Decisions relating to the payment of death benefits

Recently, amendments have been made to Trustee’s inquiries and complaints obligations under s 101 of the Superannuation Industry (Supervision) Act 1993 (SIS Act) as part of the Government’s Stronger Super reforms.

In particular, SIS s 101(1)(c)(i) was added and from 1 July 2013 a trustee is required to give written reasons for its decision about a complaint that relates to the payment of a death benefit at the time of the decision.

The cases Re Vegara [1999] QSC 50 and Webb v Teeling [2009] FCA 1094 have characterised:

• a trustee’s proposal as to the payment of the death benefit, given for the purposes of s 15(2) of the Superannuation (Resolution of Complaints) Act 1993 (Complaints Act), as a trustee decision, and
• a person’s objection to that proposal, also for the purposes of s 15(2) of the Complaints Act, as a complaint to the trustee for the purposes of SIS s101.

 When the trustee gives its decision in relation to the objection, this will therefore raise SIS s 101(1)(c)(i).

Under s 64 of the Complaints Act if the Tribunal Chairperson becomes aware that a contravention of any law or of the governing rules of a fund may have occurred, the Chairperson must give particulars of the contravention to the Australian Securities and Investments Commission (ASIC), the Australian Prudential Regulations Authority, or both.

Under the SIS Act, ASIC has the administration of SIS s 101.

Until ASIC guidance in relation to compliance with SIS s 101(1)(c)(i) is available, to fulfill its obligations under s 64 of the Complaints Act, the Tribunal will be obliged to refer matters to ASIC where it appears that the Trustee has made no attempt to provide reasons for its decision in relation to the person’s objection/complaint.

For more information on these changes please visit the Superannuation Complaints Tribunal website.

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