Discretionary decisions—what must pension trustees do?
Produced in partnership with Oliver Hilton of Radcliffe Chambers

The following Pensions practice note produced in partnership with Oliver Hilton of Radcliffe Chambers provides comprehensive and up to date legal information covering:

  • Discretionary decisions—what must pension trustees do?
  • Types of powers
  • Administrative v dispositive powers
  • Imperative v permissive powers
  • Powers involving trustee judgment
  • Who may exercise a power?
  • Key principles to apply when making discretionary decisions
  • The scheme rules and law
  • Duty of consideration
  • The time for exercising a power
  • More...

Discretionary decisions—what must pension trustees do?

THIS PRACTICE NOTE APPLIES TO TRUSTEES OF ALL PENSION SCHEMES

A power is a legal authority conferred on a person to deal with, and dispose of, property which is not their own.

Most trust-based occupational pension schemes confer powers on their trustees. Statute also confers powers on trustees.

A power will give the trustees a choice or discretion. In relation to trusts, powers are generally either administrative or dispositive. Dispositive powers that are commonly found in pension schemes concern the provisions relating to early retirement, ill-health early retirement, death-in-service benefits, increase in benefits (including annual increases to pensions in payment and revaluations of deferred pensions), accepting transfers into the scheme and a surplus on winding-up. Schemes also usually include powers of amendment relating to the trust deed and rules.

Sometime the powers are vested unilaterally in the trustee. Other powers are held jointly with the employer, or subject to the employer’s consent. There are also express and statutory limitations and restrictions on the exercise of powers, and schemes often prescribe the manner in which certain powers may be exercised.

Discretionary decisions can be controversial, as there is often a tension between member’s expectations on the one hand, and the fiscal strain they may cause the principal employer on the other. It is not a surprise therefore that they are sometimes the subject of challenges

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