In recent months, we have noticed an increasing level of correspondence being issued to bankrupts by the Official Assignee (‘OA’), where the OA is seeking to access a persons pension.
This development is causing significant confusion and distress with many feeling pressured to accede to the OA’s requests without a review and consideration of the individual facts of each case.
At Anthony Joyce & Company, we have extensive experience in bankruptcy and the laws governing this niche area. We are currently representing several clients who have received correspondence concerning their pensions and are reviewing each case carefully to assess whether an entitlement arises on behalf of the OA and if so, to what extent.
Understanding the Issue
The central question to consider is whether the Official Assignee is actually entitled to access a bankrupt’s pension. Section 44A of the Bankruptcy Act 1988 permits the OA to select options that may be available to a bankrupt with regard to a pension benefit arising within five years post adjudication from bankruptcy. In other words, if a pension benefit becomes available to a bankrupt within five years of your bankruptcy, the OA can take these benefits and distribute them among the creditors in your bankruptcy estate.
However, the circumstances where an OA is permitted to access your pension are limited and must comply with the Revenue Rules and statutory parameters in place which assist in protecting a bankrupts pension including certain provisions of the Taxes Consolidation Act 1997. There are therefore circumstances in which the Official Assignee is not entitled to the bankrupt’s pension benefits. These cases should consider each individuals facts, which include age and employment status of the bankrupt.
Your Rights and Obligations
A bankrupt has obligations to assist the Official Assignee in assessing the case and providing documentation on request. However, it is also essential that a bankrupt carry out or instruct a legal advisor to carry out their own detailed analysis of the facts of each case together with the position in law and if appropriate put forward an argument asserting your rightful entitlement to retain your pension.
Taking Action
If you have been through the bankruptcy process and have a pension fund that you require assistance with, feel free to contact a member of our bankruptcy team for a consultation where we can provide tailored advice to ensure that you get the expertise and support you need during this difficult time.
Contact us today for a consultation.
