Natwest Group Pension Fund · CAS-101153-R1R9

CAS-101153-R1R9

Ombudsman’s Determination Applicant Mr E

Scheme NatWest Group Pension Fund (the Fund)

Respondents NatWest Pension Trustee Limited (the Trustee) Willis Towers Watson (WTW)

Outcome

Complaint summary Mr E has complained that when he tried to claim benefits from the Fund following the death of his father, Mr N, the Trustee and WTW provided him with misleading and conflicting information, and incorrectly refused to pay him a pension.

Mr E wants to be awarded a pension and be given a payment for the distress and inconvenience he has suffered.

Background information, including submissions from the parties Mr E is represented by his mother, Miss N.

Mr N had two other children besides Mr E. Mr N and Miss N were no longer in a relationship.

The sections of the Fund’s Definitive Trust Deed dated 13 April 2021 (the Rules), relevant to this complaint, are set out in the Appendix.

The Member Guide for the Fund, dated July 2020, states the following in the section ‘Protecting your loved ones’:

“Who can receive your Fund benefits? The table below provides a summary of who can receive your Fund benefits.”

1 CAS-101153-R1R9 “Your child(ren) if 18 or younger (or 23 or younger if pursuing a full-time education). In exceptional circumstances (i.e. disability) the Trustee may continue to pay a child’s pension beyond age 23.”

Mr N joined the National Westminster Bank Widows’ & Orphans’ Fund (the W&O Fund) in February 1990, and he became a deferred member in December 1993. The W&O Fund subsequently merged with the Fund, a defined benefit pension arrangement.

Mr E’s eighteenth birthday was in November 2020.

In August 2021, Mr N died. Mr E has said that he was Mr N’s next of kin and a beneficiary in his Will.

WTW has said the following:-

• Following the notification of Mr N’s death, on 10 November and 8 December 2021, it contacted the solicitor of Mr N’s estate (the Estate) about potential beneficiaries of Mr N’s benefits within the Fund.

• On 22 December 2021, the Estate’s solicitor provided limited information about Mr N’s potential beneficiaries.

• After contacting the Estate’s solicitor on 30 December 2021 and 11 February 2022, it was told that the solicitor was no longer dealing with the Estate.

• On 7 July 2022, it was contacted by another firm of solicitors on behalf of the Estate. WTW wrote to the new solicitor, but as it did not receive a response, it assumed that Mr N had no beneficiaries.

• Mr E first made contact with WTW in August 2022. As Mr E’s two siblings were under the age of 18 on the date of Mr N’s death, they were entitled to receive a child’s allowance up to the age 23, if in full-time education. As Mr E was over the age of 18, he was not automatically entitled to receive a child’s allowance.

On 6 September 2022, Mr E informed WTW that he had autism.

WTW has said that on 7 September 2022, as Mr E was aged between 18 and 23 on the date of Mr N’s death, it asked him if he was in full-time education.

On 9 September 2022, WTW requested medical evidence of Mr E’s autism. Mr E subsequently provided evidence, dated 2015, and evidence that Mr N had been making monthly maintenance payments to Miss N, in respect of Mr E.

In September and November 2022, Mr E complained to WTW with the following points:-

• He had not received a formal response or acknowledgement of his complaint.

• He was constantly being given false and contradictory information.

2 CAS-101153-R1R9 • WTW told him that he needed to be under the age of 18 to receive a child’s pension, but the Member Guide had stated 18 or younger. WTW also referred to him needing to be under the age of 23, but did not tell him that this was only in exceptional circumstances. He had then advised WTW of his autism and provided evidence that had been requested.

• He was aware that the Estate’s solicitor had been trying to contact WTW for over 12 months but had not received a response, and WTW had tried not to communicate with him or his siblings. He asked why this was the case.

• The situation was disgraceful and unacceptable on all levels.

• He asked for a copy of the Rules.

On 7 November 2022, WTW emailed Mr E with the following points:-

• It apologised for causing confusion and appearing intrusive.

• A dependant’s pension was not an automatic right, and only payable at the discretion of the Trustee, subject to receiving evidence. This was unlike a child’s allowance, which was payable automatically to a child under the age of 18.

• He did not qualify for a child’s allowance as he was no longer in full-time education and his age was 18 years 9 months on the date of Mr N’s death.

• To be awarded a dependant’s pension, he needed to provide medical evidence to show that he had been dependent on Mr N, and that his condition prevented him from being able to look after himself.

• The medical evidence he provided was insufficient, as it was too old. The Rules stated that the evidence must be relevant as at the date of the member’s death. This did not require a full medical assessment. A letter from his doctor would be sufficient.

Later the same day, Mr E emailed WTW with the following points:-

• There was nothing to support the requirement of WTW’s new demands.

• The website stated that the policy for paying a child’s pension was 18 and younger. He understood this to mean that anyone who was already 18 was entitled to a pension.

• He did not believe that a dependant’s pension would be payable for life, which WTW had stated it was, as a child’s allowance was only payable to age 23, if in full-time education.

• He asked where in WTW’s policy it stated what it accepted as disabled or mentally impaired.

• He was appalled at WTW’s lack of understanding of disability. 3 CAS-101153-R1R9 • The Equality Act 2010 stated that someone was disabled if they had a physical or mental impairment that had a 'substantial' and 'long-term' negative effect on their ability to do normal daily activities.

• He believed that the request for further medical evidence was an act of disability discrimination.

• He asked for a response from the Trustee.

• He asked for a copy of the Rules.

WTW has accepted that the wording provided to Mr E about children’s allowances between the ages of 18 and 23 was confusing.

On 23 December 2022, the Trustee responded to Mr E’s complaint under the Fund’s Internal Dispute Resolution Procedure (IDRP) with the following points:-

• It was required to pay benefits in accordance with the Rules.

• WTW had not made it clear to him that the Trustee had a discretion to award a survivor’s pension in cases that might not otherwise qualify. WTW also had not made it sufficiently clear what was required for the Trustee to make a discretionary decision, or that consent would be required from the Fund’s sponsoring employer (the Bank).

• Under the Rules, there were two types of survivor’s pension that could potentially apply to Mr E:

o A children’s allowance was automatically payable to a child of a deceased member where the child was under the age of 18 or under the age of 23 if in full-time education or vocational training. Mr E did not meet these criteria so he was not automatically entitled to a children's allowance. A children's allowance could be granted to children over the age of 18 who were not in full-time education or vocational training if the Trustee, at its discretion, considered there to be special circumstances. This could include cases where the child was disabled. The Trustee had no obligation to exercise discretion, so even if someone did provide evidence of special circumstances, they did not have an automatic entitlement to a children’s allowance. Based on the information provided, the Trustee did not conclude that special circumstances applied in Mr E’s case. The Trustee could reconsider his case if he was able to provide, for example:

 more recent evidence from his doctor or other medical professional stating the nature of his disability, how long it was likely to last and if it was likely to worsen, and the impact it had on his everyday activities; or

4 CAS-101153-R1R9  evidence of the impact of his disability on his ability to work and live independently, such as confirmation that he was receiving ongoing financial support, such as a Personal Independence Payment or other disability related financial support.

o A dependant’s pension could be granted if the Trustee, at its discretion, and with the consent of the Bank, considered the claimant to have been financially dependent or interdependent on the deceased member at the time of death. The Trustee had no obligation to exercise this discretion but would take into account all relevant information in deciding whether to award a dependant’s pension.

o Based on the information provided, the Trustee did not conclude that Mr E was financially dependent or interdependent on Mr N. The Trustee could reconsider his case if he was able to provide, for example:

 evidence that Mr N had been making regular payments directly to Mr E, or that Mr N had been paying his expenses by providing his bank statements or copies of regular bills showing that Mr N had paid them; or

 evidence of the purpose of the monthly payments that Mr N had been making to Miss N. Evidence could include, for example, a formal court order mandating the payments or informal written communications between Mr N and Miss N that evidenced the fact that the payments were intended for Mr E’s maintenance; or

 evidence that Mr E was dependent on financial support from Mr N. This could include evidence that Mr E was unable to work or that he had no other sources of substantive income, for example, a medical letter which indicated that his condition prevented him from working, or evidence that he had been unsuccessful in seeking employment.

• It did not agree to his request to receive a survivor’s pension. However, if he provided further evidence, this would be considered.

• It accepted that there were some delays in responding to Mr E’s queries, in particular, to his email in August 2022, and that information at times was incomplete and potentially misleading. This had resulted in Mr E spending more time to resolve the matter.

• The Equality Act 2010 broadly provided that disability discrimination occurred where a person had been treated unfavourably as a consequence of their disability and that such treatment was not a proportionate means of achieving a legitimate aim. It did not agree that he had experienced discrimination on grounds of disability. The request for additional information regarding his disability did not amount to unfavourable treatment, and this was a standard request that the Fund made in cases where a person was requesting a survivor's pension on the basis that special circumstances applied. 5 CAS-101153-R1R9 • It offered him £500 for the distress and inconvenience caused to him.

During December 2022 and January 2023, Mr E emailed WTW on several occasions. He asked for his complaint to be passed to the Bank for its consideration.

On 10 January 2023, the Trustee emailed Mr E and said that it could not escalate his complaint any further but would consider any further evidence he provided. If it did decide that he was entitled to a pension, it would be £959.04 per annum.

On 26 January 2023, WTW emailed Mr E a copy of the Fund’s IDRP and said that the Bank would not be replying to his complaint as the decision about his pension was the Trustee’s responsibility.

On 27 January 2023, Mr E requested a copy of the Rules.

On the same day, WTW emailed Mr E with the following points:-

• The Fund was independent from the Bank and his complaint was a matter solely for the Trustee to consider.

• It provided a link to the Rules and said that Mr N was a member of Schedule 03 of the Fund, which was the “NWB Pension Fund” Schedule in the Rules. The rules for Schedule 03 started on page 96.

During January and February 2023, Mr E emailed WTW on several occasions and queried details in the Rules.

Following the complaint being referred to The Pensions Ombudsman (TPO), the Trustee and Mr E made further submissions that have been summarised below.

The Trustee’s further submissions:-

• It felt that Mr E had mischaracterised the Trustee’s communications about his autism diagnosis. Mr E seemed to suggest that the Trustee had made unfair requests for evidence and was using this to avoid awarding a pension that he would otherwise have been entitled to. However, he was not entitled to a child’s or dependant’s pension as a right, irrespective of any evidence that proved his disability. The Trustee did not have to award a pension on receipt of such evidence.

• The Trustee had seen no conclusive evidence that Mr E was dependent on Mr N, despite giving Mr E ample opportunity to do so.

• Many people with autism pursued successful careers and lived financially independent lives, so an autism diagnosis alone was not evidence that Mr E was dependent on Mr N at the time of his death.

• The evidence regarding payments made by Mr N to Miss N was not accompanied by any information that confirmed the payments were made for the maintenance of Mr E. 6 CAS-101153-R1R9 • It was not the Trustee’s intention to stop potential beneficiaries from receiving benefits. It considered all claims seriously.

• It was not correct to say that Mr E was entitled to benefits if he was disabled.

• As it relied on electronic records, the Fund did not typically hold documentation showing a member’s enrolment into a particular scheme, so it could not provide evidence that Mr N had enrolled into the W&O Fund.

• It was not aware of any delays in communications between WTW and the Estate’s solicitor.

Mr E’s further submissions:-

• Miss N had sent at least 100 emails to WTW to try to obtain accurate information. She had asked to speak to the Trustee but had been refused. She had complained to the Bank but did not receive a reply.

• He had received many emails that showed contradictory information, lack of clarity around the interpretation of the pension, and which failed to address his basic questions. On some occasions, WTW took four to six weeks to respond to his requests.

• Evidence of financial support by Mr N, including Miss N’s bank statements, had been insufficient for the Trustee. There was no written agreement between Mr N and Miss N for the payments, as they had a good relationship.

• Evidence of his autism and dyspraxia diagnosis had also not been sufficient. This was the first time he mentioned dyspraxia in his submission to TPO. The Trustee claimed that he was not disabled or his condition did not satisfy the Trustee’s definition of disability, and that he may have recovered since his diagnosis.

• The Trustee was not able to show where its requirements was set out in the Rules.

• The situation had been extremely hard, stressful and distressing for him.

Adjudicator’s Opinion

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Miss N did not accept the Adjudicator’s Opinion and the complaint was passed to me to consider. Miss N’s comments are summarised below:-

• The situation had been extremely poorly handled. WTW had wanted the matter to go away from the outset, had refused to communicate, and failed to provide accurate information. The pension documents Mr E received, either from WTW’s website, or the old documentation that referred to Mr N’s pension, were inaccurate and misleading.

• WTW failed to communicate with two firms of solicitors about Mr N’s pension. It was only after Miss N became aware of the situation that WTW replied.

• Autism was not a condition that changed over time and was classed as a disability. She quoted a definition of autism from the National Autistic Society:

“Autism is a lifelong development disability which affects how people communicate and interact with the world.”

• The medical report that was provided to the Trustee was prepared after months of assessment with various senior medical professionals. Failing to understand Mr E’s condition was discrimination.

• The Fund’s documents did not stipulate any criteria in respect of proving disability. It was only after Mr E provided evidence, that the Trustee set criteria.

• The only way to address the Trustee’s requirements was for Mr E to have a full medical assessment, which he could not afford to pay for privately or would take a long time waiting for the National Health Service.

• Mr N had paid maintenance for Mr E, despite Mr E being over the age of 18.

• The Trustee’s decision was made to avoid having to pay a claim from the Fund. She believed that Mr N was entitled to receive four years of pension.

I have carefully considered Miss N’s comments, but they do not change the outcome, I agree with the Adjudicator’s Opinion.

10 CAS-101153-R1R9 Ombudsman’s decision

Mr E submitted two pieces of evidence to the Trustee: verification that Mr N made regular payments to Miss N, and a medical assessment of his autism. However, in determining Mr E’s complaint, I can only consider whether the Trustee weighed all relevant evidence and made a properly informed decision. If properly made, I cannot substitute the decision with one of my own. While I have great sympathy for Mr E’s position, I am satisfied that the Trustee considered and weighed all the relevant evidence it was given and allowed Mr E opportunity to provide further evidence. On this basis, I find that the Trustee made a properly informed decision not to uphold Mr E’s claim.

I agree with the Adjudicator’s Opinion that some of WTW’s actions while dealing with Mr E’s claim amount to maladministration. However, in order for me to determine an award higher than £500 for the distress and inconvenience he suffered, I would need to see evidence that errors were ‘serious’ – for example, they occurred on several occasions and had a lasting effect over a prolonged period of time, or WTW was slow in putting matters right. Those circumstances are not apparent in this case. Rather, in my view, the distress and inconvenience suffered by Mr E falls into the ‘significant’ category – and so the offer of £500 already made by the Trustee fits with the award that I would have made. If Mr E wishes to accept this award, he should contact the Trustee directly.

11 CAS-101153-R1R9 I do not uphold Mr E’s complaint.

Anthony Arter CBE

Deputy Pensions Ombudsman 4 December 2024

12 CAS-101153-R1R9 Appendix – extracts from the NatWest Group Pension Fund’s Definitive Trust Deed Appendix A – Categories of Membership, pages 1 and 2

13 CAS-101153-R1R9 Schedule 3 page 73

14 CAS-101153-R1R9 Schedule 3, page 48

15 CAS-101153-R1R9 Schedule 3, page 50

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