Workplace Pension in UK Law

But even if it could, their Lordships are satisfied that it could not be amended in order to confer any interest in the trust fund on the Company. This was expressly prohibited by clause 4 of the Trust Deed. The 1994 amendments included a purported amendment to the Trust Deed to remove this limitation, but this was plainly invalid. The trustees could not achieve by two steps what they could not achieve by one.

They are (a) a clear representation or promise made by the defendant upon which it is reasonably foreseeable that the claimant will act, (b) an act on the part of the claimant which was reasonably taken in reliance upon the representation or promise, and (c) after the act has been taken, the claimant being able to show that he will suffer detriment if the defendant is not held to the representation or promise.

In the courts below the Board of Management's power to make a retrospective amendment was dealt with as a separate topic. In the amendment of pension scheme rules, back-dating (that is, deeming a change of the rules to have been made at a date earlier than the date of the actual change) cannot be used as a device so as to rewrite history or validate an amendment which would otherwise be beyond the scope of the power of amendment.

Here it seems clear to me that the trustees exercised their discretion to amend the rule in the way contained in the amendment. They were obliged, having done so under clause 16, to make an appropriate declaration in a particular form. They could have been compelled on behalf of the members, who are not volunteers, to specifically perform their exercise of the power. Not to make a valid declaration was a breach of the terms of the definitive deed.

A decision to have a pension scheme and the consequential decisions about the structure and design of the scheme are matters for the employer, or at least matters primarily for the employer. If the scheme is to have a pension trust fund there will be trustees, but the design of the scheme is still a matter for the employer, not for the trustees. This is not to say that the trustees are compelled to accept the employer's design.

My own view is that members' interests and expectations may be of relevance when considering whether an employer has acted irrationally or perversely. On the other hand, it is important to remember that powers such as that at issue in the present case are not fiduciary. As a result, the donee of the power is, as Mr Tennet pointed out, entitled to have regard to his own interests when making decisions (see paragraphs 121 and 124 above).

First, it seems to me that as Mr Green submits, the service to which the Scheme relates is all in the past. After 31 May 2001, the accrual of benefits takes place in the Merchant Navy Ratings Pension Plan. It is service to which the Scheme "related" in the past tense. The benefits accrued as at 31 May 2001 when they ceased to accrue years of service under the Scheme and the right to revaluation at a particular level is inherent in the accrued benefit as at that date.