Select Committee on Social Security Minutes of Evidence


Examination of witnesses (Questions 40 - 59)

WEDNESDAY 14 APRIL 1999

MR GORDON HEXTALL, MR ALAN BURNHAM, and DR E ANNE BRAIDWOOD

  40.  It is purely for people who have made a claim who are unhappy with it, it is not the nature of what they might have or what they can then——
  (Mr Hextall)  No, no, this is the time after the decision has been given that they are able to make an appeal. One of the reasons why it becomes protracted is because that case then goes off to archives, and if they appeal—as they currently can do—several years later then not only is it difficult to get hold of the papers but the people who made the original decision are no longer around. So if we can get the appeal made fairly promptly then the current understanding of how that decision was arrived at is much clearer.

  41.  Is there anything that the British legion and such bodies say you ought to do which you have not mentioned in that list?
  (Mr Hextall)  I do not have their list to hand. I think we will have covered most of the things that they would have raised with us.

  42.  Are they happy about reducing the appeal time?
  (Mr Hextall)  This is not a recommendation. As I have mentioned this morning, we have had a report to discuss with all the ex-service organisations.

Mr Dismore

  43.  I just wanted to talk about the quality of the process. You mentioned some of the reasons for delay earlier on, but I am very concerned about a lack of flexibility, and some of this also goes back to communication. I spoke to the British Legion yesterday and they gave me one day's intake of delayed cases, and some of these look very straightforward and not as complicated as the ones you have mentioned earlier on. I have also got one of my own constituents, whom I mentioned earlier on. I do not expect an answer to the case in detail but I think it highlights a number of problems, and I would like to run them the timescale of this particular case. From my experience of dealing with these cases, both here and before, when I was a personal injuries lawyer, I do not think it is that atypical, although I think it probably takes the wooden spoon from the ones I have seen. This is a case of a Mrs Wilson, and she has agreed that I should refer to her. Your reference, if you want to make a note, is PWO66849B. It is a deafness case, and it is the one I mentioned earlier as a result of picking up the Daily Telegraph. She made a claim in July 1993 for noise deafness. In December 1993 it was retitled as a different condition by the War Pensions Agency, which they objected to, but, nevertheless, it went through on that basis. It was not heard until August 1995 by the Pensions Appeal Tribunal, and the claim was rejected—which they had expected anyway because it did not match the diagnosis which they had got. In September 1995 they wrote asking for the decision to be reconsidered. In November 1995 they were told (Mr and Mrs Wilson) that the Agency would accept a medical report to support the view that the diagnosis was wrong. They supplied this in January 1996, saying it was due to noise exposure. In February 1997 they wrote again because they had heard nothing for a year. In March 1997 they had a reply apologising for the delay. In May 1997 they came to see me, and I got a reply in June 1997, saying they were going to arrange a medical examination, which took place on 25 June 1997. The doctor took six months to report, and in April 1998 they were told the papers should be going for a joint application by the Agency and the applicant to have the previous decision set aside. In June 1998 they were told they would hear in two weeks. In July 1998 they were told they would hear more in two weeks. They were then told, in July 1998, that the papers had been lost and they were starting all over again. In August 1998 they were told by the Agency "We are still waiting for something to happen", and in September 1998 they were told the papers were going forward and they will hear in the next two weeks. In November 1998 they were told a letter was coming, and in February 1999 they were still awaiting that. On 15 February they were told the papers are now being typed and you should hear soon, and they have heard nothing since. My concern about this—and this is not atypical from my experience—is that people are continuing to try and find out what is going on in the case as they are not being told, and, frankly, this shows people being messed about somewhat horribly, in my view. It all comes back to the original decision which was taken by somebody to redesignate their case medically, which they did not agree with in the first place, but was pushed through on that basis. My concern about this is that it illustrates a complete lack of flexibility and an inability to communicate properly with your clients. I have got another batch, which I will not go through, from the British Legion, which are very similar. This looks, to me, a relatively straightforward case if it had been dealt with properly in the first place, but the Agency does not seem to be able to get its act together, once it has got locked into this system, to put right a mistake which was made right at the beginning, which was a pretty obvious mistake. As I say, I do not think this is atypical, based on my experience of dealing with the War Pensions Agency, both since I came here on behalf of constituents and previously on behalf of clients when I was in practice as a lawyer.
  (Mr Hextall)  I clearly need to take your case away. I do not agree that it is not atypical, because of the cases that I have looked at I can obviously find cases similar to that as well. Amongst the steps in that process that you have just described, you mentioned a doctor taking six months to report. That is one of the recommendations I was talking about earlier, because typically that is where we have gone to a regional independent consultant, and that is one of the reasons for delay, because we do not appear to be top of their list. We ask and pay for the report but we do not appear to be top of the list in getting reports back. It is one of the unfortunate links in the chain where we are dependent on external sources of evidence.

  44.  This goes back to another point that the Legion made, that these clients are getting older and older, and this is now a very old lady. The way you are going she is going to die of old age before you get the thing finalised.
  (Mr Hextall)  That is clearly unsatisfactory.

Chairman

  45.  However, you can give us an assurance that the case history that Andrew has gone through speedily is atypical? Some of the organisations with whom we have had correspondence have been able to produce quite a few cases. There is a bit of concern that there are more of these kinds of cases than, perhaps, anybody would like to acknowledge.
  (Mr Hextall)  As I say, I would be happy to take those away. I do deal personally with chief executives complaints, and I am dealing with about 16 of those a week, of which about 8 are complaints that might be similar to that. So there are those cases around, but in terms of the 12,000 new claims that we deal with in a year, they are a very small proportion. However, I am by no means happy about it.

Mrs Humble

  46.  Picking up again on the appeals that are involved in many of these delays, I have got some outstanding constituency cases that you are dealing with. Earlier this year I had some people who approached me about confusion to do with the date to which the claim would be backdated if the appeal was upheld. It was linked in, again, to delays within the procedures. The allegations were, if I recollect this correctly, that you took this length of time to sort out the original claim and then people would put in an appeal. There was a length of time before they had acknowledgement that the appeal had been accepted and then a length of time when the appeal was then being taken to be looked at. There was confusion about, when the appeal was actually upheld after this great long length of time, the date that you would backdate the claim to. Would it be the date that you accepted the appeal as being an appeal that you were then looking at, the date on the letter of the appeal, or the date of the original complaint? If these things take months and months, people could be losing out on benefit. I just wondered if you could clarify what the situation is.
  (Mr Hextall)  Can I ask Dr Braidwood here because the backdating rules have changed over the years?

  47.  It was within that context that people were coming to me. They were not clear about when the rules had changed and whether or not it would affect their individual cases. I am not going to raise individual cases now because I am corresponding with you about it, but there was certainly some confusion in the minds of three or four people at the same time who came to see me. I would welcome some sort of clarification.
  (Dr Braidwood)  It is indeed a very confusing and difficult issue. That is perhaps one of the reasons why from 7 April 1997 as part of a policy simplification initiative there were changes and one might say regularisation of the rules on backdating. Simply so that in the public domain from the point of view of admin officers in the Agency and of course the public, people could understand much more easily what was going on. As you know, in social security as a whole there are rules about backdating and certainly the practice in war pensions has always been traditionally and indeed remains following the changes of 1997 significantly more generous than in other parts of social security business. Basically before 7 April 1997 what I suppose one ought to refer to as normal practice was that payment was made from the date of a claim or the date of an appeal or the date of an application for the review of a decision. That was the basic ball-park situation. There were, however, facilities within the law—there is a reference in the Service Pensions Order in Article 65 which relates to this—which allowed the Secretary of State discretion to depart from that normal policy. Obviously, as you understand ladies and gentlemen, part of the difficulty about war pensions is that it is an individual case determination and as such, having given the Secretary of State leave to use discretion, one had to operate that on the circumstances of each individual specific case. But, by and large, the sort of issues that had an influence on this were whether or not an individual had some kind of physical or mental disability or problem (not necessarily related to the war disablement) which prevented them from making a claim earlier. That would be a consideration. There would also be a consideration if case law in war pensions upheld a different understanding of some previous understanding of the law. That would be an influence. Similarly, if it were felt that the understanding of the aetiology of a particular medical condition involved had changed during the period since the original claim, that could influence what is called a recognised date of change of medical opinion. The other sorts of things were that if evidence pertinent to the claim which had at the time of the earlier claim not been in the public domain, and the man was not able to get it, (perhaps as a result of national security), had eventually become available, then that could have an influence on the date to which the claim was backdated. There are other things. If there should be official error or misdirection then claims could be backdated with no limit and, similarly, there was a White Paper review in August 1943 at which the standard of proof in war pensions (which in itself is a whole chapter) had become significantly more generous. This does occur occasionally and if we are called upon to look again at a case which had origin before that date and if it was felt that it would have succeeded in the light of that change in standard of proof, then backdating may go to 16 August 1943. As you can understand, it was really very complicated but the 7/4/97 legislation does enshrine all of that in writing which is available both for the adjudicators and for the public.

  48.  No wonder my constituents do not understand it! My goodness me.
  (Dr Braidwood)  I am sorry about that.

Mrs Humble:  I am going to await with interest the reply I get from Gordon when he replies to my letter.

Chairman

  49.  On the section on appeals tribunals, can I have two quick reactions? Would you support as an Agency a proposition I think put by the Legion that Pensions Appeal Tribunals should have more powers so they can, for example, recommend a level of assessment themselves so that it could cut through these delays? Is that not something that is quintessentially self-evident and sensible and would you not support that as a change to be considered?
  (Mr Hextall)  I would certainly support consideration of that. Whether it is feasible or not I honestly do not know offhand.

  50.  Whether it is feasible or not? How can it not be feasible?
  (Mr Hextall)  In the situation where someone might need a full medical. The Pensions Appeal Tribunal may say in this case which has previously been rejected we think this man has got an injury which is attributable to service. The next step then is to try to assess the degree of disability. That will sometimes involve a medical.

  51.  All I am suggesting is that they could have an increased discretion to enable them to do that. It is an additional power. Of course they would not be using it in every circumstance but there are circumstances it seems to me, and I am a lay person, I am not a expert, you are much more closely involved in it, but it would seem to me that is a quintessentially sensible suggestion.
  (Mr Hextall)  The principle sounds fine and I agree with the principle. The practicality depends on the nature of the illness and disability. It depends who you have got on the Pensions Appeal Tribunal, their specialism, that sort of thing.

Mr Dismore

  52.  I was going to back up the Chairman on this because in the industrial injury scheme when they go to appeal tribunals the doctors there do an examination of the claimant and give a percentage assessment there and then on form BI132. I do not see why it cannot be done for war pensions. Who sits on the appeal tribunal?
  (Mr Hextall)  Three people, one is legally qualified, one is medically qualified and one is an ex-service person.

  53.  Similarly, is it not possible if a new condition emerges during the discussion of an appeal that that could be taken on board at the same time?
  (Mr Hextall)  It is at the moment.

Chairman

  54.  If you give positive support on the record to matters of that kind I think it would weigh heavily with the Secretary of State and policy makers considering this if you were quite enthusiastic about trying to pick up some of these proposals that have been put to you.
  (Mr Hextall)  They would require the Lord Chancellor's Department's involvement.

  55.  Understood. Finally, Julie raised an initial question about appeals. On the record would you say a sentence or two about the independent study? I am interested in this and I am sure some of the voluntary groups working with you would be interested to know. I understood you to say that you have just received this. What is the process for consultation? What is the timetable? Will they get chances to see this? Will they be published in full? What is the process that will now unfold? You will obviously want to study it a bit before you put it into the public domain but can you reassure us that everyone will get a chance to chew over this and have a proper say as to what the outcomes are in terms of the recommendations?
  (Mr Hextall)  I am in the process of mobilising a team to take the recommendations forward as a programme of work because, as I said earlier, it involves some policy, some medical, some IT, some process recommendations and recommendations that go outside of the Agency. So the process from now is to consult with all of the groups involved, the Lord Chancellor's Department, the Court Service and service organisations and our policy people and to test out the feasibility because these are recommendations that are made as a result of eight weeks' fairly in depth work but still it is eight weeks' work and therefore the recommendations do need to be tested out for feasibility. When you mentioned is it going to be made public, I will be copying it to the members of the central advisory committee.

  56.  All of it?
  (Mr Hextall)  The report that I have got from Ernst & Young, yes, and the advisory committee meets again in June so I expect there will be an opportunity to discuss the report at that meeting.

  57.  What worries me about that answer is—and we are going on to Prior Options in a minute—if there are lessons to be learned from that and Ministers are being invited to take decisions about a Prior Options Review before the summer recess as I understand it and you have got this important piece of work which you are only going to take to a proper consultation start period in June this year, I would be very nervous of missing the opportunity of taking advantage of things that may or may not be in that report and using them for changes which properly should be taking place in the Prior Options Review. Are you not worried that you are going to miss the bus here?
  (Mr Hextall)  No, I think the recommendations about decision-making and appeals need to be done irrespective of what happens as a result of the Prior Options Review. They are about the process of improving services for the war pensioners.

Mr Leigh

  58.  Obviously you have been under a bit of pressure this morning and the trouble with these sort of meetings is naturally all the briefing comes from ex-service men's organisations but we have had no briefing from the taxpayers who pay for all of this of course. Originally I imagine war pensions were based around people who had massive injuries where for example they lost both their legs in an explosion and all the rest of it. Now what we will be dealing with it seems as we, hopefully, move into a more peaceful age—although that does not seem to be borne out by the events of the last two or three weeks—is much more a pattern, is this right, of people who are approaching retirement age who may have served a very long time ago and suddenly, as you were mentioning earlier, deafness comes on or some sort of disablement which may be a fairly minor disablement compared to the sort of disablements we were talking about in the past. I want to receive reassurance from you on behalf of taxpayers that you are very rigorous indeed in the way you process these matters because we have got to protect the taxpayer as well. I want to get a slight balance in all of this.
  (Mr Hextall)  I think the way in which the claims are currently processed is extremely rigorous in the pursuit of evidence that supports a claim, both service related evidence and medical evidence. That is a very rigorous process. As a result of the review I mentioned we are really looking to shorten that process to eliminate a lot of time that is taken up currently so that the end result will be more efficient for the taxpayer in any event. Shortening the time has got to make it cheaper overall.

  59.  I take it that a lot of these people who were employed for long periods in industry and as a result of that they suffered deafness but 20 years before they did National Service, you were pretty strict with them? Did you turn down 99 per cent of these cases or what?
  (Mr Hextall)  The noise induced hearing loss?


 
previous page contents next page

House of Commons home page Parliament home page House of Lords home page search page enquiries

© Parliamentary copyright 1999
Prepared 23 June 1999