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Trustee Solutions Limited v Dubery (High Court) - 21 June 2006
The defendant (D) was a member of the scheme which had been subject to a winding up. D attained the age of 60 before the commencement of the winding up. The scheme rules allowed the trustees to amend the scheme by deed or "any writing effected under hand". In May 1992, in response to the Barber decision, the trustees sent an unsigned memorandum to all members of the scheme stating that pension benefits would be based on retirement at the same age for both men and women.
In July 1992, the employer made a written announcement, again unsigned, to female members of the scheme to the effect that their "normal retiring date" would, with effect from 1 October 1991, be the day before their 65th birthday. The "Barber window" was the period between 17 May 1990 and the operative date of any valid amendment to a pension scheme.
The trustees sought the court's ruling on the following questions:
(1) Whether the rules of the scheme had been validly amended?
HELD: No. A requirement that an amendment to a pension scheme be made "by any writing effected under hand" required such amendment to have been made in writing and signed.
(2) If not, whether the principle of "group estoppel" applied?
HELD: No. In order for an estoppel to have arisen in the context of a pension scheme it had to be shown that all the members of the scheme had shared the same erroneous assumption in relation to the rules of the scheme. The evidence presented did not meet this requirement.
(3) Whether a male member of the scheme, who had accrued pensionable service within a "Barber window" and who had attained the age of 60 before the commencement of the winding up of the scheme, had an entitlement that fell within the Pensions Act 1995 section 73(3)(b).
HELD: Yes. The meaning of "where a person's entitlement to payment of pension.. has arisen", in section 73(3)(b) of the Pensions Act 1995 encompassed the situation where a scheme member had accrued pension rights and was entitled to demand immediate payment. Therefore, the entitlement to pension of members, such as D, who had the right to retire for part of their service and who had attained the age of 60 at the date of winding up of the scheme fell within section 73(3)(b).