Select Committee on Defence Minutes of Evidence

Examination of Witnesses (Questions 40 - 59)



Mr Howarth

  40. On the processing of claims, based on your own experience of handling claims on behalf of veterans, do you think that the MoD's aim under the new scheme of making decisions on most cases "within a few weeks of submission" is realistic?
  (Major House) I work at the grass roots of claims for war pensions. War pensions can take anything from half a dozen weeks to almost up to a year. I shall defend the War Pensions Agency on this aspect: it is not always the War Pensions Agency, which process the claims, that causes the delay. We have said that war pensions are not given away, and a lot of investigation has to take place to ensure that the particular injury being claimed was caused or aggravated by service. That investigation will mean acquiring information from consultants, GPs, hospitals and the whole medical sphere. That creates the delay. Of course, we would like to see it done in a few weeks, but I do not think that that is practical if we are to ensure that an award is given to a person for an injury that was actually caused by service. That is the fail-safe area.

  41. The answer to the question is that you do not believe that the Government's claim is realistic. Given all this experience, why do you think that they made the claim that they would be able to assess these claims within a matter of weeks?
  (Colonel English) On some of the smaller claims, at the bottom end of the stream—the odd fracture—it is possible that they could make an assessment very quickly, as insurance companies do. When looking at the more sophisticated claims—I refer to ailments that can take a long time to develop and psychiatric ailments are probably at the top of the tree—currently it takes the War Pensions Agency, as Tom has said, many months to assess some of these. When they fail on the first occasion, it can take up to two or three years to go through the appeal process. In the case of simple ailments, such as fractures and obvious matters, I believe that they could be turned around very quickly. With the more underlying causes of ill-health, I do not believe that they can be progressed much faster than the time that is taken now.

  42. Perhaps you can enlighten the Committee as to exactly how these things proceed when someone has an illness. Is it a Service doctor, a civilian doctor or an MoD panel of consultants that decides whether a person is suffering from the illness that they claim?
  (Colonel English) I shall ask Steve, who has recently retired from the Services, to answer that.
  (Lt Col Coltman) The present system is that you do not make a war pensions claim until you leave the forces. You can apply the day you leave the forces, and if you are medically discharged the medical documents are sent to Norcross and they are looked at on the spot. Those claims happen quite quickly unless they are complicated. When someone makes a claim straight after service, the evidence is based on his Service medical documents and that is currently assessed by the War Pension Agency doctors. For people who die in service, the War Pensions Agency makes the decision on the "attributability" or otherwise, and they will make that quite quickly because the cause of death is notified to the War Pensions Agency. That agency's decision is then notified to the individual and to the MoD in the case of medical discharge or death in service and the MoD takes further action. Under the new scheme, as claims will be allowed to be made while the person is still serving, it would be envisaged that while they are still serving it will be their medical documents or the circumstances of the death. We understand that that will be dealt with by the MoD. They have not said what specific method that they will use, although the appeal mechanism will be independent. In the current system, when someone makes a claim long after service—four or five years—because of deterioration, one then requires a civilian GP's opinion and perhaps copies of the medical documents from a civilian GP or hospital. Currently the War pensions Agency takes a view on that claim of deterioration. In the future, with the three-year rule, which is three years from the date of knowledge of the disease, many injuries will occur in service and then we shall use the Service record documents. When the person has left the Service and the circumstance arises that a new disease starts—an example is Casons disease, to which deep-sea divers are prone which leads to amputation—they will have to turn to the NHS medical system and obtain the documents. It is a fairly complex arrangement. For those people in service it will probably be more simple.

  43. Do you think that there is a spirit within the MoD to try to find in favour of the applicant, or do you sense that there is a spirit in which the examination by consultants and others is designed to deter and to minimise the MoD's liability?
  (Major House) The medical assessment of the case will probably be fairly similar. I would like to think that doctors look at a particular circumstance in the same light. The big difference is in the burden of proof. In the new MoD compensation scheme the burden of proof will be the modern one of "on the balance of probabilities", whereas on the war pension scheme for the first seven years the burden of proof is on the War Pensions Agency to show that the injury was not caused by the Service. There is a differentiation in the burden of proof rather than the medical condition.

  44. Would you say that the current claims procedure is frequently protracted? If so, why and where do the delays occur?
  (Lt Col Coltman) As my colleague has said, it depends on the circumstances. Certainly many of the death-in-service cases are dealt with very quickly so that the widow receives a war widow's pension. It is much more difficult when it is a complicated case that may have to go to appeal. For medical discharges, where the injury is fairly straightforward and well documented—for example, in Northern Ireland or Bosnia—the war pension for that would happen quite quickly. As my colleague says, when claims arise years later it can take time to get hold of all the hospital notes.

  45. Is there any way in which it can be improved?
  (Lt Col Coltman) I think after service it is difficult. People move around the country a lot. They generate a lot of paperwork if they see their GP or go to hospital. I do not have enough experience of the NHS to say whether the NHS draws all the paperwork together for each patient in one place. I doubt it.

Mr Crausby

  46. One of the MoD's stated aims within the proposal is that fewer cases will go to court. Most outside the legal profession would agree with that. It appears to make more sense to concentrate on compensation rather than on litigation. Yet, in your document you make the point that you firmly disagree with the MoD that court cases can be stressful.
  (Colonel English) The experience that we have had to date is that when an appellant has chosen to go to court in some of the cases that we have supported, for him to be deterred would be more stressful. He may feel aggrieved in the first instance and to be cheated out of the entitlement, and for that situation to remain with him for life, can be very stressful. Our experience in dealing with those who choose to go to a war pensions tribunal—we represent people at over 6,000 cases every year—is that they are assisted in those instances by our representatives. When they go to the High Court they are assisted by members of the legal profession who put their case forward. When they come to us for advice, we advise them at each stage of the process what the stresses and strains are likely to be and we ask them whether they really want to progress with it. A classic example is that recently, almost as a unique case, we supported Sergeant Trevor Walker, in his case against the MoD for compensation. He had his leg blown off while on peacekeeping duties. The situation was deemed to be war-like. The civil power lost its authority, so he was not entitled to Criminal Injury Compensation. He went all the way through to the House of Lords and is considering going to the European Court now. On each occasion he has come to us and said that he wants to progress. He would have found it far more stressful had we not agreed to take on the case because he still feels very aggrieved. We believe that where individuals choose to take on cases, it is better that they should be permitted to do so.

  47. I can understand that in a minority of cases there will be individuals who want to progress all the way. That is up to the nature of individuals. But do you think that overall going to court, and having the ability to go to court and to use civil proceedings, outweighs the advantages of a fixed term system?
  (Colonel English) Yes, I do. We have seen the settlements that have been achieved by going to court. They are significant; they are significantly higher, in the cases that have been successful, than what was offered.
  (Major House) In relation to the war pension scheme itself, when we say "court", we mean "tribunal". One would have thought that a tribunal could be upsetting for someone in their 70s or 80s, which is predominantly the age that we represent at tribunal. I also believe that because we offer this service, we see people from the start of the process up until the result at tribunal. That result is 47 per cent in favour of the appellant, which makes one think that perhaps the decisions that are made initially are to be questioned anyway. Because we are an ex-Service organisation and because they relate to the people who are representing them, the process of claiming and going to tribunal is less stress than if they were left to swim on their own.

  48. That all depends on the extent of the fixed payment system. That is more an argument that the fixed payment system is inadequate. Is it not better to negotiate an adequate fixed term system rather than spend more and more resources on litigation?
  (Colonel English) Not if it is going to produce a fixed payment system which is going to disadvantage those who are entitled to a certain sum of money for their injury. What we will be looking at now is something less and those who are applying for it will be very disadvantaged. As Tom has said, 47 per cent of all the cases that we take to the War Pensions Tribunal succeed.

Jim Knight

  49. Just to help me, can it be that the tribunal or the court awards different amounts of compensation for similar cases? Is there a consistency in the awards that are coming through and, if not, is there a case for saying, "Well, let's find some consistency, but still have an appeals process whether or not there is eligibility"?
  (Major House) There is no difference in the payment. If somebody wins, or "successful" is probably the better word, at tribunal, they are then `medicaled' to find out for that condition which is now acceptable what percentage of disability it is reasonable to award, so a person who has got a knee problem gets 40 per cent straight off, and to a person who has had it turned down and goes to tribunal, once it has been accepted, he or she will get the 40 per cent rate, just the same as the other person, so there is no difference in level of award.

Syd Rapson

  50. Could we go on to appeals as such. In your review document, which is very handy, a part says, "How shall we handle appeals?" and it is very interesting reading. The new proposals are that the MoD should administer the whole scheme and that must concern you as well as it does me. In this review, you express some real concerns about the administration of the new scheme being within the MoD, and I would tease that out. What arrangements would you prefer for administering the scheme and for appealing against decisions?
  (Colonel English) I believe that was written before the War Pensions Agency came under the jurisdiction of the MoD, so we are really whistling in the wind on that now. We would have preferred not to have seen it come under the MoD. Our real fear is that the MoD becomes judge and jury. The tribunal system is an excellent system and has worked well for the ex-Service community and we would not wish to see that tampered with in any way. As long as that stays in place, I believe we have got an assurance of its independence, as it is now, and that the appellants will be treated fairly.
  (Major House) The independence, it is seen to be independent even though it may not be independent and also the War Pensions Agency, believe it or not, is seen to be independent to Tommy Atkins on the ground, not that he always likes it, but he does see it as divorced from the MoD. The tribunal system, as Colonel English said, is one that we support. The judgments that come from it are generally fair. I have had my appointment for ten years and not once have I had to complain about the judiciary at all, and any cases which are disputed are then followed to the High Court, and we have had a few of those. So the system does work and it is one that we do not want to lose because our client base actually believe in it and they believe in British justice.

  51. Could I just clarify that the Pensions Appeals Tribunal, PAT, is actually, it is suggested by the review, to take over all appeals? I would see that, from what you were saying, as being a good move. Am I misreading that or is it going to be worse?
  (Colonel English) We have great faith in the PAT. We are faced with a situation where it has moved on from when we first made our comments on the report, but the MoD's War Pensions Agency has moved as an agency within the MoD and that is a fait accompli which we have had to accept. To date, they have not lost any credibility and we will hope that they do not, but we will monitor it very carefully. Now, the PAT we believe to be an organisation that has credibility, is trusted by the ex-Service community and I believe that if cases are handled there, if all the cases go there, that will be something that will be accepted.


  52. In the light of the fact that you have changed slightly from the original written memorandum, I have just had a word with Carol here and rather than putting in two addenda, in the light of what you have been asked today and in the light of changing events, you might want just to word process it and send in another one, if that is okay.
  (Colonel English) Yes, certainly[2].

Mr Hancock

  53. Can I ask a question about the appeals procedures. Some of them take an awful long time for a case to be heard and they also take a long time for the person appealing to get the evidence together and that is sometimes very tricky because it involves more than one doctor and it means getting other witnesses involved, and there is sometimes a great expense in putting that together. What does the Legion offer in the way of support for somebody who would seek to make an appeal in difficult circumstances and how do you make judgments about what you can and what you cannot do to help? Also do you think there is a need now for a form of financial assistance being given to people to be able to run these appeals their full course?
  (Major House) The support that we give the appellant is total. If somebody comes to the Legion and wishes to be supported at tribunal, we accept without fear or favour. I am not in the business of being judge and jury. Many a time have I read a statement of case, the evidence that goes to the tribunal, and decided in my own mind that that person does not have a hope in hell. They go to tribunal and, funnily enough, because of the evidence that is given on the day, they will get a pension, so I am not judge and jury. The support that we give the appellant is that also we have four consultants, medical consultants, who give their opinions for free and accompanying any of our statements of case is medical evidence that might support that case and the appellant again can use the Legion by telephone, by visit or us visiting them to support them right up to the time that they actually go to tribunal and at tribunal at no cost to the appellant

  54. But do you think there is a case to be made and will you support any former Serviceman or only members of the British Legion?
  (Colonel English) We support any ex-Service person who has served for more than seven days in the Armed Forces. That is our criterion for assistance, so virtually everybody. Tom has mentioned the support we give in terms of representation and through the medical consultants who are eminent in their own fields and who give their advice totally free.

  55. Would they actually be meeting with the appellant or would they be basing their evidence on written evidence supplied by other medical practitioners?
  (Colonel English) Essentially they are doing it from written evidence which is presented from the file.

  56. Is their evidence not somewhat weighted in that respect?
  (Colonel English) I believe it to be totally fair because it is the evidence which would go forward to the tribunal. If the individual has a situation in which they wish to add to their case, that medical evidence is included in that which goes forward, so it does not just stop. If they have got additional medical evidence to be considered, that can come forward and go forward on the file that comes to our consultant and it then goes forward to the tribunal.

  57. If a case went from the tribunal to the courts because you were challenging the tribunal's decision, would you then support financially that claim?
  (Major House) Normally in war pension claims, one is given leave to appeal. If leave to appeal is given, then our costs are paid for anyway and we do have a system where we have some lawyers and indeed our own barristers who will take that right the way through.


  58. But they do not give their services for free like the doctors.
  (Major House) No, they do not.

Mr Hancock

  59. What do you say in your own publications about what you will do in war pensions because I read with interest your—
  (Colonel English) Service guide?

2   The Legion's confirmed position is that the 3 year time limit should apply to civil compensation claims only. The Legion would resist any attempt to introduce this restriction for War Pension claims. Th MoD has been made aware of this amplification. Back

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