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 appealas they currently
can doseveral 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 rejectedwhich 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 thisand this
is not atypical from my experienceis 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 lawthere is a reference in the Service Pensions
Order in Article 65 which relates to thiswhich 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 isand
we are going on to Prior Options in a minuteif 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 agealthough that does not seem to be borne
out by the events of the last two or three weeksis 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?
|