with choosing between two radically different approaches for challenging the exercise of a discretion on the basis that the powers in issue have been exercised for an ‘improper’, ‘ulterior’ or ‘collateral’ purpose.  This paper will consider the implications if the SC adopts the expansive approach of the majority in the Court of Appeal (Lewison and Peter Jackson LLJ) asking whether it will herald a paradigm shift and increased legal challenges to trustee decision-making.  The paper will compare the reasoning of the majority with that of the trial judge (Morgan J), the minority (Patten LJ) and use of ‘fraud on a power’ in reported pensions cases to date.  The paper will also discuss key consequential questions arising from the application of improper purpose (some of which may go unaddressed by the SC) including the implications for trustees’ exercise of powers other than an amendment power, the refusal by trustees to exercise a jointly vested discretion, whether the trustees’ intention should be adduced subjectively or objectively, the implications of mixed intention and the legal effect of acting for an improper purpose.   

Lydia Seymour (Outer Temple Chambers), ‘The Courts, Non-Discrimination and Systemic Change in UK Public Sector Pension Schemes’
The wholesale changes made to UK public sector pension schemes in 2014 and 2015 have meant that most public sector workers were moved into new, significantly less generous, pension schemes.  But some workers (broadly those who were within 10 years of retirement) have been allowed to stay in the old, more generous schemes.  It was identified at the time of the reforms that this would mean that younger workers were being less favourably treated on the grounds of age.  In some schemes – those in sectors in which women and BME workers had been traditionally under-represented - it was also noted that focussing financial protection on older members would also disadvantage women and BME workers.

However, despite this, the government went ahead with the reforms and has argued that any less favourable treatment is justified by their belief that there is a moral case for the protection of those closest to retirement from any negative impact on the pension they were expecting.  This justification argument has been challenged by a number of groups of public sector workers (most notably judges, firefighters and police officers) and the matter was heard over five days in the Court of Appeal in November 2018.  A decision is awaited, but whatever the outcome, the case raises important principles of both discrimination law and constitutional principle – most notably, what is the role of the court in circumstances in which discrimination is alleged in relation to large, systemic change of this sort imposed by government?  Should it (as contended for by the government) accord particular deference to the government in a case such as this, and adopt a ‘light touch’, review-style, approach?  Or are the principles of non-discrimination to be applied in a consistent way regardless of the context, with government being held to the same standard as a private employer and the court undertaking its own careful scrutiny of the justification defence?

Brian Sloan (Cambridge), ‘ “Pension Freedoms”, Social Care and Inheritance’
Unlike healthcare, generally provided free at the point of delivery in England, social care for elderly and disabled people who need help with everyday tasks is the subject of a significant means test. Local authorities responsible for a person’s care will undertake a detailed financial assessment of a person’s capital and income in order to determine her liability to pay for her own care, using an extremely complex set of regulations made under the Care Act 2014. The system is very controversial because it can prejudice family members’ ability to inherit a care recipient’s property, including the family home.

Pension income from a traditional annuity is generally treated as relevant income for the purposes of a local authority’s assessment. ‘Pension freedoms’, however, whereby people were given greater freedom to withdraw money from their pension pots and decide how for themselves how to fund later life etc, complicate this position. Exercising such freedoms could cause property derived from a pension scheme to be treated as capital instead, and gifting such capital could even trigger anti-avoidance action by a local authority. The aim of this paper is to explore the potential implications of ‘pension freedoms’ for liability to fund social care, including the knock-on effect on survivors’ inheritance rights and expectations. It will evaluate the particular risks and potentially unexpected consequences of exercising ‘pension freedoms’ for the increasing numbers of people likely to require social care.

Debbie Webb (Willis Towers Watson), Funding of defined benefit pension schemes in the 21st century - where should the balance lie between legislation, Pensions Regulator prescription and flexibility?
While UK defined benefit pension schemes have been in existence for most of the last century, until the introduction of the Pensions Act 1995 there was no legally enforceable minimum standard for the level of assets that a pension trust was required to hold, except for any specific provisions in the scheme’s own trust documents. The first attempt at such a standard, introduced by the 1995 Act, was the Minimum Funding Requirement (MFR), a prescriptive set of rules that very quickly proved inadequate for the task. This development, together with intense debate at the time within the actuarial profession about the extent to which the principles of financial economics should be reflected in funding valuations, resulted in its replacement with the Scheme Specific Funding requirements under Part 3 of the Pensions Act 2004, which came into effect for valuations from September 2005 onwards. These developments, the establishment of the Pension Protection Fund and the significant changes to the Employer Debt Regulations that came into force around the same time, changed the way that both employers and trustees viewed pension scheme funding, in many cases giving trustees a strong role in the process that had hitherto been denied them, as well as introducing a new player, the Pensions Regulator (TPR).

The cornerstone of the current Scheme Specific Funding regime is flexibility, with trustees and employers left to agree funding arrangements themselves, policed by TPR. The regime came into challenge after the financial crisis of 2008/9 for being too hard on employers, eventually leading to the Regulator being given a new more ‘employer friendly’ objective in 2013. More recently the pendulum has swung back the other way, with the recent Pensions White Paper confirming that a new Code of Funding will be developed by TPR, with more detailed prescription about what is “prudent” and “appropriate” and adding a new requirement to define and fund for a Long Term Objective (LTO). Some of the Regulator’s thinking in this regard was trailed in their recent annual funding statement. A consultation by TPR on the new Code is expected imminently, with a new “comply or explain” approach to setting funding standards already having been trailed.

This paper provides an overview of how actuarial thinking and legal requirements have developed over time in respect of UK funded defined benefit pension schemes. It will further explore why there is not only one correct answer to the question of how the liabilities of the scheme should be valued.  The arguments for and against a more prescriptive, “comply and explain” regime will be set out, together with consideration of whether “comply or explain” is the right way forward. Finally, it will conclude with some thoughts on whether there is a viable way forward for the minority of schemes that choose to remain open not just for future accrual but also to new entrants.

Hilary Woodward and Rhys Taylor, Pensions Advisory Group, ‘Till Pensions Do Us Part: The Pension Advisory Group and the Search for Consensus on Divorce’
In 2017 there were just over 100,000 divorces in England and Wales. Only about one third of this number over the same period included a financial remedy order. Although the percentage of financial remedy orders which includes an order for pension sharing or attachment is increasing, it still only represents approximately 16% of the total number of divorces. The rest are either dealt with by offsetting the pension against another asset such as the family home, or probably not considered at all.  Empirical and anecdotal evidence indicates that the quality of pension disclosure on divorce is poor, that practice in this complex field has been operating unsatisfactorily with an increasing number of negligence claims, and that it is producing a large proportion of potentially unfair outcomes, particularly for divorcing wives.

It is against this background that the Pension Advisory Group (PAG) was convened in mid-2017, with the purpose of producing a good practice guide to pensions on divorce. It is a multi-disciplinary group of judges, academics, actuaries, pension advisors, a mediator, family solicitors, family barristers, and pensions lawyers, all with a range of experience in the field of pensions on divorce. The project is partially funded by the Nuffield Foundation and supported by the President of the Family Division and the Family Justice Council. PAG has consulted widely on the issues to be addressed, published two draft reports, held focus groups with family lawyers and pension experts, conducted an on-line survey and invited feedback at numerous presentations around the country. Achieving a consensus within PAG on key issues such as when an expert report might be needed and whether methods and assumptions can be standardised has been challenging. The aim is to produce the professional guide by the end of June 2019 and a much-simplified guide for the divorcing public and non-specialists by the end of September. This paper will describe the issues which presented the most difficulty and the process by which consensus was reached (or not, as the case may be).

 

 

About the Speakers

Dr. Sinéad Agnew is a lecturer in law at UCL, where she teaches property law and trusts.  Her research interests lie in the area of private law, with a particular focus on equity and trusts, and, more generally, the role of conscience in private law doctrine.  She also enjoys looking at private law questions from a historical perspective.  Sinéad is also a barrister (currently non-practising) and an associate member of Serle Court.  Before becoming an academic, she practised law for a decade, initially from Serle Court and, subsequently, as a litigation lawyer in Jersey, specialising in fraud and asset tracing, high value trusts disputes and advising trustees on all legal aspects of trusts administration, as well as insolvency, multi-jurisdictional enforcement proceedings, and multi-jurisdictional probate disputes.  She is a founding member and former governor of the Institute of Law in Jersey.

Dr Alysia Blackham is an Associate Professor and Discovery Early Career Researcher at Melbourne Law School at the University of Melbourne. Her research concentrates on the consequences of demographic ageing for workplaces. Alysia’s monograph, entitled Extending Working Life for Older Workers: Age Discrimination Law, Policy and Practice, was published by Hart Publishing in 2016, and awarded second prize in the UK Society of Legal Scholars’ Peter Birks Prizes for Outstanding Legal Scholarship in 2017. In 2017 Alysia commenced the project DE170100228 ‘Addressing Age Discrimination in Employment’, funded by the Australian Research Council as part of the Discovery Early Career Researcher scheme.

Alan Bogg
Alan joined the Bristol Law School in 2017 as Professor of Labour Law. Previously he was Professor of Labour Law in the University of Oxford and a fellow of Hertford College, Oxford. He has a broad teaching and research interest in the general fields of labour, employment and work laws.  His current research projects are examining freedom of association; common law fundamental rights; the role of criminalisation in work relations; and the future of the social democratic constitution.  His monograph, The Democratic Aspects of Trade Union Recognition, was awarded the Peter Birks Prize for Outstanding Legal Scholarship in 2010. In 2014, he was awarded the Philip Leverhulme Prize for Law, in recognition of his international profile and achievements as a scholar of labour law. His work has been cited in the United Kingdom Supreme Court, the Supreme Court of Canada, and the European Court of Justice

Paul Brice leads Grant Thornton’s Pensions Advisory business, working extensively on employer covenant-related matters.  Prior to joining Grant Thornton, Paul worked for more than 7 years at The Railways Pension Scheme; and before that at KPMG for 23 years, 11 of which he was a Partner undertaking both Corporate Finance and Restructuring work. Paul became active in employer covenant advisory work shortly after the introduction of the Scheme Specific Funding regime in 2004/5.  In 2012, he set up the Employer Covenant Working Group – a professional body for senior employer covenant advisory practitioners from a range of member firms and remains an active member of the Group.  He was a member of EIOPA’s Occupational Pensions Stakeholder Group from 2016-2018; and contributed from an employer covenant perspective to the Integrated Risk Management Working Group of the Institute and Faculty of Actuaries. Paul is a Chartered Accountant, Chartered Tax Adviser and Member of the Chartered Institute of Securities and Investment.  He holds a BA from University College London; a Post-Graduate Diploma in Financial Strategy and MSc in Taxation, both from the University of Oxford; and is presently in the early stages of studying for a part-time DPhil in a tax-related subject at the Faculty of Law at the University of Oxford

Charles Cameron is head of Pensions and Employment Practice at Slaughter and May. He advises on a broad range of advisory and transactional pensions and employment matters, with a particular focus on the industrial and manufacturing sectors.  He has extensive experience advising on benefit change exercises and innovative de-risking strategies.    His clients include Walmart, INEOS, Tata Steel (British Steel Pension Scheme), Akzo Nobel (ICI), United Utilities, BT Pension Scheme Trustees, Caterpillar Pension Plan Trustees and SCA Pension Trustees.  Charles is a past chairman of the Legislative and Parliamentary Sub-Committee of the Association of Pension Lawyers.  He is also a contributor to Weinberg & Blank on Takeovers and Mergers.

Bernard Casey
Bernard Casey was formerly principal economist at the OECD.  He also lectured in economics at the LSE and the University of Warwick, and worked at Wissenschftszentrum Berlin.

Paul S Davies is Professor of Commercial Law at UCL. He was previously a Fellow of Gonville and Caius College, Cambridge and St Catherine's College, Oxford. Paul has also worked at the Law Commission. Paul has written widely on commercial law and private law more generally. He is the author of Accessory Liability (Hart Publishing, 2015; revised paperback edition, 2017), which won the main Inner Temple Book Prize in 2018, JC Smith’s The Law of Contract (2nd ed, OUP, 2018), and a co-author of Equity and Trusts: Text, Cases and Materials (2nd ed, OUP, 2016 (with Graham Virgo)). Paul is one of the editors of Snell’s Equity and has recently joined the editorial team of Chitty on Contracts. He is also a Barrister of Lincoln’s Inn and an Associate Member of Maitland Chambers.

M Scott Donald PhD CFA is Director of the Centre for Law, Markets and Regulation, UNSW Law where he teaches corporate and trusts law.  Prior to joining UNSW Law, Scott worked in a variety of senior roles for Russell Investment Group (1994-2005, 2006-2009), including Director of Research, Director of Product Development (EMEA) and Director of Fiduciary Research.  Before that he was an investment analyst with Ipac Securities (1986-1994).  In that time Scott has advised a wide range of public and private sector organisations in Australia and overseas on issues associated with the regulation, governance and investment of superannuation and investment funds.  He was a consultant to the Super System Review (the 'Cooper Review') that reported in June 2010 and a member of the Stronger Super Governance Consultative Working Group in 2011.  He has published widely in the academic, professional and industry press on issues related to regulation, law, governance and investment strategy.  His most recent book was a collection of essays edited with Dr Lisa Butler Beatty on behalf of the Law Council of Australia: The evolving role of trust in superannuation, (Federation Press, 2017).

Mark Freedland
Professor Mark Freedland QC (Hon), FBA, now Emeritus Professor of Employment Law in the University of Oxford, continues to pursue his researches and his writing in the fields of Employment Law and Public Law as an Emeritus Research Fellow of St John’s College Oxford and an Honorary Professor in the Faculty of Laws of University College London.  The main focus of his writings has been the personal work contract and the personal work relation; from that and other legal starting-points, he has had a long-term interest in the law of occupational pension schemes.’

Jo Grady
Jo is Senior Lecturer in Employment Relations and a member of the Work, Employment Relations Research Centre (WOERRC) located within the Management School at Sheffield University. Jo's work examines (both empirically and theoretically) the power asymmetry that underpins the employment relationship, and the contrasting and conflicting priorities and interests. Specifically it examines the political economy and public policy associated with employment relations, how labour market reform shapes the experience of work for so many, and the dynamics of collective resistance to this issue by trade unions and workers. In addition, her research analyses the ways in which financialization of the employment relationship plays out levels by focusing on how precariousness (which is institutionalised by legislation) makes citizens more amenable to low pay via activation labour market policies and labour market deregulation more generally. It also examines how regulation (informed by neoliberal ideology) has helped produce an environment where organisations appropriate value from their staff as a contemporary strategy, particularly via company pension schemes.

Jessica Hudson is a Senior Lecturer at UNSW Law where she researches and teaches in multiple areas of private law, including equity, trusts, remedies and unjust enrichment. Prior to lecturing, Jessica was a solicitor at King & Wood Mallesons in Dispute Resolution, specialising in financial services litigation, acting for public and private companies, and investment and retail banks in litigation and mediations. Jessica worked as a Tipstaff to the Honourable Justice Julie Ward when Her Honour was a Judge in the Equity Division of the Supreme Court of New South Wales and is a graduate of the University of Oxford (BCL, Distinction) and UNSW (BA, LLB, First Class Honours).

Karen Johnston is the Deputy Pensions Ombudsman and Deputy Pension Protection Fund Ombudsman and was appointed on 1 July 2015. She is also a member of the Regulatory Decisions Committee of the Financial Conduct Authority. Karen was formerly the Strategy lawyer for the Pensions Regulator, where she also held a lead role on the auto-enrolment programme. Prior to 2004 she worked as a consumer legal adviser at the Office of Fair Trading following a career at the independent bar. She is also Vice Chair of Brighton and Hove Citizens Advice.

James Kolaczkowski is a Lecturer in the Law School at the University of the West of England.  He is a qualified solicitor with a specific interest in commercial and pensions law.  James trained in London and specialised in pensions whilst practising at a commercial firm based in Bristol.
James has completed PhD research which considered the role of the European Union in Occupational Pensions in the UK and has research interests across pensions law and policy.  He is particularly interested in the perspectives of the numerous stakeholders involved with occupational pensions.

Deborah Mabbett is Professor of Public Policy at Birkbeck and a member of the Joint Expert Panel examining the operation of the Universities Superannuation Scheme, USS.

Sandy Maudgil began work as a pension lawyer at Slaughter and May in 1998, where he has been a partner since 2006.  He advises on a wide range of pensions and employment matters, with a particular focus on high profile, high value pensions matters for both trustee and employer clients.  His clients include the BT Pension Scheme Trustees, Royal Mail Group, GlaxoSmithKline PLC and HM Treasury.  He is a member of the Legislative and Parliamentary Sub-Committee of the Association of Pension Lawyers.  Since 2012 has been at the forefront of legal thinking in the UK regarding collective DC schemes, having spoken at various conferences on the topic since 2014 including among others conferences hosted by the TUC, by the Association of Pension Lawyers and by the National Association of Pension Funds (now the PLSA).

Charles Mitchell has been a Professor of Law at UCL Faculty of Laws since 2010. His main research interests and teaching activities are in the law of trusts, the law of unjust enrichment and modern legal history. In 2017 he was elected a Fellow of the British Academy and in 2019 he was appointed an honorary QC.

David Pollard is a barrister practising from Wilberforce Chambers in Lincoln’s Inn in London.  He previously practised as a solicitor and was (for 25 years) a partner in Freshfields, practising mainly pensions, employment and insolvency law.  David practiced with Freshfields for three years in Singapore in the 1980s. David was chair of the Association of Pension Lawyers (APL) from 2001 to 2003. David is an editor of the journal ‘Trust Law International’. David’s books include: The Law of Pension Trusts (Oxford University Press, 2013); Corporate Insolvency: Pension Rights and Corporate Insolvency: Employment Rights (6th eds, December 2016, Bloomsbury Professional);  Employment Law and Pensions (Bloomsbury Professional, 2016); and Freshfields on Corporate Pensions Law (editor) – annual editions from 2012 to 2015 (Bloomsbury Professional).

Debora Price is Professor of Social Gerontology at The University of Manchester,  where I direct MICRA, the Manchester Institute for Collaborative Research on Ageing, and I am currently the President of the British Society of Gerontology.  After reading Law at Trinity Hall, Cambridge in the mid-1980s, I qualified as a barrister and practised law in the Middle Temple, ultimately a founding member of Coram Chambers specialising in family law. I was drawn into academia by concern over pensioner poverty as a result of social changes in family life and my PhD research focused on the impact of family change on pension scheme participation. Since then, my research has centred on finance over the life course, especially pensions and poverty in late life, financial services for an ageing society, household money, and the financial consequences of cohabitation and separation. I am often involved in analysis and commentary on UK pension reform, pensioner poverty, and social policy for an ageing society.

Claire Ryan is Legal Director at The Pensions Ombudsman and also a member of the Executive Board. Claire leads the legal team which advises on casework, legal appeals, policy and pensions legislation. She joined The Pensions Ombudsman in 1999 as a lawyer and then moved to Head of Legal before being appointed as Legal Director in February 2016.  Prior to joining The Pensions Ombudsman, Claire trained as a solicitor at Nabarro’s (now CMS) and then went to Freshfields Bruckhaus Deringer to work in the employment pensions and benefits department where she primarily specialised in pensions law.

Lord Sales studied law at Cambridge and Oxford Universities and was called to the Bar in 1985. He practised in the fields of Chancery and commercial law until being appointed First Treasury Junior Counsel (Common Law) (the so-called ‘Treasury Devil’) in 1997. He served in that position until being appointed as a High Court Judge in the Chancery Division in 2008, after becoming a QC in 2006. He was a judge of the Patents Court and of the Competition Appeals Tribunal and was Vice-President of the Investigatory Powers Tribunal. Between 2009-2014 he was the head of the Boundary Commission for England. In 2014 he was appointed to the Court of Appeal and in January 2019 to the UK Supreme Court.

Daniel Schaffer is partner in the Pensions & Employment department of Slaughter and May.  Dan qualified as a solicitor specialising in pensions in 1990 and has more than 20 years of partner experience.  His practice covers general advisory, transactional and contentious matters advising employers, trustees and insurers.  He advised on the pensions aspects of electricity (1990) and railway privatisation (1993) and formulated the successful argument that persuaded the CA in IBM v Dalgleish (2017).  He also advised on the original design of pensionable pay capping and was then instructed in SWT v Wightman (1998) and on split pensions (Foster Wheeler v Hanley (2009)).  His experience includes funding and covenant solutions, benefit redesign, buy-outs and Pensions Regulator enforcement action. Clients include EON, EDF, Derwent, General Motors, Innogy, ITV, Legal & General, Lloyds Register, Marsh, Marks & Spencer, PA Consulting, Peugeot, Standard Life Aberdeen, Uniper, Whitbread, Railways Pension Scheme, ConocoPhillips scheme, Jacobs Engineering scheme, Monsanto scheme, Phillips 66 scheme, Severn Trent schemes and the Sky DC Plan. Dan has given post-graduate lectures on pensions in Oxford and Cambridge universities and still does a small amount of Trusts teaching at Merton College, Oxford.  He chairs the Advisory board of Bristol University Law School.   

Lydia Seymour is a barrister at Outer Temple Chambers specialising in pensions and employment law.  She has been recognised by the legal directories as a leading junior since 2005 and is listed in both the employment and pensions categories. Lydia has a particular interest in the areas of crossover between pensions and employment law and has appeared in a number of leading cases in that area including IBM v Dalgleish and the recent firefighters’ discrimination claim challenging the 2015 public sector pension reforms.  Lydia sat as a fee paid Employment Judge for 12 years and is a contributing editor to Tottel’s Discrimination Law and Butterworths’ Civil Court Practice.

Brian Sloan is a Fellow in Law at Robinson College Cambridge, where he teaches Equity, Family Law and Land Law, and an Affiliated Lecturer at the Faculty of Law, University of Cambridge, where he lectures on the Law of Succession.  He is the author of Informal Carers and Private Law (Hart, 2013), a winner of the University of Cambridge’s Yorke Prize, andBorkowski’s Law of Succession (3rd edn OUP, 2017). He is also the editor of Spaces of Care (with Gelsthorpe and Mody) and Landmark Cases in Succession Law (both Hart, forthcoming 2019).  While an Early Career Fellow at the Centre for Research in the Arts, Social Sciences and Humanities (CRASSH) in Cambridge in 2015 he began a project on “Adult Social Care and Property Rights", which produced a number of articles and book chapters.  Brian also publishes on Property Law and Family Law more generally.

Rhys Taylor is a barrister at The 36 Group (London) and 30 Park Place (Cardiff). He was called to the bar in 1996 and his practice focuses on the financial consequences of family breakdown. Rhys has a particular expertise and interest in Pensions on Divorce. With Hilary Woodward of Cardiff University, he published “Apples or Pears, Pension Offsetting on Divorce” ([2015] Fam Law 1429), which was delivered at the 2015 National Family Law Bar Association conference. In 2017 he published “Pensions on Divorce, Another Witches’ Brew” ([2017] Fam Law 163). In 2018 he co-authored “Pensions on Divorce, A Practitioner’s Handbook” (Hay, Hess, Lockett and Taylor 3rd edition, LexisNexis). Rhys is also a member of the Pension Advisory Group, an interdisciplinary panel, comprising judges, experts, academics and practitioners, which is part funded by the Nuffield Foundation and supported by the President of the Family Division. Its report is due in 2019 and will be published by the Family Justice Council. Rhys has also regularly lectured the Judicial College on the subject of pensions on divorce. Rhys is an arbitrator and mediator. His other area of specialist interest are cohabitation disputes brought under the Trusts of Land and Appointment of Trustees Act 1996.

Prof. Dr. H. van Meerten is a professor International Pension Law at Utrecht University and a Dutch bar admitted lawyer. He deals with EU and Dutch Pension Law. Hans has extensive knowledge of the various aspects of EU-legislation and processes. One of his special areas of expertise is the EU legislation regarding pensions and the cross-border activities of financial institutions. He focusses mainly on the IORP II and the PEPP.

Debbie Webb is a scheme actuary at Willis Towers Watson, which she joined in 1997. Prior to that she worked at a South African insurer and large South African actuarial consultancy, as well as spending a short time working for a South African investment bank. Her main focus is actuarial advice to trustees of very large defined benefit pension schemes. She has been involved in all aspects of actuarial pension advice including scheme-specific valuations, benefit design reviews, scheme mergers, bulk transfers, employer debt calculations and associated arrangements. She has experience in setting and reviewing long term objectives and working closely with investment advisers on integrated approaches to investment, covenant and funding. While her primary focus is on Trustee work, she also provides advice to some corporate sponsors of DB pension schemes. Her clients include the Railways Pension Scheme, Pearson, Barclays, National Grid and Du Pont. She has for a number of years been a member of the Pensions Consultation Group of the Actuarial Profession, involved in preparing the Profession’s responses to a wide range of pensions-related consultations. She is also a member of the Pensions Board of the Institute and Faculty of Actuaries.

Hilary Woodward is a former family solicitor and mediator practising in London and Bristol between 1982 and 2011. Since 2002 she has been involved in various empirical research projects relating to family law, with Bristol, Exeter and Cardiff Universities, currently as an Honorary Research Associate with Cardiff School of Law and Politics. She is the author with Mark Sefton of Pensions on Divorce: an empirical study, funded by the Nuffield Foundation and the co-author with Rhys Taylor of “Apples or Pears, Pension Offsetting on Divorce” ([2015] Fam Law 1429), which was delivered at the 2015 National Family Law Bar Association conference. She is the ‘CEO’ of the Pension Advisory Group, an interdisciplinary group comprising judges, experts, academics and practitioners, who are aiming to produce a good practice guide to pensions on divorce for professionals and non-professionals in 2019.

 

Fees and Booking Information

Full conference with Dinner:
    Standard Fee = £195
    Academic / Public Sector fee: £110
    Other Student (Non-UCL): £70

Two Day Conference only
    Standard Fee = £150
    Academic / Public Sector fee: £65
    Other Student (Non-UCL): £25

One Day Conference only
    Standard Fee = £100
    Academic / Public Sector fee: £40
    Other Student (Non-UCL): £15

Payment can be made using a credit or debit card.
Book at: https://ucl-pensions-conference-2019.eventbrite.co.uk

 

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