Superannuation Appeals Board reasonably relied on Crown Law advice

Social Services and Care of Children
Ombudsmen Act 1975
Related legislation:
Government Superannuation Fund Act 1956
Legislation display text:
Ombudsmen Act 1975; Government Superannuation Fund Act 1956
Sir Brian Elwood
Case number(s):
Issue date:

Failure to give reasons for decision—reasons given in counsel’s written submissions adopted by Board—disclosure of reasons distinguished from merits of decision—Government Superannuation Appeals Board—Ombudsmen Act 1975—Government Superannuation Fund Act 1956, s 12(A)(2)      

The complainant contributed to a compulsory superannuation scheme under the Government Superannuation Fund Act 1956 for nine years. His period of contributory service was broken, but was resumed some years later. In the intervening time, the Act had been amended several times. The complainant received actuarial advice that it would be financially advantageous if he were able to re-join the scheme on the terms and conditions he had previously enjoyed, rather than joining the new voluntary scheme which had since replaced it. However, when he applied, the Superintendent took the view that the legislation had removed the complainant’s right to re-enter the fund and have his additional years of service included in the relevant calculation of retirement benefits. The complainant appealed this ruling to the Government Superannuation Appeals Board. The Board declined the appeal, and advised the complainant of its decision in the following terms:      

‘The decision that was made was to uphold the decision of the Superintendent, consequently your appeal has been declined. Please see the attached outcome report.’      

Counsel for the complainant then wrote to the Board seeking written reasons for its decision. The Chairman responded, advising:      

‘Generally speaking the Board was more persuaded by the submissions of the Crown Law Office on behalf of the Superintendent. In particular the Board was mindful of the arguments put forward in paragraphs 4,5,9,10,14,17 and 19 of [the] submission.’      

The complainant was not satisfied that this response complied with the Board’s obligations, pursuant to s 12A (2) of the Act, to give reasons for its decisions. Inquiries were made of the Chairman of the Board who provided a further explanation stating that:

‘The Board then considered the evidence which it had read and heard. The Board was unanimous that the legal argument advanced by Crown Law on behalf of the Superintendent was the correct interpretation of the relevant provisions of the Act. The Board did not consider it necessary to cite or summarise in its decision the arguments put forward by counsel for each side, as these had all been submitted in writing. The Board therefore considered that it was sufficient only to refer to the submission by Crown Law with which it agreed, and considered required no elaboration or modification by the Board.’      

The Chairman thus made it clear that the Board had in effect adopted the reasoning advanced by the Crown Law Office as its own. The reasons for its decision were those reasons set out in the Crown Law Office submissions.     

The text of the Chairman’s explanation was conveyed to the complainant. The complainant still held concerns about the merits of the reasons given by the Board. However as these concerns centred on the Board’s assessment of legal issues, they could not be resolved by an Ombudsman. It is the function of a Court to determine questions of law. As the Chairman’s response fully disclosed the reasons for the Board’s decision, the investigation was discontinued.

This case note is published under the authority of the Ombudsmen Rules 1989. It sets out an Ombudsman’s view on the facts of a particular case. It should not be taken as establishing any legal precedent that would bind an Ombudsman in future.

Last updated: