Select Committee on Defence Minutes of Evidence


Examination of Witnesses (Questions 220 - 239)

WEDNESDAY 13 MARCH 2002

RT HON ADAM INGRAM AND MR BARRY MILLER

  220. Many of those people might not want to submit a claim until some time after, when the full extent of the illness develops to such an extent they have to make a claim to survive financially. If the burden of proof is placed on them, and you yourself are admitting today that you do not have meticulous medical records of Service personnel in some instances, how on earth can they ever succeed in making a claim when you have shifted all of the burden of proof to them? In some instance you will not even let them have their medical records?
  (Mr Ingram) There are assertions in there—I am not a walking encyclopedia of every question ever asked and every answer that has ever been given or all the minutiae of Ministers arrangements within departments. I do not accept some of the assertions contained within there. What I will do, Chairman, is take that on board and if there is an answer required I think the best thing is to do that in writing, to take the allegations and to set it against what we are seeking to do. Something in it tells me that some of the allegations there do not stand the examination.

  221. I can assure you your junior colleague has written to me and to veterans making that very point, that their records are not available, meticulous records were not kept and so the burden of proof is on the person, who cannot bring the best evidence, which is his medical records, that were supposedly held by the MoD. Your colleague sitting beside you seems to be anxious to get in. I am sure a number of vets will be interested to hear what he has to say about that?
  (Mr Miller) There are, indeed, problems with medical records. If I can come back to your original question, Mr Hancock, the fact is that under the War Pension Scheme it is effectively the Agency which is required to prove that a condition was not attributable to service. What we are proposing is to adopt a much more common burden of proof—which is the one that is used virtually universally elsewhere in the United Kingdom—which is quite simply that the individual should demonstrate that on the balance of probability his condition is attributable. Clearly in a case where medical records are not available that is an issue that would have to be taken into account, just as it is a factor that the courts will take into account if a case ended up there because there was an issue of negligence.

  222. Sadly the MoD take that to mean many that there is no case to answer, that is what they have done up to now, and several of the people sitting behind you would agree.
  (Mr Miller) That if I may say so, Mr Hancock, misrepresents our position.
  (Mr Ingram) Statements have been made here about the Department's policy of approach relating to answers which have been given in Parliamentary questions. We all know that sometimes interpretations can be different and I do not for one moment accept that the Department, in the way in which it has been described by Mr Hancock, operates in that way. We are very careful, we are very analytical and we are very thoughtful in the way in which we tackle all of these issues. If we come to different conclusions then, of course, it is based upon our assessment, but it not because we are uncaring or indifferent or we do not recognise the importance of the issue. If the answers have been expected today based upon—I do not know whether Mr Hancock has them—the specific Parliamentary questions then I think it is better if we analyse it and look at the interpretation placed upon it and if further clarification is required to set out the Department's position that would help everyone. I am not accepting those charges against us.

  223. Just for the record then, so that we are clear, Mr Miller has just said, and admitted, that the MoD's medical records for some personnel are not all they should be.
  (Mr Miller) Indeed.

  224. We know now there is an admission of that in the MoD and it is on the record here. Is it, therefore, fair to change the burden of proof based on what your colleague has just said?
  (Mr Ingram) I am also confirming what has been said, there are gaps in the knowledge base. There is no way in which that can be recovered, that gap, because, for whatever reason, that information is no longer there. There is a danger about this because we are, perhaps, dealing with a specific series of claims that are in at present and then try to make the headlines in the back of all of that, and I think that is unfair.

  Mr Hancock: That is a bit unfair!

  Chairman: Hang on, we have 25 minutes to go. We have had the same question three or four times, the Minister has said he will respond. When that response comes if the Committee wishes to take it up further we will only be too pleased to do so.

  Mr Hancock: I am sure the Minister is glad of your protection, Chairman.

  Chairman: Can we have a new question now, please?

  225. Would you then suggest that it is right that fewer successful claimants will now emerge because of the change you made by shifting the burden of proof on to them?
  (Mr Ingram) Yes. I do not think there is any other answer than yes, because of the new approach we are adopting. It has to be an attributable injury rather than any injury. If the view is that just because someone is in the Services then they should automatically get a claim that, I think, is not a proper approach. It has to be attributable to Service. What we are seeking to do within that is to give enhanced benefits targeted on that attributable injury. I would suggest, Mr Hancock, that our approach to this benefits those who are in Service, have an injury and then get the benefit of the lump sum and the guaranteed income stream. This is an enhancement in terms of that approach.

  226. Can you explain to the Committee, and for the record, how the new system will cope with the loss or inaccurate medical records and what are you intending to do from now on to improve the system by making sure that records are properly kept?
  (Mr Ingram) I will write in detail on this.

  Chairman: We have had this question four times now, I cannot see much point in proceeding.

  Mr Hancock: You might not, Chairman, but there are a lot of people out there—

  Chairman: Mr Hancock, when you chair a meeting you run it, when you do not chair a meeting I run it.

Mr Hancock

  227. Then do not just nitpick the questions, Chairman! Can I go on then to the tariff based system of compensation and ask for your opinion. Do you think the tariff is sufficiently flexible to deal with a whole range of illnesses, particularly where there is an unpredictable time scale over which deterioration may or may not occur?
  (Mr Ingram) I have said in response to an earlier question on the time limit eligibility that a case has been made and we will examine the validity and strength of that case. We have not closed down on that aspect at all.

  228. Do you think it would be flexible enough to accept there will be a continuing deterioration which might not be readily apparent at the initial stage when an award is made but the situation deteriorates considerably? The tariff is from one quarter of a million down to £1,000. Somebody might get pitched at £25,000 but subsequently be absolutely ruined for life because of the further deterioration. Is it flexible to pick those points up now?
  (Mr Miller) We anticipate we will need to have some review arrangement, we have not yet thought that through in any detail.

Mr Jones

  229. Is that not vitally important, surely? My experience in terms of dealing with industrial injury cases is part of the compensation is either for future deterioration or future loss. Is it not vitally important that this system cannot be simplistic, as outlined here, because there are quite clearly cases, for example, let us say, breaking a leg, where there might be complications later on in life that might come out of that, surely that has to be taken into consideration?
  (Mr Miller) It is important. We will need to give more thought to how we set up any review arrangements.

  230. Is the best way of doing it in terms of the way the courts do it, in terms of a tariff based system to take into consideration what deterioration could take place later on?
  (Mr Miller) It might well be.

Mr Hancock

  231. The real concern, and I would be grateful if you could clarify the MoD's current view on this, is that somebody who has a physical disability, which forces them, one, to leave the Service and to make a successful claim has their life so disoriented by this that in the end psychiatric problems emerge which might necessitate them making a further claim. That has happened to a lot of people, particularly relating to trauma, et cetera. Is the scheme flexible enough now to accept that those people could make a separate claim based on the way in which their life and their health has further deteriorated?
  (Mr Miller) Mr Hancock, we need to give more thought to the detail of the new arrangements that we incorporate. Clearly it will be necessary for any arrangements we set up to be flexible enough to cope with the sort of circumstances you have outlined.

  232. You have published an example of the tariff system at the present time. Have you currently, as of today, following the publication of that some while ago, decided that there will have to be some significant changes within that tariff range to take on board the consultation?
  (Mr Miller) We have said that the tariff figures that we published are only illustrative. We need to give this more thought.

Mr Cran

  233. Can I pick up on one thing? It is linked back to time limits, if you are going to put a time limit of three years for people to bring a claim then you have to have some flexibility, otherwise these are going to be payments that are going to close down any claim whatsoever for future claimants or if people have left. It might be, as Mr Hancock is trying to say, something that materialises a few years later and people are not going to claim under the scheme because they are out of time. You have to take that into consideration as well.
  (Mr Miller) That is a factor.

  234. I find it remarkable that you have not even looked at this.
  (Mr Miller) It is not that we have not looked at it, we have not worked this through in the detail which will be needed before we finalise the scheme. One of the things that we needed to work on, and one of the areas was, frankly, the views and reactions that we got from consultations were going to be important element. One of the things we wanted to establish was whether our adoption of the tariff approach was or was not acceptable to the interested community.
  (Mr Ingram) Can I repeat to the Committee a phrase I have used a number of times, we are still in receive-mode. We are still receiving points of view on all of this. What I said in my opening statement was that we had to, of necessity, lay down a framework to set out our thought processes. It is not all rounded off. It is not topped and tailed. There are inputs still coming in from outside bodies and, of course, this Committee is only now—and I do not mean that nastily—giving consideration to the conclusions you will reach as a Committee, which then feeds into our final thought processes. At the end of the day that which goes up for approval then has to be set against my Ministerial judgments and decisions alongside the Secretary of State's position. There is still a Ministerial examination which has to take place in all of this, based upon the very detailed work that is done within a department and then any counter view that may be out there, and that becomes part of the process of arriving at the final decision.

  235. I accept that.
  (Mr Ingram) We have an open approach on this.

Mr Hancock

  236. My final question relates to the current position, somebody who is out of the Service today but has not made a claim but might decide to make a claim a year from now, maybe relating to Gulf War service, and the new scheme is implemented, they would be caught out, because they would have left the Service, would they not? Really there is an open invitation to say to all of the Gulf War vets, if you have not launched your claims now you ought to be able to to avoid being caught by the new regulation which will be brought in. Is that true or not?
  (Mr Ingram) I will explain it in the way I want to explain it rather than answer if it is true or not. If it relates to a previous period before the commencement of the new scheme then it is the existing scheme which would then apply.

  237. That is fine. If that is on the record then people know exactly where they are.
  (Mr Ingram) I have already said that, all claims would be set against the existing scheme.

  238. A claim made after the new scheme has been empowered but relating to service which occurred under the old scheme, would it be covered? Even though they have not made a claim at the start of the new scheme would they be retrospectively covered by the old legislation?
  (Mr Ingram) Yes. If it relates to a period prior to the commencement of the new scheme.

Chairman

  239. The answer is yes.
  (Mr Ingram) Yes.


 
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