England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
ON APPEAL FROM
THE PENSIONS OMBUDSMAN

		Royal Courts of Justice, Rolls Building Fetter Lane, London, EC4A 1NL
		19/12/2014

Mr Justice Nugee :

Introduction

1. This is an appeal by Mr Norman Webber ("Mr Webber") against a determination by the Deputy Pensions Ombudsman, Jane Irvine ("the DPO"), dismissing a complaint by Mr Webber against the Department for Education ("the DfE") in relation to the recovery of an overpayment of his pension under the Teachers' Pension Scheme ("the Teachers' Scheme" or "the Scheme").
2. This is in fact the second appeal by Mr Webber in relation to his complaint. The DPO initially issued a Determination dismissing Mr Webber's complaint dated 26 June 2012 ("the First Determination"). Mr Webber appealed to the High Court. His appeal was heard by Asplin J on 22 November 2012 and she directed that the matter be remitted to the Ombudsman for reconsideration. The result of that was that the DPO, after reconsideration, issued a second determination ("the Second Determination") dated 24 January 2014. Mr Webber appealed again to the High Court by Appellant's Notice dated 14 February 2014, and that is the appeal heard by me. References below to numbers in square brackets are, unless otherwise indicated, references to paragraphs of the Second Determination.
3. Under s. 151(4) of the Pension Schemes Act 1993, an appeal on a point of law lies to the High Court against a determination of the Pensions Ombudsman at the instance of, among others, the complainant. There is now a requirement (in CPR r 52.21(a)) to obtain the permission of the High Court to bring such an appeal, but this provision was not in force when Mr Webber brought his appeal.
4. It is to be noted that an appeal lies only on a point of law. The well-established consequence of that is that an appellant cannot challenge the factual findings of the decision-maker unless there is either no evidence to support a factual conclusion, or the conclusion is one that could not reasonably be entertained. This is the case not only with primary facts (what happened ? who knew what ?) but also with value judgments based on those primary facts (was something reasonable ?). None of this is controversial, but it is important to bear in mind that the Court's role on appeal is a limited one.

Relevant scheme provisions

5. The Teachers' Scheme is a statutory occupational pension scheme established under the Superannuation Act 1972. The terms of the Scheme are set out in secondary legislation, as amended or replaced from time to time. At the date at which Mr Webber retired (in 1997) the relevant regulations were the Teachers' Superannuation (Consolidation) Regulations 1988 (SI 1988/1652) ("the 1988 Regulations"). These were shortly after replaced by the Teachers' Pension Regulations 1997 (SI 1997/3001) ("the 1997 Regulations"), which came into force on 3 February 1998 and remained in force until 1 September 2010 when they were in turn replaced by the Teachers' Pension Regulations 2010 (SI 2010/990) ("the 2010 Regulations").
6. Each version of the regulations contained a provision headed "Abatement of retirement pension during further employment" (regulation E14 in each of the 1988 and 1997 Regulations, regulation 64 in the 2010 Regulations). The text has been amended from time to time but the general principle has remained the same, namely in broad summary that if a person has become entitled to a teacher's pension and then goes back to work as a teacher, his pension is liable to be reduced, if necessary to nil, so as to ensure that the salary from his new employment and his pension together do not exceed the salary he had in his last employment, adjusted for inflation.
7. Regulation H3 of the 1988 and 1997 Regulations was headed "Records and information". At the time of Mr Webber's retirement in 1997 this imposed certain obligations on employers to keep records and make returns to the Secretary of State in relation to teachers in their employment, but did not impose any obligation on the teachers unless asked. In particular H3(1) required the employer to keep a record for each financial year of:

"(a) the rate of the person's salary

…

(f) the period during which he was in employment"

and H3(2) provided:

"Employers are, within such reasonable time as he may require, to make to the Secretary of State such reports and returns, and to give him such information about persons who are or have been in pensionable employment, as he may reasonably require for the purposes of his functions under these Regulations; and such persons, and their personal representatives, are to give him such information and to produce such documents as he may reasonably require for those purposes."

8. Regulation H3 was amended with effect from 1 November 1998. This amended H3(2) by adding "persons to whom regulation E14(1) applies or has applied" to the persons about whom the Secretary of State could require information; and added a specific obligation in H3(4) as follows:

"…a person who has become entitled to payment of a teacher's pension and who takes up employment such as is described in regulation E14(1) shall

(a) within 14 days of taking up such employment notify the Secretary of State giving details of the salary in the employment; and

(b) within 14 days of any change in salary notify the Secretary of State."

Similar provision was made by regulation 132(3) of the 2010 Regulations.

Background Facts

9. This account of the facts is taken from the Second Determination, together with such other material as was before me. In many cases I have not in fact seen the underlying documents so I can only refer to the Determinations for what they say.
10. Mr Webber was born on 10 February 1947. He was a teacher and member of the Teachers' Scheme. When he turned 50 in February 1997 he applied for, and was granted, early retirement from the Scheme with effect from 1 April 1997. To do this he had to fill in an application form which contained a statement that:

"Subsequent teaching employment may result in a reduction or suspension of your pension"

and a declaration that:

"I will inform the Pensioner Services Section at the TPA if I become employed in education at any time during my retirement."

11. The Teacher's Scheme is administered by Teachers' Pensions ("TP"). TP wrote to Mr Webber on 19 March 1997 to tell him how much his pension would be. I have not seen the letter and there is no statement in either Determination of what Mr Webber's annual pension was. He told me however that it was about £3,500 to £4,000 pa.
12. Enclosed with the letter was a booklet, known as Leaflet 192, issued by TP about returning to work after premature retirement. It has gone through a number of iterations, and the version enclosed was the most recent one dating from October 1996. I have not seen this document but the DPO records that it included the following statements:

(1) Under the heading "What to do if you return to work":

"If you want to return to work after you retire, or if you have already done so, you should let Customer Direct Pensioner Section know at once, even if you think the work will not affect your pension..."

(2) Under the heading "What happens if you do not tell us about returning to work":

"If you return to work but do not tell us your pension will continue to be paid in full. When we do find out (from you, from your employer, from HM Inspector of Taxes or from the DSS) we will work out how the work has affected your pension. We will then take action to get back any amounts which you receive but were not entitled to."

(3) Under the heading "Salary of reference":

"Your salary of reference is:

The highest salary you have received during your last three years of teaching or

The highest annual rate you receive during the three years before you were entitled to your pension.

Customer Direct Pensioner Section uses your salary of reference to work out how much you can earn before it affects your pension. Your salary of reference is index-linked each year at the same percentage as your pension. This means that the money you earn after you retire can increase without affecting your pension."

(4) Under the heading "Reducing your pension":

"We will reduce your pension if:

you work full time and your salary rate and annual pension exceed the index linked salary of reference…

If you are re-employed full time, we will decide how much to reduce your pension when you first return to work. This amount will not change if you have a general salary increase. But if your salary increases, for example because you have been promoted or have received an allowance for special responsibilities, we will work out the new calculation."

13. Mr Webber received and read the leaflet. He understood it to mean that if he returned to work he had to tell TP when he first commenced work. (It is to be noted that this was not then in fact a specific requirement under the 1988 Regulations, although it was something he had agreed to do when applying for his pension.)
14. In December 2000 Mr Webber was asked by the Head of Maths at Wellfield School in County Durham if he would be interested in teaching full-time. He telephoned TP on 28 or 29 May 2001. There is no note of the conversation but Mr Webber says that he was told something to the effect that if his pay remained within the current banding his pension would not be affected. He told me that the woman he spoke to thought he would be all right on full pay, which was at the top of the main scale at about £24,000 pa.
15. The telephone call prompted TP to send Mr Webber a letter dated 29 May 2001. This enclosed a further version of Leaflet 192 dating from May 2001, and a form of Certificate of Re-employment.
16. I have not seen the May 2001 version of Leaflet 192, but the DPO cited from it as follows (at [5]):

"Salary of Reference is the highest annual salary received in the last three year period of pensionable employment prior to retirement. It is notified to the teacher upon retirement….The salary of reference is increased each April in line with the cost of living.

Regulations provide that if a teacher undertakes re-employment of a type which may affect their pension (as described above) in any tax year… [sic – presumably it then said that the pension might be abated]. Abatement works by calculating the number of days the pension can be paid in the tax year before the salary of reference is exceeded. The pension is then suspended for the rest of the tax year. A new assessment is done in each tax year…

Teachers' Pensions (Pensioner Administration Team) must be notified of the re-employment within 14 days of its commencement.

We cannot emphasise too strongly the importance of notifying Teachers' Pensions promptly

…It is equally important that the teacher and his employer notify Teachers' Pensions that the re-employment has ended…

The teacher must also inform the Pensioner Administration Team if:

…

- The salary rate / hourly rate / daily rate changes.

Note: …

If the Pensioner Administration Team are not informed of re-employment or any change which causes an overpayment of annual pension, the teacher must repay that sum promptly…

... the annual pension position will be re-assessed at the start of the next tax year and the process will be repeated for as long as the re-employment continues or if circumstances change.

… It [presumably the Certificate of Re-employment] should be used by the teacher and employer to notify Teachers' Pensions of the re-employment. Instructions for completion are given on the Certificate."

17. The covering letter of 29 May 2001 said:

"If you are in teaching employment please complete Part A of the enclosed Certificate of Re-employment and forward the entire certificate to your employer for completion and submission to Pensioner Services…If, upon assessment, it is found that your retirement income will exceed your indexed salary of reference, we will calculate and inform you of the date at which your pension will be suspended… The pension(s) will be reinstated at the beginning of the following tax year and the whole process is then repeated each tax year, for as long as your employment continues…

If your circumstances change during a tax year, please call our Pensioner Contact Centre on 01325 7455547 and a new Certificate of re-employment will be issued. If your employment continues into the new tax year, you should also contact us again in April of that tax year and a new certificate specific to that assessment period will be issued."

18. Mr Webber took up full-time employment with effect from 1 September 2001. His employer was Durham County Council ("Durham"). He completed the Certificate of re-employment and the Certificate (completed by him and Durham) was received by TP on 11 September 2001.
19. On 18 September 2001 TP received an "EFE" from Mr Webber. This appears to refer to "Elected Further Employment" which as I understand it means that Mr Webber elected that his further employment should be pensionable.
20. On 22 October 2001 TP wrote to Mr Webber. The letter enclosed a further copy of Leaflet 192 and another Certificate of re-employment, and said:

"You will be pleased to learn that your annual pension is not affected, based on earnings of £14,491.00 for the period 6 April 2001 to 5 April 2002. Your earnings limit for this tax year is £20,837.10 and does not take account of mandatory compensation and/or any discretionary enhancement payments. However please note that if you attain 55 during this tax year your annual earnings limit will be reduced. If your earnings during this tax year do not exceed that figure, your annual pension will remain unaffected.

Should your circumstances change (i.e. 55^th birthday, change of post, increase in hours or annual salary), please complete the enclosed Certificate of re-employment and forward the whole Certificate to your employer for completion and submission to Pensioner Services. Failure to do so may result in an overpayment of annual pension which you will have to repay promptly."

Mr Webber told the DPO that he did not receive this letter until the week beginning 11 February 2002, just after he turned 55 on 10 February 2002. Again I have not seen a copy of the letter, but only the citations from it included in the Determinations.

21. Mr Webber accepted that he read one of the versions of Leaflet 192 sent to him in May 2001 and in this letter but did not recall which one.
22. On 19 April 2004 Mr Webber wrote to TP informing them of his new address and that he had married on 7 December 2002.
23. On 19 January 2009 TP wrote to Mr Webber and said that they had recently received information from Durham about his employment with them. They asked him to complete a Certificate of re-employment.
24. On 19 February 2009 Mr Webber returned the completed Certificate of re-employment. In a covering letter he said he was very anxious about the contents as he believed that everything was fine

"and that you knew all about my current employment from the outset."

25. The next Mr Webber heard was when he received a letter from TP dated 24 November 2009. This informed him that his earnings and pension had exceeded his index linked salary of reference in each tax year from 2002/3 to 2008/9 and so his pension should have been abated. The gross overpayments amounted to £37,572.30, which following a tax adjustment of £1,289.77 left a net overpayment of £36,282.53.
26. On 1 December 2009 Mr Webber wrote a letter expressing his shock at receiving a demand for £36,000 out of the blue and saying that he did his best to follow the rules he was told about.
27. In July 2010 Mr Webber applied for further retirement benefits in respect of his additional service up to 31 August 2010. I infer from this that he ceased working at the end of that month. In October 2010 TP wrote to him with details of his further benefits, saying among other things that the net amount outstanding (there given as £37,259.21) had been set off against a lump sum of £10,672.45 due to him in respect of his additional retirement benefits. In August 2011 DfE wrote to Mr Webber to the effect that it was common practice for a scheme member to use a retirement lump sum to offset an amount owed but this would only be done where the member did not object, and if he preferred to receive the lump sum he could do so. It would however mean that his debt would rise again to £37,259.21 "which will be pursued robustly."
28. Mr Webber relied on expenditure which he said he would not have undertaken but for the overpayment. In particular in February 2002 he travelled to the Ukraine to meet his future wife whom he married in December 2002; he told the DPO he would not have felt himself in a position to marry her without the extra income. In July 2002 he moved house and took on a larger mortgage. He also relied on various items of expenditure which he incurred on his wife and her daughter including such matters as flights to Russia to visit his wife's mother and attend her father's and mother's funerals and various other costs which it is not necessary to set out in detail.

The DPO's First Determination

29. Mr Webber complained to the Ombudsman. The DPO issued the First Determination in relation to the complaint on 26 June 2012. It is not necessary to detail it all, because it was considered by Asplin J in her judgment: Webber v Department for Education, Teacher's Pensions [2012] EWHC 4225 (Ch). In summary the DPO rejected the complaint because (in the words of her short reasons):

"Mr Webber ought reasonably to have been aware that he was required to complete a Certificate of re-employment in each tax year if he had received an increase in salary."

This is an accurate summary of her findings of fact: see at [55] of the First Determination where she concluded that:

"In view of the forms, which Mr Webber saw and presumably read before signing them, the information in the literature and correspondence given to him when he was granted premature retirement in April 1997 and also when he was re-employed in 2001, in my judgment, Mr Webber ought reasonably to have been aware that he was required to complete a Certificate of re-employment in each tax year if he had received an increase in his salary and not, as he suggests, only when he was first re-employed."

30. Mr Webber did not dispute that an overpayment had occurred but relied on a change of position defence, his case being that he had made a number of substantial one off and repeated purchases and financial commitments on the basis that he was receiving both his salary and his pension.
31. The DPO rejected this defence as follows (at [61]):

"Insofar as the expenditure identified by Mr Webber is concerned, I am not persuaded that he would not in any event have incurred this expenditure given the family connection and circumstances. As I have found that Mr Webber ought reasonably to have been aware that he needed to take action each year his argument for a defence to an action of recovery fails on the grounds that he was, or ought to have been, aware he was being overpaid."

Asplin J's judgment

32. Mr Webber appealed to the High Court. The appeal came before Asplin J on 22 November 2012. She allowed the appeal and remitted the complaint to the Ombudsman for reconsideration. Her full reasons for doing so appear from her judgment, but they can be summarised as being:

(1) The Determination contained insufficient reasoning to support the conclusion reached in [61] in relation to the expenditure: see judgment at [14].

(2) There was a non sequitur in the DPO's (first alternative) conclusion that in fact Mr Webber was aware that he was being overpaid and insufficient grounds set out for a reasonable Ombudsman to have concluded that: see her judgment at [16]. If it was based on her findings as to the telephone conversation in late May 2001, the DPO reached no conclusion in relation to that: see judgment at [20].

(3) As to her (second alternative) conclusion that Mr Webber ought to have been aware that he was being overpaid, if this was merely a reference to negligence then it would appear that this would not suffice to defeat a change of position defence. What was required to defeat the defence was at least some degree of "sharp practice", but it was certainly not made clear whether the DPO had reached a conclusion on sharp practice: see judgment at [21].

The DPO's Second Determination

33. It is necessary to analyse the DPO's findings of fact in the Second Determination with some care. The DPO first considered whether to hold an oral hearing as Mr Webber had asked her to, but decided not to [25].
34. She then considered whether the information provided by TP to Mr Webber was not clear, leading him to misunderstand what was required of him. She found that the initial information given to Mr Webber (on his application for early retirement and in a letter sent to him with details of his pension) was ample to inform him that he was obliged to notify TP if he was re-employed, which is precisely what he did [29]. She said that she could understand how the October 1996 version of Leaflet 192 might have led Mr Webber to believe that it was unnecessary to take any (further) action if the only change in the salary he received was as a result of a general increase [30]. She accepted that in the telephone call on 28 or 29 May 2001 the person Mr Webber spoke to might have been guided by the October 1996 version of Leaflet 192 and concluded that Mr Webber was more likely than not given incorrect or misleading information in that telephone call [33]-[34].
35. She then considered the letter of 29 May 2001 [35]. She said that it contained the correct information. She cited the relevant sentence as follows:

"If your employment continues into the next tax year, you should also contact us again in April of that tax year and a new certificate specific to that assessment period will be issued."

and said that she did not find that misleading at all, and that Mr Webber himself now accepted that

"a close reading of the letter dated 29 May 2001 states that he ought to have contacted the pension centre in April of the new tax year."

Before me Mr Webber said that this should have referred to "a close reading of that sentence in the letter dated 29 May 2001" but I do not myself see that this makes any significant difference. In either case, Mr Webber was not accepting that he had read it and understood it in that way at the time. He told me that he understood it to mean that if your income remained in one band you did not need to do anything; he read the sentence beginning "If your employment continues…" with the previous sentence beginning "If your circumstances change during a tax year…"

36. On the basis of the May 2001 letter the DPO concluded:

"I therefore find that although, on the balance of probabilities, Mr Webber was given misleading information during a telephone call to TP on 28 or 29 May 2001 he was, within a very short time, in possession of correct information but he failed to heed the information he was given."

I will call this finding A. It is not as clear as it might be. To say that someone is "in possession of" correct information is not to say that he has actually read and understood what he was told; and to say that someone "failed to heed" information might mean no more than that he did not pay attention to what he was being told, although I think it would more naturally tend to suggest that he was choosing to ignore it despite knowing what it said.

37. The DPO then turned to the October 2001 letter [37]. She accepted that it did not in terms repeat the statement that he ought to contact the pension centre in April of each year if still employed, but cited from it as follows:

"Should your circumstances change (i.e. 55^th birthday, change of post, increase in hours or annual salary), please complete the enclosed Certificate of re-employment and forward the whole Certificate to your employer for completion and submission to Pensioner Services. Failure to do so may result in an overpayment of annual pension which you will have to repay promptly."

Mr Webber's explanation for failing to take any action was because the letter arrived after his 55^th birthday. The DPO said she failed to understand this [37]. The letter clearly stated that a Certificate of re-employment needed to be completed at age 55, and since it was dated some months before he reached 55, she could not understand why he took no action when he did eventually receive it. She then concluded:

"In my judgment, Mr Webber knew that he was required to complete a Certificate of re-employment and chose to ignore the instruction given to him in the letter of 22 October 2001."

I will call this finding B. Unlike finding A I do not think there is here any ambiguity at all. It seems to me plain that the DPO was not saying that Mr Webber ought to have appreciated the need to complete a certificate but that she drew the inference that he did actually appreciate that and consciously chose to do nothing about it.

38. She then referred to the fact that Mr Webber said that he did not understand how the salary of reference was calculated [38]. Having said that all the editions of Leaflet 192 clearly set out that the salary of reference was the highest salary in the last 3 years of pensionable employment, which she herself considered quite straightforward, she said that Mr Webber did not need to calculate it himself but to provide the information to TP for them to carry out the calculation; and in any event if he did not understand she would have expected him to contact TP to find out. The DPO does not here advert to the fact, nowhere mentioned in the Second Determination but referred to in the First Determination, that he was told that his Salary of Reference was £25,697.57 for 2001/2002 and "provided with the amount of the TP share of his pension in order that he could calculate his earnings margin."
39. She then concluded [39]:

"I do not think that it can be said that the information provided by TP was misleading. Given the importance of the matter, it was for Mr Webber to check the position with TP to resolve any uncertainty or inconsistencies, rather than assume there was no requirement for him to provide information. For these reasons I consider that Mr Webber knew that he was required to provide TP with information about his salary each tax year following his re-employment but failed to take the appropriate action."

I will call this finding C. As with finding B, it is a finding of actual knowledge, in this case of the requirement to contact TP each tax year.

40. She then considered whether Mr Webber knew he was being overpaid. Her conclusions should be quoted in full [40]:

"As to whether Mr Webber knew that he was being overpaid or ought to have been aware in the sense that he was guilty of sharp practice or, put another way, behaving in a way that was dishonest but not illegal, is in effect the same question. In my judgment Mr Webber's failure to take the action he ought to have done cannot be regarded as a genuine oversight, because he had been provided with sufficient transparent information such that he ought reasonably to have known that he was required to provide TP with information about his salary each tax year following his re-employment. Although I accept that Mr Webber may not have known that an overpayment was definitely building up, or, if he was so aware, how much the overpayment amounted to, he must have been aware that there was a possibility that this could happen yet he still failed to furnish TP with the necessary information. If an action is disingenuous it is reasonable to regard it as sharp practice, although in this instance I would not go so far as to suggest that. However I am persuaded that at the very least Mr Webber "turned a blind eye", for whatever reason, in the hope that if there was an overpayment building up that would go unnoticed."

I will call this finding D.

41. She then dealt with two defences put forward by Mr Webber. One was a partial defence based on the Limitation Act 1980. Under s. 32 of the Act time does not start running in the case of an action for relief from the consequences of a mistake until the claimant has discovered the mistake or "could with reasonable diligence have discovered it", and Mr Webber's case was that TP could have discovered the overpayment with reasonable diligence and so could not recover in respect of overpayments received more than 6 years ago. The DPO rejected this defence holding that TP had acted reasonably and could not reasonably have discovered the mistake earlier than it did [45], saying

"Reasonable diligence means just that and does not require that exceptional or excessive measures be taken."

42. The other defence put forward by Mr Webber was change of position. Here she found at [49]:

"Mr Webber's decision to marry was not action he took in reliance on maladministration as he clearly acted on his own volition and therefore even if I had found maladministration, which I have not, there would be no causal link. Insofar as the remaining expenditure is concerned as I have already found that Mr Webber was aware, or ought to have been aware, strictly the defence of change of position falls away."

Nevertheless she considered the remaining payments as directed; she found in some cases that there was no causal link, and in others that she was unable to reach a safe conclusion in the absence of documentary evidence.

Change of position defence – oral hearing

43. Mr Webber's appeal against this decision is based on a number of grounds. Although not argued first before me, it is convenient to take first the question of change of position.
44. Mr Webber challenged the DPO's factual findings which I have labelled A to D. The first point which he took in his written submissions was that it was wrong of the DPO not to hold an oral hearing. I in fact heard no argument on this, from either party, but Mr Davey referred me to a letter to the Court from the Ombudsman's office drawing attention to the fact that under s. 149(4) of the Pension Schemes Act 1993, subject to any provision made by the rules, the procedure for conducting an investigation shall be such as the Ombudsman considers appropriate in the circumstances of the case; and that the rules (the Personal and Occupational Pension Schemes (Pensions Ombudsman) (Procedure) Rules 1995 SI 1995/1053) contain nothing which constrains the discretion given to the Ombudsman. The letter also indicated that oral hearings are very rarely held, with only 7 hearings in the past 7 years (as compared with 954 completed investigations as recorded in the Ombudsman's last Annual Report for the business year 2012/13).
45. In the present case Mr Webber did request an oral hearing when the matter was being reconsidered by the DPO, but the DPO decided not to hold one on the basis that she considered that she could properly determine the case on the basis of the detailed written representations and the documentation submitted. She said [25]:

"Bearing in mind the passage of time since the events in question occurred and the tendency for memories to fade and for positions to harden, I did not consider that it would assist me, in reaching my determination, to hold an oral hearing in order to hear repeated orally the evidence submitted and the submissions made. I considered that a far more reliable basis on which to reach my conclusion was on the basis of the papers alone."

46. To those used to the court system, which has long placed a particularly high value on oral evidence tested by cross-examination, some of these statements may seem surprising, but the Pensions Ombudsman is not a court, and his procedures are not trials but investigations in which he can pursue lines of inquiry until he is satisfied that he has sufficient information to resolve the complaint. I am wary of laying down any hard and fast rules as to when it is or is not appropriate for the Ombudsman to hold oral hearings, particularly in the absence of any argument on the point. It seems to me that it is prima facie a matter for the Ombudsman (or in this case the DPO) to assess whether and to what extent an oral hearing is necessary either to enable the investigation to be satisfactorily completed or out of fairness, and that such decisions can only be challenged on appeal on the familiar basis that they exceeded the generous ambit within which reasonable disagreement is possible.
47. In the present case, as the DPO recorded at [23], she had a large number of submissions from Mr Webber and cannot have been in any doubt as to what his case was: I consider that it was well within her discretion to conclude that inviting him to repeat his case orally would not materially add either to her understanding of it, or to her ability to assess it fairly. If the Ombudsman is not going to have an oral hearing, he should no doubt be careful only to reject an explanation given by an individual (whether complainant or respondent) as to his own understanding, knowledge, intentions or motives if satisfied that he can safely do so on the basis of the documents alone; and one of the consequences of the Ombudsman not having heard from the individual in person is that his decision to reject such an explanation can be more readily scrutinised on appeal to see if it was a factual conclusion that was open to the Ombudsman.
48. None of this however means that the DPO's decision not to hold an oral hearing in the present case was a wrong exercise of her discretion such as to make her decision flawed. What it means is that the Court should assess carefully whether the conclusions that she came to were ones that were properly open to her in the light of the documentary evidence. I therefore do not accept this ground of appeal.

Change of position defence – challenge to factual findings

49. The DPO's key factual finding for the purposes of the change of position defence is that I have labelled D. Mr Webber criticises this finding of fact on a number of grounds. He first submits that the DPO had decided that he was aware that he was overpaid but turned a blind eye in the hope that the overpayment would go unnoticed. This seems to me to be a misreading of her carefully nuanced findings which are to the effect that although Mr Webber may not have known that he was definitely being overpaid, he must have been aware that there was a possibility that this could happen, and turned a blind eye in the hope that if there was an overpayment it would go unnoticed.
50. Mr Webber then argues that the DPO's conclusion is based on the notion that failing to take an action in 2002 that would have allowed him to know that an overpayment could occur is sufficient to bar the defence, and says that this involves a prediction as to the future as there would be no overpayment unless the status quo continued. If he had died or changed jobs or reduced his hours or was dismissed there might not be any overpayment.
51. I do not think this point assists Mr Webber. If one assumes at this stage of the argument that Mr Webber appreciated on receipt of the letter of 22 October 2001 that there might be an overpayment if he continued in the same employment in the next tax year, it does not seem to me of any relevance that such overpayment would not occur if he died, or changed or lost his job or reduced his hours. None of these things happened and in fact he did continue in the same employment for the next tax year and indeed until 2009/10.
52. One then comes to the crucial finding D in [40] that Mr Webber knew there was a possibility of an overpayment, but did nothing about it in the hope that if there was an overpayment it would go unnoticed. Having heard from Mr Webber in person I have considered anxiously if the DPO was unfair to him in this conclusion, and that it was one that could not reasonably be derived from the documents. However I consider that this was a conclusion she was entitled to come to.
53. First, there is the letter of 29 May 2001. As the DPO says this fairly clearly says that if employment continues into the next tax year, "you should also contact us again in April". Mr Webber says that this was not how he read the letter. He read that sentence as being dependent on the previous sentence "If your circumstances change during a tax year…" This is a grammatically possible reading, although on analysis it does not really make much sense: it would mean that if a teacher were re-employed during tax year 1 (eg full-time), and there were no change of circumstances, TP would not need to be told the employment was continuing into tax year 2, whereas if a teacher were re-employed in tax year 1, and then there were a change of circumstances (eg a move from part-time to full-time working) during the year, TP would need to be told once during tax year 1 when the change of circumstances occurred, and then again at the beginning of tax year 2. But leaving this illogicality aside, the letter on any view does not clearly say that if employment continues into the tax year, TP will automatically calculate the position and the teacher does not need to do anything. Any fair reading of the letter would at best leave the teacher in some doubt as to whether it was necessary to contact TP in April or not.
54. Second there is the reference in the letter of 22 October 2001 to completing a new certificate "should your circumstances change (ie 55^th birthday...)." Mr Webber had already been told in the letter of 29 May 2001 that he should contact TP if circumstances changed during a tax year, and he is now being given a specific example. He said that because the letter arrived after his birthday he ignored the instruction relating to being 55, not noticing the date of the letter. The DPO obviously found it difficult to accept this explanation; and it is understandable why. Although Mr Webber only received the letter in February 2002, he had completed the Certificate of re-employment in September 2001. He hears nothing for over 5 months. When he does receive a response, it refers to his 55^th birthday as an example of a change of circumstances which requires him to send back the enclosed Certificate. He has just turned 55, several months after his initial application. It does seem surprising that he should assume that the reference to turning 55 did not apply to him. He told me that he did not understand the significance of turning 55 in this context (Mr Davey explained it as being the age at which the Pensions (Increase) Act 1971 applied, which would have an effect on the earnings he could earn without hitting the salary of reference). At the very least in these circumstances one would have thought that Mr Webber would be left in doubt as to whether the requirement to notify TP if he turned 55 applied to him, something that would have been very easy to check.
55. Third, TP in its letter of 22 October 2001 notified him that his "earnings limit" for the tax year 2001/02 was £20,837.10 (apparently, although the facts are not clearly set out, on the basis of his salary of reference for that year being £25,697.57). The phrase "earnings limit" is not explained but the natural meaning of it is the amount of earnings he could earn from re-employment as a teacher during the tax year before his pension suffered an abatement (which would suggest that Mr Webber's uprated pension was then slightly under £5,000). TP had also calculated his salary for the tax year 6 April 2001 to 5 April 2002 at £14,491.00 and hence as below the earnings limit. But since Mr Webber only re-started employment in September 2001, this was not his annual salary but his pay for the period from then until the end of the tax year. I do not know how this was calculated (on a daily or monthly basis) but it is roughly equivalent to £24,000 pa which accords with what Mr Webber told me was his annual pay.
56. Before me Mr Webber accepted that he must have appreciated that the £14,491 referred to in the letter was his pay for 7 months, and that it was the rough equivalent of £24,000 per year. But in circumstances where he has been told that his earnings limit for 2001/02 is under £21,000, I do not understand how Mr Webber could have failed to appreciate that if he continued teaching full-time the next year at the same salary he would be bound to earn more than the earnings limit (even allowing for it being uprated in line with inflation). Mr Webber said that he continued to rely on what he was told in the telephone call of 28 or 29 May 2001. But that was a general inquiry which was answered on Mr Webber's own account in a somewhat tentative fashion and was followed by a much more precise letter specifically addressing the question of how much he could earn in the year. Mr Webber said that he did not appreciate that he had to complete and return a certificate each year, or in other words he challenges finding C. But even if this were so, I cannot understand – and Mr Webber was unable to explain to me – why he did not appreciate that if he carried on earning at the same rate he would be bound to go over his earnings limit, or at the very least why he did not appreciate that there was a risk of this happening.
57. In these circumstances, I go back to the DPO's finding that Mr Webber "must have been aware that there was a possibility that this [an overpayment] could happen" and ask myself whether this was a factual conclusion that she was entitled to come to. For the reasons I have sought to explain, in my judgment it was.
58. But once it is accepted that this conclusion cannot be overturned, it seems to me that it must follow that the DPO's conclusion that Mr Webber turned a blind eye "for whatever reason" cannot be faulted either. If Mr Webber did appreciate that there was a risk that he was being overpaid, then his failure to contact TP to check what the position was must have been a conscious one, at least in the sense of deciding not to do anything about it. Some clue as to why he might have done this is perhaps given in his submissions to me, which included the statement that he thought TP was receiving information and payment from his employer monthly, and hence that if he was being overpaid they would find out very quickly and contact him. This rather suggests that he did not query the position with TP as he thought it was up to them to discover if there was an overpayment, and not up to him to ask them whether there was one.
59. Before leaving the question of whether the DPO's factual findings in [40] can be overturned, I have considered again whether the decision not to hold an oral hearing was unfair to Mr Webber and undermines her conclusions. I do not consider that this is so. In my judgment the documentary material, read with the benefit of Mr Webber's explanations, did justify the DPO in reaching the factual conclusions she did, even without the benefit of hearing from Mr Webber in person.
60. Mr Webber submitted that the DPO's finding that he turned a blind eye "for whatever reason" was consistent with genuine negligence or making a simple mistake, and that this state of mind did not suffice to deprive him of the defence of change of position. I do not consider that this is a sustainable reading of the DPO's decision. Having rejected the suggestion that Mr Webber failed to act through genuine oversight and having expressly found that Mr Webber must have been aware that there was a possibility that he was being overpaid, the further finding that he "failed to furnish TP with the necessary information" and "turned a blind eye … in the hope that if there was an overpayment building up that would go unnoticed" is in my judgment inconsistent with any suggestion that Mr Webber was merely negligent or made a mistake. Turning a blind eye, an expression famously drawn from Nelson's decision not to read a signal at the Battle of Copenhagen, is usually regarded as indicating a state of mind where the person concerned chooses not to ask a question because he fears that the answer may be not what he wants to hear. I do not really have any doubt that this is what the DPO intended by her use of the phrase. What she was saying was that although Mr Webber may not have known that he was being overpaid, he did appreciate that there was a possibility he was, and chose not to ask TP if that was the case.
61. The question of the state of mind that will disable a defendant from relying on the defence of change of position was addressed by Moore-Bick J (as he then was) in Niru Battery Manufacturing Co v Milestone Trading Ltd [2002] EWHC 1425 (Comm) at [135] as follows:

"The factors which will determine whether it is inequitable to allow the claimant to obtain restitution in a case of mistaken payment will vary from case to case, but where the payee has voluntarily parted with the money much is likely to depend on the circumstances in which he did so and the extent of his knowledge about how the payment came to be made. Where he knows that the payment he has received was made by mistake, the position is quite straightforward: he must return it. This applies as much to a banker who receives a payment for the account of his customer as to any other person: see, for example, the comment of Lord Mersey in Kerrison v Glyn, Mills, Currie & Co. (1912) 81 L.J.K.B. 465 (H.L.) at page 472. Greater difficulty may arise, however, in cases where the payee has grounds for believing that the payment may have been made by mistake, but cannot be sure. In such cases good faith may well dictate that an enquiry be made of the payer. The nature and extent of the enquiry called for will, of course, depend on the circumstances of the case, but I do not think that a person who has, or thinks he has, good reason to believe that the payment was made by mistake will often be found to have acted in good faith if he pays the money away without first making enquiries of the person from whom he received it."

At [138] he reverted to the question, saying:

"The need to make enquiries of Bank Sepah [the bank which made the mistaken payment] is not a matter to be viewed in terms of a duty owed by one banker to another; it is a matter to be viewed in terms of a duty of good faith which a person who has received a payment that he has good reason to think was made under a mistake owes to the person who made it. If under those circumstances the payee fails to make enquiry of the payer before disposing of the money he can properly be described as failing to act in good faith because he acts in the knowledge that he may be infringing the rights of another despite having the means of avoiding that consequence."

He then referred to the payee being "willing to accept the risk" that releasing the money might infringe the payer's rights, and hence not acting in good faith: see at [138]-[139]. The Court of Appeal dismissed an appeal (see [2003] EWCA Civ 1446), with Clarke LJ saying at [162] that:

"the essential question is whether on the facts of a particular case it would in all the circumstances be inequitable or unconscionable, and thus unjust, to allow the recipient of money paid under a mistake of fact to deny restitution to the payer"

and expressly endorsing at [164]-[165] the two passages I have cited. Sedley LJ agreed in the result and also referred to a test of "inequitability": see at [180]-[185]. Butler-Sloss LJ agreed with both judgments.

62. In my judgment it follows that on the DPO's factual findings, her conclusion that the defence of change of position was unavailable to Mr Webber cannot be faulted. If a person appreciates that the payment he is receiving may be an overpayment (or in other words that the payer may be mistaken), and can make a simple enquiry of the payer to check whether this is so but chooses not to do so, I do not see anything wrong in the conclusion that the defence is not open to him. He knows that there is a risk that he may not be entitled to the money, but is willing to take that risk. If it turns out that the payment was indeed an overpayment, it would be inequitable or unconscionable for such a person to deny restitution by relying on a change of position defence.
63. I will therefore dismiss the appeal against the DPO's dismissal of Mr Webber's change of position defence.
64. That makes it unnecessary to consider the details of the various matters that Mr Webber relied on in support of the defence, and I do not think any useful purpose would be served by lengthening this judgment to consider them. I should however briefly deal with one submission that Mr Webber laid particular emphasis on when addressing me, which is that it was wrong for the DPO to reject his statement that he and his wife would not have got married without the extra income. I think there is considerable force in the point Mr Webber made. The fact that Mr Webber chose to get married of his own volition, as he obviously did, is no answer to his statement that he would not have made that choice without the extra income. The idea that financial considerations of that sort never play a part in a decision to marry would come as a surprise to any reader of Trollope, and I do not myself see that the DPO had, or at any rate articulated, any substantial reason for rejecting what Mr Webber said on this point. In the light of the conclusions I have already come to however this does not assist Mr Webber, as the DPO found in effect that he appreciated he might be being overpaid and took the risk that he was.

The limitation point – reasonable diligence

65. The other issue argued before me was that the DPO was wrong not to find that TP could have discovered the overpayment with reasonable diligence before they did.
66. Mr Webber made a number of points under this head. First he referred to the fact that the DPO had said (at [43]) that TP demanded repayment of overpayments from him "following receipt of information from his employer about this service and salary in January 2009". This was taken from TP's letter of 19 January 2009 which began "We have recently received information from Durham County Council informing us of your employment with them"; but Mr Webber said that there was no evidence that Durham had provided any information in January 2009. Durham had confirmed to him that they submitted a Teachers' Annual Service Return after the end of each financial year (the deadline formerly being 31 August but now early July), and had not found any relevant communication with TP apart from that. Mr Webber suggested to me therefore that the only information that TP had from Durham in 2008 was the annual return for 2007/08, and that they would have had the same type of information in August 2003 when they received Durham's annual return for 2002/03.
67. I accept that this is likely to have been so. I cannot tell from the documents before me precisely what information is contained in the annual return, but I infer that it is likely to have at least contained details sufficient to identify Mr Webber as an employee of Durham for the year, and the amount of his salary. As the facts show, he had elected for his further employment to be pensionable; and in these circumstances I would have thought it likely that TP would need to know what his contributable salary was (and his period of service) in order to calculate both what his (and Durham's) contributions for the year should be, and to keep a record of the pension accruing to him. I accept therefore that it is likely that if TP had chosen to do so they could have checked Mr Webber's name as an employee against the records they must hold of Mr Webber as a pensioner and in this way could have identified that he was a teacher in receipt of a retirement pension and had taken up re-employment, and hence someone to whom regulation E14 of the 1997 Regulations applied. I will proceed on this basis.
68. Mr Webber then referred me to the answer, given on 11 December 2012, to a parliamentary question from his MP, Jenny Chapman. She had asked the Secretary of State (Mr Laws) for details of repayments made to the Teacher's Scheme each year, and his answer showed a sharp rise in the average overpayment returned in 2009/10 (an average of £3,758.73) as compared with previous years (between £1,200 and £1,600 for the previous 6 years). He had analysed these figures and suggested they showed that the average total overpayment was some £40,000 per pensioner newly identified in 2009/10 but I have heard no explanation of the figures and I am very doubtful that this can be safely deduced from them. I do however accept, as Mr Webber suggested, that there is reason to suppose that in 2009/10 TP had something of a "blitz", as he put it, on identifying overpayments: the notes to the Teacher's Pension Scheme (England and Wales) Resource Accounts for 2009/10 include the following:

"Over recent years the controls to identify pensioners who have re-entered employment within the teaching profession but have failed to inform the Scheme of their change of status (and therefore continued to receive benefits that they are no longer entitled) has significantly improved. This is as a result of the Contractor improving communication procedures and, as a consequence, a large number of overpayment cases have been identified. These included cases where there were overpayments over many years and resulted in high value overpayment."

69. In these circumstances Mr Webber's submissions were as follows. It would be reasonable for DfE or TP to have systems in place to recover overpayments that, as the table produced by Mr Laws shows, were occurring regularly and in significant numbers. Mr Webber was told by the DfE in January 2013 that in the period 1998/99 to 2011/12 Capita (the contractor responsible for administering the Scheme) issued a total of 2,633 invoices to recover scheme overpayments resulting from scheme members failing to provide the required information to the administrator. TP was both paying Mr Webber a pension and, in a different department, knew that he was teaching. It could have calculated his earning limit and found out that he was being overpaid.
70. I accept that it would have been possible for TP to set up systems to identify at least some possible cases of overpayment by marrying up the information they had on teachers to whom they were paying pensions and the information they had on teachers who were in employment and accruing further pension. But the question for me is not what I think they could have done. On appeal, my role is limited to the question whether the DPO's conclusion that TP had not failed to act with reasonable diligence in this respect is one that was open to her. Her conclusion was that it was reasonable for TP to rely on the fact that (i) the Regulations placed the onus on the teacher to notify TP of any change in salary and (ii) that Mr Webber ought to have been aware of what his obligations were.
71. Mr Webber said that this conclusion involved an error of law as the requirement in Regulation H3(4)(b) to notify the Secretary of State of "any change in salary" did not apply to an annual pay rise in the same salary band. As a matter of construction of the Regulations I do not agree: "any change in salary" means what it says and when salaries are increased through an annual pay rise, there is necessarily a change in salary. This is so even though one would have thought the DfE would be aware itself of annual pay rises.
72. The next question is whether it was in general reasonable for TP to rely on the teachers to notify them each year rather than have systems in place to collate the information. The DPO took the view that this amounted to reasonable diligence. This was a value judgment for the DPO as fact-finder to make, and it seems to me impossible to characterise it as involving an error of law.
73. However, as well as the general point that TP or DfE should have had systems in place, Mr Webber had a further submission which was that TP was actually aware at the time the letter dated 22 October 2001 was produced that if Mr Webber was to continue in full time employment into the next year his total income would exceed his salary of reference. This gave TP an opportunity to give a very clear warning that he would have to complete a new certificate in April.
74. I do find it very surprising that when TP wrote the letter of 22 October 2001 it did not do more to highlight the position. As explained in paragraph 55 above, the letter itself gave Mr Webber's earnings limit at £20,837.10, and although it calculated his salary for the tax year 2001/2002 at £14,491.00, this was only for the period starting in September 2001. Whoever calculated the £14,491.00 must have known that this was not a full year's salary but only for some 7 months. It does not take a moment to realise that this is the equivalent of some £24,000 a year – indeed one suspects the calculation may very well have started from the yearly salary.
75. But this means that it was inevitable that if Mr Webber continued in the same employment throughout the next tax year, his salary would exceed his earnings limit. This has nothing to do with the effect of salary increases: even if there had been no annual increase Mr Webber's income would go over the limit. I do not see that sending a new certificate in April would have added anything to TP's knowledge on this point – they already had at the time of writing the letter all the information they needed to see that this would happen. TP did not need to have any complex system in place, or cross-refer from their records of pensioners to their records of employees; or rely on information from Mr Webber or from Durham or anyone else; all that was needed was to identify at the time of doing the calculations that if Mr Webber's employment continued unchanged into next year, there would be a need for an abatement. I think they had enough information to be aware of this as matters stood, but another sentence in the letter saying "you should note that although there is no abatement this year, if you continue to be employed at the same rate next year your salary will exceed the earnings limit; please will you confirm in April whether your employment is continuing" would have been sufficient to lead to TP having all the information it needed to be aware that an abatement would be triggered in the course of the year unless Mr Webber stopped work. In order to calculate the precise amount TP would then need either from Mr Webber or Durham a statement of his salary, but there is no reason to think that if they had asked him what it was he would have refused to tell them.
76. I have looked carefully at the Second Determination to see if the DPO dealt with this particular point. I cannot find that she did. What she said about this is at [45]:

"Given that I have found that Mr Webber ought reasonably have known what his obligations were, it follows that I consider that TP acted reasonably in relying on the provisions of the Regulations and could not reasonably have discovered the mistake earlier than it did. "Reasonable diligence" means just that and does not require that exceptional or excessive measures be taken."

But no exceptional or excessive measures were required to identify that unless Mr Webber stopped working he would go over the earnings limit. And as I have already said this has nothing to do with the obligation in the regulations to notify TP of salary increases (and it is to be noted that nowhere in the regulations is there a specific obligation on the teacher to notify TP each year that they continue to be employed – the obligation is only to notify on taking up employment or on a change in salary, not on remaining in employment in a new tax year). Even without any salary increase TP had all the information in their own letter to enable them to know that an abatement would be triggered in the course of the next year unless Mr Webber gave up his job.

77. I have come to the conclusion that on this narrow but significant point the DPO's conclusion cannot be upheld. I do not think that either reliance on the regulations or the fact that reasonable diligence does not require exceptional or excessive measures is an answer to the point that TP already had all the information it needed to see that an abatement would, other things being equal, be triggered.
78. I have considered whether it is necessary to send the matter back to the DPO for a third time, but I am most reluctant to put the parties (or the DPO) to the trouble, expense and delay that this would cause, and I have decided that I should myself resolve the point now. In my judgment the only reasonable conclusion is that TP could with reasonable diligence have discovered the fact of overpayment during the tax year 2002/3. TP knew, or had all the information necessary to know, that an abatement would be triggered in the tax year unless Mr Webber gave up his job. It would not have been difficult or cost TP anything to tell Mr Webber that in the letter and require him specifically to confirm the position after April. Indeed I do not think they even needed to go that far: if TP knows that an abatement will be triggered if Mr Webber continues in employment, it does not seem to me unreasonable, or require any particular diligence, for them to proceed on the assumption that his employment will continue unless they hear to the contrary. It is not as if the end of the tax year coincides with the end of a school year, and it would seem perverse to think that someone in Mr Webber's position would not continue working into the next tax year. If a person knows (or has the information to enable him to know) that unless circumstances change he will inevitably be making an overpayment I do not think he can escape a finding that he could have discovered the mistaken overpayment with reasonable diligence by saying he did not know, and did not trouble to inquire, whether circumstances had indeed remained the same.
79. It follows from this conclusion that the limitation period started running as soon as TP started making overpayments which would have been some time in the 2002/3 tax year. It is not necessary (and I am not in a position) to identify the precise date: the effect is that Mr Webber has a limitation defence for the recovery of any overpayments made more than 6 years before the relevant date when the limitation period is to be regarded as having stopped (the cut-off date). To this extent I will allow the appeal.
80. I have had no submissions on when the cut-off date is. In court proceedings the cut-off date is when the claim form is issued. The proceedings before the Ombudsman do not start with a claim form and do not technically stop the limitation period, but in practice the Ombudsman will decide cases that turn on legal rights (as opposed to pure maladministration) by analogy to how a court would have decided the same dispute: see the explanation by the DPO at [41]:

"As I am obliged to decide cases in accordance with legal principles (except in cases of "pure maladministration and consequential injustice" which is not the case here) it would not be right for me, by not upholding Mr Webber's complaint to, effectively, grant a remedy to TP (by implying that it was entitled to recovery of the full amount) if it would not have been entitled to such a remedy had the matter been before the court."

It was not suggested to me by either party that this approach was wrong.

81. Since I have not heard any argument on the point, I will not formally decide what the cut-off date is but I will say, in the hope that this may assist the parties, that I am presently firmly of the view that the closest analogy to the issue of a claim form is the formal bringing of the complaint by Mr Webber to the Ombudsman because at that point the question of the recovery of the overpayments was in issue between the parties before the Ombudsman. I do not I think have any information as to what that date was but it is presumably easy to identify. I also have no information which would enable me, even if the cut-off date were identified, to ascertain what overpayments were made in the 6 years before that date, but again I would hope that would not be a difficult or controversial exercise. I will formally give the parties the opportunity to have both the question of the cut-off date and the quantum of overpayments that were made in the 6 years previous to that date referred back to the DPO in case they are unable to identify or agree those matters, but I hope that they will be able to agree what should be straightforward matters and that it will be unnecessary to actually trouble the DPO again.
82. Before leaving the case I should mention that I was not provided on appeal with either the relevant documents that were before the DPO or the correspondence with the DPO in which the parties made their submissions. It would have been helpful to have both of these rather than rely on the Determinations for an account of what they said. I do not blame Mr Webber for this as it is difficult for a litigant in person to know what needs to be included, but in circumstances where it is apparent to a respondent that the appellant has failed to include relevant material, it would be helpful for the respondent to ensure that the court on appeal has all the material which was before the Ombudsman and which is relevant to the issues to be argued on appeal.
83. I am very grateful to Mr Webber, who conducted his appeal in person with moderation, and to Mr Davey, who appeared for the respondent, for their assistance.