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Superannuation Determination
Case numbers | 12-00-979483 & 12-00-1023919 |
Financial firm | Australian Retirement Trust Pty Ltd (trustee) |
Joined financial firm | Hannover Life Re of Australasia Ltd (insurer)
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Case numbers: 12-00-979483 & 12-00-1023919 12 August 2024
When the complainant joined fund 1 on 1 July 2008, he did not hold Income Protection (IP) cover through that fund. On 25 July 2008, his account in fund 1 was transferred to the former fund.
On 1 July 2012, the complainant received 2 units of IP cover under a group income protection policy between the former trustee and the former insurer (policy 1). The insurer became the insurer on risk for the former fund on 1 July 2014 and policy 2 came into force. The terms and conditions of policy 2 relevant to the complainant’s claim were those that came into effect on 1 July 2018.
In December 2021, the former fund merged with another superannuation fund and became known as the fund on 28 February 2022. Subsequently, the trustee became the trustee of the fund and the owner of policy 2.
In March 2023, the complainant lodged a claim for IP benefits with the insurer due to a heart condition and anxiety. In June 2023, the insurer accepted the claim, determined the date of disability was 27 July 2021 and commenced paying the complainant IP benefits under policy 2.
During the course of assessing the complainant’s ongoing entitlements to IP benefits, the insurer realised the complainant had IP cover with the other insurer and he had been on claim with the other insurer. The insurer then obtained information from the other insurer. The other insurer said it paid the complainant IP benefits under its policy, for the maximum period of two years which ended on 24 September 2023.
The insurer then reviewed its assessment of the complainant’s claim and revised its assessment of the complainant’s waiting period and IP benefit entitlement, under policy 2. The insurer decided it was entitled to offset IP benefits paid by the other insurer because the complainant received IP benefits from the other insurer for the same benefit period. The insurer re-calculated the complainant’s IP benefit to be $0. The insurer says it overpaid the complainant IP benefits totalling $23,227.86 but it does not intend to seek recovery of those monies.
The complainant says he obtained IP cover from the other insurer and the insurer, so he could receive IP benefits under the policies consecutively, not concurrently. He says he was not made aware of the ‘offset clause’ and he is entitled to receive the maximum IP benefit of 24 months under policy 2.
The trustee informed AFCA it assumed responsibility for the complaint. It agreed with the insurer’s decision and said the complainant was provided with information about the offset clause. It declined to compensate him.
The decisions under review are:
Yes. The complainant signed a consent authorising the insurer to collect information from a variety of sources, including the other insurer, to assess and process his claim.
Yes. The insurer was entitled to recalculate the complainant’s monthly benefit entitlement upon receipt of information from the other insurer. It was entitled to apply the benefit offset provisions under policy 2 in calculating the complainant’s IP monthly benefit. This reduced the complainant’s monthly benefit to nil. The insurer inadvertently made an overpayment of IP benefits to the complainant totalling $23,227.86 (including tax) and it is not seeking recovery of those monies.
Yes. The former trustee provided the complainant with information about policy 1 and policy 2.
Yes. The complainant authorised the insurer to obtain information to assess his claim and the insurer was entitled to rely on the terms and conditions of policy 2 in assessing his monthly IP benefit. The former trustee provided the complainant with information about his IP cover and the trustee reviewed the insurer’s decision. The trustee was satisfied the insurer correctly applied the terms and conditions of policy 2.
Under section 1055(2) of the Corporations Act 2001 (Cth), AFCA must affirm a decision if it is satisfied the decision, in its operation in relation to the complainant, was fair and reasonable in all the circumstances. AFCA affirms the decisions of the insurer and the trustee.
In determining superannuation complaints, AFCA must:
Due to the nature of this complaint, AFCA referred it to a panel for determination. The panel includes an ombudsman, a member with consumer experience and a member with superannuation and insurance industry experience.
The issue is not what decisions the panel would have made, but whether the decisions under review, in their operation in relation to the complainant, were fair and reasonable in all the circumstances.
In reaching its determination, the panel has reviewed the AFCA file and considered all the material provided by the parties. The panel is satisfied the material relied on has been provided to all parties and they have had an opportunity to respond.
The panel has made findings of fact and summarised this information which it relies on in making this determination. This information is set out in section 3.2 of this determination.
2.2 Did the complainant authorise the insurer to collect information from the other insurer?
Yes. The complainant signed a consent authorising the insurer to collect information from a variety of sources, including the other insurer, to assess and process his claim.
The complainant says the insurer should not have communicated with and obtained information from the other insurer or with the trustee. This was a breach of his privacy.
The insurer says the complainant signed an authority allowing it to obtain information from the other insurer.
After independently reviewing this part of the complainant’s complaint, the trustee agreed with the insurer.
The initial claim form completed by the complainant in 2023 had the following statement for Declaration and Consent:
[…]
I UNDERSTAND that in order to assess and process my application, (the insurer) may need information about me including but not limited to medical, financial, legal and employment. I CONSENT to (the insurer) obtaining information about me from any medical practitioner or health professional that I have consulted at any time and any that (the insurer) wishes to appoint to examine me, legal practitioners, legal tribunals and courts, investigation organisations, accountants or other consultants, (the insurer’s) parent company, other insurance or reinsurance companies, the trustees of my superannuation fund, any organisation appointed by the trustees of my superannuation fund to receive or give information, my past and present employers and interpreters.
The complainant signed the authority on 3 March 2023 and authorised the insurer to obtain information from a variety of sources, including other insurers, to assess and process his claim.
The panel is satisfied the complainant authorised the insurer to obtain all necessary information from the other insurer to assess and process his IP claim and it did so. For completeness, the panel notes this is not an unusual practice within the insurance industry and was necessary for the insurer to correctly adhere to the terms of this policy.
The insurer also exchanged information with the trustee as required and permitted under its agreement with the trustee.
The insurer was obliged to share information with the trustee when explaining its reasons for its claim decision. As the claim was made in 2023, at which time the complainant was a member of the fund, the trustee was responsible for considering the complainant’s IP claim. Thus, it was appropriate for the insurer to share all relevant information about its assessment of the claim with the trustee.
2.3 Did the insurer calculate the complainant’s IP benefits correctly?
Yes. The insurer was entitled to recalculate the complainant’s monthly benefit entitlement upon receipt of information from the other insurer. It was entitled to apply the benefit offset provisions under policy 2 in calculating the complainant’s IP monthly benefit. This reduced the complainant’s monthly benefit to nil. The insurer inadvertently made an overpayment of IP benefits to the complainant totalling $23,227.86 (including tax) and it is not seeking recovery of those monies.
The insurer says:
The trustee says policy 2, under which the complainant held IP cover at the date of disability, has always had provisions that exclude a member from claiming an amount equal to their insured salary from more than one insurer during the same insured benefit period.
These provisions reflect the intent of IP cover as prescribed by legislation, which is, to provide a member with benefits equal to, or a percentage of, their pre-disability income while they are unable to work. The effect of claiming this benefit from two insurers for the same period could be that a member is paid more while off work than they were earning while working.
After independently reviewing the complaint, the trustee agrees with the insurer.
The complainant says:
The complainant says his claim with the insurer was only submitted on 4 July 2023 and questions how the insurer can ‘backdate’ his date of disability to 9 March 2021. The complainant also says that his IP claim with the other insurer was for burnout, depression and anxiety and his claim with this insurer was for ‘a combination of a cardiac and anxiety’.
The panel has carefully examined all of the medical evidence provided and is satisfied that the complainant had a significant cardiac history. He suffered a heart attack in 2010, and received ongoing treatment for his cardiac condition from that time until he ceased work. He also suffered with anxiety.
The question for the panel, exercising the powers and obligations of the insurer, is when did the complainant first become unable to perform at least one income producing duty of his occupation.
In the complainant’s claim for IP benefits under the other policy, in the Medical Attendant’s Statement dated 27 September 2021, Dr ET, Psychiatrist, reported his initial consult with the complainant was on 9 March 2021. On that date he certified the complainant totally and permanently disabled and unfit for work.
After examining and considering all of the information provided by the parties, the panel is satisfied this was also the date the complainant was first medically certified as being unable to perform at least one income producing duty of his occupation.
On 9 March 2021, the insurer on risk for the former fund was the insurer under policy 2. Thus, on that date the complainant held IP cover under policy 2 and his entitlement to receive IP benefits has to be assessed in accordance with the terms and conditions of policy 2. The relevant parts of policy 2 are set out in section 3.4 of this determination.
Policy 2 provides for a benefit period of two years with a waiting period of 60 days.
Clause 5.6 of policy 2 states that the waiting period starts on the date an insured person who suffers an injury or an illness first receives medical advice from a doctor about their condition and the doctor certifies that on that day the insured person suffers total disability. For the complainant, that is 9 March 2021.
Therefore, the waiting period commenced on 9 March 2021 and ended 60 days later on 7 May 2021. The insurer informed AFCA the complainant’s payslips for the period 3 March 2021 to 9 June 2021 show he was on sick leave benefits and information from the complainant confirmed he exhausted his sick leave benefits before he commenced receiving IP benefits from the other insurer.
The information provided shows the complainant did not resume work for the duration of the 60-day waiting period and the complainant’s benefit period commenced on 8 May 2021.
The evidence shows the complainant returned to full-time work from 24 June 2021 to 26 July 2021. The insurer has provided calculations showing the two-year benefit period commencing 8 May 2021 ended on 9 June 2023. The evidence also shows the complainant was in receipt of IP benefits from the other insurer during this period.
Policy 2 includes an offset clause, that is, clause 5.9, that says the monthly benefit will be reduced by any other disability income that an insured person in entitled to receive during that month.
Other disability income is defined in section 10 of policy 2 to include:
The panel is satisfied the complainant received two years of disability income under the IP cover he had with the other insurer. Accordingly, the insurer was entitled to offset this disability income from his IP benefit under policy 2.
The insurer provided its calculation of the complainant’s monthly benefit, which is set out in section 3.2 of this determination.
The panel has carefully examined the calculation provided by the insurer and is satisfied the insurer applied the terms of policy 2 correctly, in calculating the complainant’s monthly benefit. The insurer was entitled to reduce the complainant’s monthly benefit by the IP benefits paid by the other insurer.
The complainant’s monthly benefit under policy 2 was $6,787.90 and the monthly benefit paid by the other insurer was $7,847.48. Thus, the panel is satisfied the complainant’s entitlement to monthly benefits under policy 2 was reduced to nil.
IP cover is insurance provided for temporary incapacity. Schedule 1 of the Superannuation Industry (Supervisions) Regulations 1994 (Regulations) sets out the conditions of release of benefits. The relevant provisions are set out in section 3.5 of this determination. As the complainant had already received the percentage of salary he insured himself for during the relevant period, policy 2 does not provide for any further benefit for that period. This is consistent with superannuation law.
The complainant says that the trustee cannot ‘choose’ a date of disability before the fund was established. When the complainant made his claim in 2023, it was correct for the trustee to consider what was the complainant’s date of disability and which IP policy provided cover to him.
The complainant’s entitlement to IP cover does not arise at the date a claim is made but rather at the date of disability. The panel has set out its reasons why it accepts the complainant’s date of disability was 9 March 2021, earlier in this determination. At that time policy 2 was owned by the former trustee. The fact the trustee subsequently became the trustee of the fund in which the complainant is a member, did not bring about any changes to the complainant’s entitlement to IP cover under policy 2.
The trustee has confirmed it has assumed responsibility for the complaint, to the extent it relates to events that occurred in the former fund.
2.4 Did the former trustee provide the complainant with sufficient information about policy 1 and policy 2?
Yes. The former trustee provided the complainant with sufficient information about policy 1 and policy 2.
The complainant says:
The trustee says:
The complainant, as a member of the fund, received IP cover under the relevant policy of insurance at the date he suffered a total disability, unless he elected not to maintain cover.
Under the governing rules of the former fund, the former trustee had broad discretions in relation to making available insurance cover for fund members, including changing insurers and varying and modifying any policies of insurance it held. The relevant trust deed provisions are set out in section 3.3 of this determination.
In line with its broad discretion, the former trustee changed insurer from the former insurer to the insurer. The panel has examined all the information provided and is satisfied that the insurer became the insurer of the former fund on 1 July 2014.
As noted above, when insurance is held through a superannuation fund, the contract of insurance is between the insurer and the trustee. The obligation to provide information about an insurance policy falls on the trustee, not the insurer, because:
The former trustee had the obligation of providing the complainant with information about his IP cover.
The panel has carefully examined all of the information provided by the parties, including policy 1 and policy 2 provisions and correspondence from the trustee and former trustee addressed to the complainant.
The panel is satisfied the former trustee provided the complainant with information, including Corporate Guides and Significant Event Notices, informing him of changes to his IP cover, from the date he first received IP cover on 1 July 2012 and the date he ceased work due to his illness. That information included information that benefit payments would commence once the waiting period ends, and that policy benefits would be subject to offsets where other disability income was received. The trustee met its disclosure obligations by providing the complainant with this information.
The panel is also satisfied there was no material change in the scope of cover between policy 1 and policy 2 as it related to the ‘waiting period’, when benefits under the respective policies commenced and ‘offset benefits’.
2.5 Were the decisions of the insurer and the trustee fair and reasonable?
Yes. The complainant authorised the insurer to obtain information to assess his claim and the insurer was entitled to rely on the terms and conditions of policy 2 in assessing his monthly IP benefit. The former trustee provided the complainant with information about his IP cover and the trustee reviewed the insurer’s decision. The trustee was satisfied the insurer correctly applied the terms and conditions of policy 2.
The insurer is entitled to rely on the terms and conditions of policy 2. As explained earlier in this determination, the insurer identified the correct date for the commencement of the complainant’s IP benefit and it correctly calculated the complainant’s monthly IP benefit.in accordance with the terms and conditions of policy 2.
The panel is satisfied the insurer’s decision, in its operation in relation to the complainant, was fair and reasonable in all the circumstances, as it accords with the policy terms.
The former trustee provided the complainant with information about his IP cover and the trustee reviewed the insurer’s decision. The trustee was satisfied the insurer correctly applied the terms and conditions of policy 2 and that the former trustee had disclosed those terms to the complainant.
The panel is satisfied the trustee’s decisions, in their operation in relation to the complainant, were fair and reasonable in all the circumstances.
The panel appreciates the complainant is disappointed, as he thought he would be able to obtain the maximum IP benefits under each of policy 2 and the other policy.
However, under section 1055(7) of the Corporations Act 2001, AFCA cannot make a determination of a superannuation complaint contrary to the terms of a policy of insurance or the governing rules of a fund. See section 3.4 of this determination.
AFCA can find no basis to compensate the complainant as the former trustee gave him the required disclosure to make an informed decision about his IP cover.
2.6 Determination
Under section 1055(2) of the Corporations Act 2001 (Cth), AFCA must affirm a decision if it is satisfied the decision, in its operation in relation to the complainant, was fair and reasonable in all the circumstances. AFCA affirms the decisions of the insurer and the trustee.
AFCA is not a court of law. We do not have the power to take or test evidence on oath.
When we assess complaints, we consider:
We give more weight to documents created at the time the events occurred. If there are no relevant documents, we will decide what most likely occurred based on the available information.
If there are conflicting recollections and these are evenly weighted, we may find that there are no grounds to set aside the trustee’s decision.
Substantial information and submissions have been provided by the parties. The panel has read and considered all this information and has summarised the key facts relevant to determining the issues in contention. If a fact is not noted, it does not suggest the panel did not read and consider all the material provided by the parties. The panel is satisfied of the following:
Record | Key points |
01-07-2008 |
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25-07-2008 |
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21-08-2008 |
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31-05-2012 |
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01-07-2012 |
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The former trustee sends information about change to the complainant’s insurance to the complainant 27-05-2014 |
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The former trustee provided the complainant with details of his insurance cover effective 1 July 2020 21-01-2021
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The other insurer’s IP claim form Intermediate Medical Attendant’s Statement, Dr ET, Psychiatrist 27-09-2021 |
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Successor Fund Transfer Deed Dated 17-12-2021 |
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The initial claim form completed by the complainant for IP benefits under policy 2 03-03-2023 |
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The other insurer’s Disability Benefit Payment Overview as at 14-04-2023 |
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The insurer’s internal dispute response to the complainant which provided the re-calculation of his monthly IP benefit under the policy 2 08-11-2023
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The trustee’s letter of response to AFCA 01-02-2024 | The trustee:
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Clause | Terms |
6. Management of Trust 6.1 Powers of trustee | ... The trustee has full and absolute powers of: … (s) taking out, or otherwise acquiring surrendering any Policy of Insurance, and paying premiums... |
11.4 Benefit payable to Members | A benefit becomes payable in respect of a Member when the Member: […] (f) suffers Total Disability, where a benefit is payable on Total Disability under the terms of a Policy of Insurance applicable to the Member; [...] |
11.5 Amount of benefit payable | [...] (a) where a benefit is payable in respect of a Member pursuant to Total Disability, the amount of and terms on which the benefit is paid will be in accordance with the Policy of Insurance pursuant to which the benefit is paid. [...] |
21.1 Notices | (a) Any notice which is required to be or which may be given to any Participating Employer or Member may be delivered to the Participating Employer or Member personally or sent through the post addressed to the Participating Employer or Member at the address according to the records of the Trustee. (b) If sent by post a notice is deemed to have been delivered on the day following the posting of the notice. |
21.3 Governing Law | All matters arising in relation to this Deed and the interpretation thereof shall be governed by the law of the State of Queensland |
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Clause | Terms |
4 Successor fund agreement | [Party 1] and [Trustee] agree that: (a) immediately on and from the Merger Time, the [New] Fund will confer on each Transferring Member equivalent rights in the Merged Fund to the rights that the Transferring Member had, immediately before the Merger Time, under the [former fund] in respect of the benefits transferred; and (b) the (new) Fund is a "successor fund" to the [former fund] for the purposes of SIS Regulation 6.29. |
5.1 Transfer of superannuation benefits | With effect immediately on and from the Merger Time, [Trustee] will:
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5.2 Transfer of [former fund] Assets | Subject to clause 5.5, with effect immediately on and from the Merger Time, [Trustee] must: (a) transfer the [former fund] Assets to the Merged Fund in accordance with clauses 5.3 to 5.7, and (b) subject to clause 6, attribute the [former fund] Assets to the Public Offer Division of the Merged Fund. |
5.4 Life insurance policies | Without limiting clause 5.2, [Trustee] must, prior to the Merger Time, use its best endeavours to obtain written confirmation from each issuer of the life policies held by [Trustee] as the trustee of the [former fund] that the relevant life policy will cease to be held by [Trustee] as trustee of the [former fund] and commence to be held as trustee of the Merged Fund with effect from the Merger Time. |
Former Insurer policy 1-Income Protection Insurance Policy Effective 1 July 2011
Clause/Definitions | Policy Wording |
3. Definitions | "Waiting Period" means the number of continuous days which must elapse before the Total Disability Benefit or Partial Disability Benefit begins to accrue. The Waiting Period commences from the date the Insured Member is Totally Disabled in relation to an injury or sickness that gave rise to a claim and by reason of which the Insured Member ceased work, as certified by a Medical Practitioner. |
9…Schedules
Schedule 1 - Benefits & Offset Benefits
| 1 Total Disability and Limited Total Disability Benefits a) If an Insured Member suffers Total Disability or Limited Total Disability, the Company will, subject to the terms and conditions of this Policy, pay a Monthly Benefit. b) The Company will pay the Monthly Benefit in arrears, calculated from the first day following the end of the Waiting Period until the Ceasing of Benefit Payments as defined in General Condition 5.14 of this Policy. In the case of a part month, the Company will pay one-thirtieth (1/30th) of the Monthly Benefit for each day of Total Disability or Limited Total Disability. […] |
Schedule 1 – Benefits & Offset Benefits | 3. Offset Benefits a) Any Benefits which are payable to an Insured Member under this Policy will be reduced where the Insured Member is also receiving Offset Benefits subject to the following:
In the case of Total Disability or Limited Total Disability for the Industry Division, where the Offset Benefits received by the Insured Member is
(i) Greater than 75% of the Insured Member’s Pre-Disability Income, no cash benefit will be payable to the Insured Member. An amount up to 25% of the Insured Member’s Pre-Disability Income for New Member or Existing Member voluntary opt in cover or 10% for Tailored Cover up to a maximum of the Total Disability Benefit will be payable into the Insured Member’s superannuation account; and (ii) Less than or equal to 75% of the Insured Member’s Pre-Disability Income, a cash benefit will be payable to the Insured Member such that the combined cash and Offset Benefit represents no more than 75% of Pre-Disability Income. An amount up to 25% of the Insured Member’s Pre-Disability Income for New Member or Existing Member voluntary opt in cover and 10% for Tailored Cover up to a maximum of the Total Disability Benefit will be payable into the Insured Member’s superannuation account.[…] |
Policy 2 dated 1 July 2018
Clause/Definitions | Policy Wording |
Clause 4.1 Total disability | We will pay a Monthly Benefit for an Insured Person if they suffer Total Disability during the Benefit Period. No Total Disability benefit is payable until the expiry of the Waiting Period. |
Clause 5.6 Waiting Period | We are not liable to begin to pay any Total Disability or Partial Disability benefit until the expiry of the Waiting Period. The Waiting Period starts on the date an Insured Person who suffers an Injury or an Illness first receives medical advice from a Doctor about their condition and the Doctor certifies that on that day the Insured Person suffers Total Disability. Where an Insured Person suffering Total Disability returns to work during the Waiting Period and this return to work proves unsuccessful due to the Injury or Illness causing Total Disability, then the original Waiting Period will continue if the number of days they return to work for is no more than 10% of the Waiting Period. |
Clause 5.7 Benefit period | The Benefit Period starts the day after the expiry of the Waiting Period. The Benefit Period is the maximum duration that any 1 claim will be paid. However, where we have continuously paid a benefit for the entire Benefit Period we will pay a benefit for a Disability that is caused by the same or related Injury or Illness, where: (a) The periods of Disability are separated by a period of at least 6 months, and (b) The Insured Person returned to being At Work for their Employer for at least 6 consecutive months undertaking all of the duties and hours of their usual occupation immediately prior to Disability, and (c) Premium has continued to be paid, and (d) The requirements of clause 5.6 (Waiting period) have been met for the subsequent Disability. |
Clause 5.9 Benefit offsets | The Monthly Benefit for Total Disability or Partial Disability shall be reduced by any Other Disability Income that the Insured Person is entitled to during that month. Unless we have agreed otherwise, a reduction will only be made where their Monthly Benefit plus any Other Disability Income exceeds 75% of their pre-disability Monthly Income or the Maximum Monthly Benefit. If the entitlement of an Insured Person to Other Disability Income is in dispute, we may at our discretion pay the full amount of the benefit due under The Policy on a conditional basis until the dispute is resolved. If we choose to pay, and the Insured Person receives Other Disability Income, we may offset those payments received from future benefits or recover the amount of benefit we have paid which would have been offset. |
10. Definitions Other Disability Income | means any income, other than income under The Policy, which a person may derive during a month for which a benefit under The Policy is being assessed, whether that income was actually received or not, and includes: (a) Any other income derived as a result of incapacity under any other insurance policy, and (b) Federal or Territory legislation, and (c) Sick leave entitlements, and (d) Termination payments from the Employer. It does not include: (e) Income earned from investments, (f) Any lump sum total and permanent disablement benefit, lump sum superannuation benefit, lump sum trauma or terminal illness style of benefit, (g) Annual leave or long service leave entitlements, or (h) Centrelink payments. Any Other Disability Income that is in the form of a lump sum, or is commuted for a lump sum, has a monthly equivalent of 1% of the lump sum for each month a disability benefit is paid. If it can be shown that a portion of the lump sum represents compensation for pain and suffering, or the loss of use of a part of the body, we will not take that portion into account as Other Disability Income. Where a common law, workers compensation or statute payment is received as a lump sum and pain and suffering cannot be isolated from loss of earnings, we will convert this to income on the basis of 1% of the lump sum for each month a disability benefit is paid. |
10. Definitions Total Disability | means because of an Injury or Illness the Insured Person is: (a) Unable to perform at least 1 income producing duty of his or her occupation, and (b) Under the regular care and following the advice of a Doctor, and (c) Not working in any occupation, whether for reward or not for reward. An income producing duty is a duty of the Insured Person's occupation immediately before they became disabled which generates 20% or more of their Monthly Income. |
10. Definitions Waiting Period | Means the period described in clause 5.6 (Waiting period). The Waiting Period is in the Policy Schedule. |
The Superannuation Industry (Supervision) Regulations 1994
Schedule 1
Par 1- Regulated superannuation funds
Section 1055 (7) (c)- Corporations Act 2001
Limitations on determinations:
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(7) AFCA must not make a determination of a superannuation complaint that would be contrary to:
(a) law; or
(b) subject to paragraph (6)(c), the governing rules of a regulated superannuation fund or an approved deposit fund to which the complaint relates; or
(c) subject to paragraph (6)(d), the terms and conditions of an annuity policy, contract of insurance or RSA to which the complaint relates
