Select Committee on Social Security Minutes of Evidence


Examination of witnesses (Questions 100 - 120)

WEDNESDAY 14 APRIL 1999

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

Mr Dismore

  100.  This is the point I was making. Part of this study is to identify some of the problems and if new legislation is needed or new statutory instruments are needed you should be saying we want to see these things changed. I am not saying it is like dragging eye teeth out of you but we are putting these points to you and there does not seem to be any proactive drive towards change to take the Agency forward. All of the things I have been raising with you in earlier questions are things I would have thought you would be thinking about yourself. The way you operate within the service fraternity seems to be a very closed world and you are not looking more broadly at some of these other issues or drawing lessons from what other parts of the social security system have been doing, for example. Every week we see great chunks of social security statutory instruments coming through, but very little about the War Pensions Agency or a drive to change. Is there any forward strategy to look towards changing some of these very old ideas and policies?
  (Mr Hextall)  Two things. One is I think there are two aspects of driving forward change. I would challenge anybody to be driving forward change any faster than I am doing.

  101.  That is organisational change not policy changes.
  (Mr Hextall)  Operational change is what I am driving through. I understand and accept that there are policy changes that relate back to when the policy was originally developed. I believe the means of achieving this policy change is through the Ministry of Defence review of the service compensation scheme. In the memorandum we said it was announced in December 1998 and we should have said 1997[4] when that review was announced by Dr Reid and it is really that review that is looking at simplifying the compensation scheme for the future.

Mr Dismore:  I want to come back to that later.

Mrs Humble

  102.  Can I come in on that because I did notice the deliberate mistake there? I recollected last year being told first of all that the MoD review was going to be reporting in the summer, then the autumn and now it is going to be some time or other in the future. I do think there are opportunities here to look at the whole of the picture of compensation schemes for ex-service men and women, how the existing war pensions fits into that and certainly I do know that the local union, the Public and Commercial Services Union are very keen to look at that as a total picture and say here we have expertise and staff who are dealing with these sorts of cases. Can we use them in perhaps new and imaginative ways? How can your staff at Norcross take on new responsibilities that might arise out of this review and look at a whole new way of delivering a service? I want to know how you are involved in that and whether as well as contributing to the Prior Options Review you are also contributing to the MoD review and saying, "Look here, you have got this group of people who have got all this expertise, which is surely relevant to what you are doing, so how can you best use us?" There are opportunities for the future.
  (Mr Hextall)  Yes I agree and the MoD review is an MoD led review. Our role has been to inform that debate in the same way that we are informing the Prior Options debate because we do not want the new scheme to recreate the complexity and confusion that we have been talking about that arises from the existing scheme so our role has really been to inform that debate and that emerging policy and procedure review.

  103.  I know I am getting frustrated about all of this. We are waiting for the Prior Options Review, waiting for the MoD review, waiting to see what is going to happen. What sort of timetable are we looking at?
  (Mr Hextall)  The same timetable you have described is the only timetable I have got. It was announced in December 1997. That was not a deliberate mistake in the memorandum—it missed the proof reading. Yes, when I joined it was going to be imminent and I am still told it is imminent so we are in the hands of the MoD as far as that is concerned.

Mr Dismore

  104.  I was going to come back to that a bit later on, I think I probably still will do. Before we leave the overall picture, can I be assured that the input you are putting into that review is not simply organisational and operational but is looking at some of the fundamental policy issues like the one I mentioned and a few more I will be raising shortly and is looking at the whole picture?
  (Mr Hextall)  Absolutely. I think the main focus for the first part of the review has been policy issues and developing policy. We have been feeding in probably since much later than that anyway as far as the administration of the scheme is concerned and I do know that they have been examining comparisons with other compensation schemes. You mentioned the fire service earlier and I do know they have been making comparisons with other schemes in the development of this new one.

  105.  Can I be clear about how you deal with cumulative disability where part of the disability is due to war service and the other is wholly unrelated? If I could put that in the context of the industrial injuries scheme. If somebody has lost an eye already and then they lose a second eye in an industrial accident their assessment is based on the fact that they are totally blind. That is taken into account as the level of disability rather than the fact they have just lost one eye. Would you approach it in a similar way?
  (Mr Hextall)  It is not as straight forward as that. Could I ask Dr Braidwood to respond?
  (Dr Braidwood)  I think what you are describing, Mr Dismore, is the principle of paired organs which is also called greater disablement.

  106.  Not necessarily in that context but more generally how you deal with the two linking?
  (Dr Braidwood)  The particular issue you discussed was noted very early on in the life of the scheme and in 1947, the Hancock Committee set out an approach to that which very much encompasses what you said. If an individual has lost an eye—this is extremely unlikely in a service setting because of the need for people in the services to clearly be physically fit. So the scenario of a man going into service with one lost eye is not one that we see. Should an individual lose an eye as a result of service and subsequently lose the other eye as a result of some non-service related disablement then there are special rules which apply to the assessment of disablement. There is an approach called paired organs and there is another approach which is to recognise greater disablement. In general, the other principle which is relevant is that case law, established in respect of causation. Where you have a service related cause as a possible cause of the claimed disablement, although it may not be the only cause, then that is enough for the claim to succeed. A cause is the cause.

  107.  For example, if we were looking at a back injury and then a growing problem with a back injury through the ageing process, how would you treat that? Would you look at the cumulative effect of the disability or just the bit that related to the service?
  (Dr Braidwood)  I think, if I may, it is rather difficult to do it without individual case-specific facts because that is very pertinent. The legislation does lay out how assessment is to be carried out. This is by comparison with a normal, healthy person of the same age and gender. So there is no general increase in disablement as a result of ageing. That was also something covered by the Hancock and McCorquodale Committee reports—that is not to be included. It may be that the attributable condition itself deteriorates and it would be a matter of looking at the particular case specific facts.

  108.  If somebody had a back injury in service or had a bad back to start with and had a worsening of the back in service or the other way round had a back injury in service and then later had another back injury, how would that be treated?
  (Dr Braidwood)  You may have an injury which is attributable to service. If the back injury is attributable to service I think it is really rather inappropriate for me to give a sort of general guideline because the process is to look at individual case-specific facts. With an attributable injury it is very likely that you have to focus upon that disablement due to the attributable condition. You will be accepting that major responsibility for the disablement is likely to be service linked. If, on the other hand, a person comes in with a congenital problem and there is an aggravation of that after the date of service release, then any worsening of that condition, you have to be very careful in assessing the evidence to assess only that part of it which is due to service.

  109.  So you would not reflect the fact that the top-up part that relates to service results in a greater degree of disability compared to somebody who does not have a bad back to start with or later?
  (Dr Braidwood)  You might depending on the case specific facts.

  110.  Is this similar to the industrial injuries scheme?
  (Dr Braidwood)  It is not entirely similar but it is broadly the same.

  111.  I want to talk about this in the context of noise induced deafness because I have done quite a lot of work on deafness in the industrial sphere and my understanding of noise induced deafness is that whilst you may have presbycusis or something like that which would give you a certain degree of deafness inevitably, either later or wherever in your life, if you have noise induced deafness on top of that that may be due to your industrial service or in this case war service but the cumulative effect of the presbycusis plus the amount attributable to your service is far greater than the small part that is actually attributable in its own right. One of my concerns about the way that this whole debate around noise deafness has been treated is that there has been a false distinction drawn in my view between the attributability of the percentage hearing loss in dBA and the actual level of disability that is the result of that. How do you answer that point?
  (Dr Braidwood)  I would like, if I may, to provide you with a note.[5] If I could just say quickly (because it is as you rightly say a very complicated argument) the war pensions scheme sets out clearly that war pension is awarded for disablement due to service. The glossary attached to legislation defines disablement and the definition is, "physical or mental injury or damage or loss of physical or mental capacity". I would ask you please to note that definition. The definition, as we said, like the rest of the legislation is very old and all the words "disability", "handicap", "disablement" have both a general meaning and what has become a much more particularly specified meaning. Largely as a result of the World Health Organisation who in 1980 established a glossary of definitions in order that people in relation to medical legal work and perhaps more importantly in relation to rehabilitation, should use common terminology. By their definition the war pensions definition of "disablement" is very closely aligned with "impairment". It is different from "disability" which is a much more "individual to the person" concept. That means then that the War Pensions Scheme focuses on injury done or detriment done. It has always been the policy (and indeed the legislation) to focus upon that and to consider in the assessment of it not the individual effects on the individual who had suffered the injury, but rather the effect on the median. Disregarding matters such as whether he was a concert pianist or a clerk in the DSS, these sort of individual circumstances. Because clearly while it is absolutely right that the impact of the same injury on any individual is likely to be unique to that individual—the scheme is unable to address that—it looks at disablement, which is impairment. Incidentally, as you noted, part of the complexity of the Scheme, and Mr Hextall has said it is modern in a way in respect of the welfare Scheme, is that it is also modern because the scheme predated the welfare state and the whole concept of a Social Security scheme because it has all kind of add-ons. It has a set of allowances which we would now recognise civilian equivalents of, which were designed to look at the disabling effects of the injury done, added to the principal disablement benefit, which would be given to those pensioners who were most severely disabled by their attributable condition or their aggravated condition. That is the bit that looks at disabling effects. When you take impairment in relation to hearing loss you are talking about hearing threshold shift. Much of the debate that has gone on recently first of all internally in the Department in terms of the literature and getting expert opinion, provided evidence that if you take noise injury deafness it produces in some cases, not all because there is an individual susceptibility to it, noise induced permanent sensorineural hearing threshold level shift. When that noise injury (which for our purposes is at the end of service) disappears, that does not increase. That is our present understanding and that was confirmed by the expert review. The other point which is important which is one you alluded to was, "Okay, we can accept that, but what happens when the person gets older or indeed has a virus or atherosclerosis or something else that might affect his hearing?" The evidence on that point, too, was examined carefully. In the domain of impairment or disablement, as defined in legislation, the conclusion was, that present evidence, and one has to always couch it in these terms, is that a reasonable doubt is not raised by reliable evidence, that deafness due to noise induced hearing loss, sensorineural hearing loss due to that and that due to age are more than additive. That being so, we have to concentrate on the service attributable noise injured related deafness and are unable to give account for any other part of it.

Chairman:  Can I make an appeal on behalf of the shorthand writer? For somebody who does medical science between two experts it is fascinating but I am concerned that the shorthand writer might be struggling with some of these medical terms.

Mr Dismore:  I would like to probe this in more detail but we have not got the time.

Mr Dismore

  112.  There are criticisms of the reviews that have taken place of which I am sure you are aware. The one point I would raise is the burden of proof argument which we explored earlier today and my concern is that the burden of proof test has not been properly applied to the way that we are looking at medical evidence on noise induced hearing loss. I know the committee which chaired this came forward with very strong conclusions but certainly internationally there is evidence that points the other way.
  (Dr Braidwood)  May I just say as part of the present review that has just taken place we did request some international comment. We were not able—this was a very sincerely conducted exercise I assure you—to identify any such evidence. I would be very glad to know of it, that is part of our approach to this. No line is drawn under noise induced hearing loss or indeed anything else and any new evidence would be very helpful.

  113.  I understand the British Legion are in the process of obtaining it.
  (Dr Braidwood)  That is fine and we will be very happy to look at that.

  114.  Rather than go into that in more detail perhaps I can go on to some of the bigger picture and that is the relationship between the separate division of the War Pensions Agency in the particular context of some of these difficult cases. I was going to try and explore Gulf War and radiation damage cases with you as well, both of which are quite important and very problematic for constituency members when we get these cases brought up with us and more generally as policy issues. The finger starts to point back to the medical evidence and how that is collected. Can you give me a quick rundown in relation to that general point?
  (Dr Braidwood)  May I just say that I would be very happy indeed to provide you with background information on the two specific topics you mentioned. I agree that this is not easy. When this scheme first came into being medicine was an easy subject. Things were constitutional and therefore could not possibly be service related and they were not attributable. That probably was the intention of the scheme, that the awards did relate to damage done in war. Since then medicine has moved on. We have learned much more about the interaction of the constitution and environmental influences and the whole business has become more problematical. The function of DSS medical policy advice, in terms of Mr Hextall's war pension Medical Advisors, is that in addition to decisions in the scheme being made within the law and within any policy, (of which there is not very much that relates directly to medical matters), decisions need to be medically sound and as far as possible reflect generally accepted medical understanding of conditions. DSS medical policy, which is headed by the Chief Medical Adviser to the Department, has a responsibility for writing guidance, advising on individual cases, providing medical appendices which aim not to provide a Departmental point of view but to provide a general understanding, a consensus, a reflection of that as it is currently understood at any particular date. It should reflect contemporary general understanding, looking at both arguments which would be in support of environmental cause, for example, and that against it and coming to some kind of properly informed, conclusion by literature, search, by consultation with experts within the United Kingdom and indeed well beyond that in reaching those judgments. These are of course in the public domain.

  115.  I have seen a lot of that evidence as well but what I am concerned about more generally is again going back to the burden of proof argument and whether that is being applied fairly in the context of the Gulf War cases and the radiation damage cases. Going back to the burden of proof test which you outlined earlier on, what I am concerned about is that is not being applied evenly across the board in relation to those two particular categories.
  (Dr Braidwood)  I would have to say I disagree with you there.

  116.  I thought you might!
  (Dr Braidwood)  The Gulf cases to date have all been governed by Article 4. The date of the Gulf War was January 1991 and therefore you might say, "That is not right doctor, we are now eight years from then", but remember the clock starts ticking in terms of standard of proof from the date the man leaves service. There remain a significant number of the 53,000 troops who served there still in service so as yet I have not seen a case in the 2,800 claims from Gulf veterans which have not been governed by Article 4. Even when it changes to Article 5 I do not see that as being a major problem.

Chairman

  117.  That is when the onus of proof changes?
  (Dr Braidwood)  Indeed. Forgive me. If I may say so, the whole question of Gulf-related illness is a very problematical one. We are some now some eight or nine years after the war and some six or seven years since people started complaining of various degrees of ill-health, a whole spectrum of rather vague, ill-defined problems. In this country we have rather belatedly, some people might say, begun to produce reports and papers. The Americans, as ever, began rather earlier but there has been from the outset very good cooperation and sharing of information. They have to date spent about $120 million on researching the Gulf War. Late last year the Communicable Disease Centre at Atlanta produced an attempt at a case definition of Gulf-related illness. They were unable to come up with something which they found to be unique to Gulf service. Although they have acknowledged, as indeed I hope our certification always has, that there was a significant number of people who had served in the Gulf who complained of disablement following that. Later on at the beginning of this year two papers came out of Britain; a set of papers from King's College and Dr Coker's MoD assessment evidence. Both lots of evidence do similarly confirm a higher rate of symptoms and ill health reported in Gulf veterans. But it is not unique to them. There is also ill-health amongst people who served in Bosnia, which was used as one of the control groups in the case study, and also in people from the same generation who did not get deployed abroad at all. It certainly does not say that there is no single specific Gulf illness. It says, to date we have no evidence of such, despite quite considerable efforts to find it. The evidence does suggest that active service (in particular) is associated with ill-health in some individuals. That is the position we are at.

  118.  Does that satisfy your burden of proof test?
  (Dr Braidwood)  To my knowledge all the disablement in Gulf veterans which we believe is causally related to service—and there is a great deal of it—is accepted and certified. We use ICD 9 and 10 category which is called SSIC which means "signs, symptoms and ill-defined conditions" simply as shorthand to allow us to accept. Should evidence emerge which allows us to say that there is indeed a specific Gulf illness we have legislative powers and I am sure it will be our practice to re-visit these cases and change the label accepting it under that.

  119.  I am in danger of losing a quorum. Is there some way we can get a note on this?
  (Dr Braidwood)  I would be very happy to send you a note.[6]

Chairman:  Will you settle for you that?

Mr Dismore:  I will settle for that.

Mrs Humble:  Further briefing notes would be useful as written submissions.

Chairman

  120.  This always happens to us.
  (Dr Braidwood)  I am very sorry, Chairman.

Chairman:  Au contraire, it is extremely important and very valuable evidence and we appreciate it and appreciate your expertise in this and Andrew is a particular expert as well. We will lose a quorum at one o'clock and we did say we would discharge you back to your trains for the north by one o'clock. I think I have got no alternative but to draw reluctantly the public proceedings this morning to a close. Thank you very much. It has been a fascinating session, an important session. I do not want you to leave us with the feeling that we are being hyper critical about all of this. There are obviously some problems and I hope we have been able to put those robustly to you. We only do that because there are people who know a bit more about this from day to day who have been asking us to raise them with you. We wish you well in the important work that you do and thank you very much for your evidence this morning. Thank you for your attendance. The public session is now closed.


4   See Ev p 5. Back

5   Note by Witness: Supplementary evidence to be submitted on "assessment of noise induced hearing loss". See Ev pp 42-43. Back

6   More correctly-noise induced permanent sensorineural hearing threshold level shift. Back


 
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