Annex
JOINT COMPENSATION REVIEW—ROYAL BRITISH
LEGION COMMENTS
1. BACKGROUND
1.1 The paper argues that as a modern welfare
state provides a wide range of financial, medical and other support,
we should change the system. It ignores completely the status
of War Pensioners and War Widows and is seeking to put the ex-Serviceman/woman
on the same level as civilians/those injured in criminal activities.
This belief is the fundamental flaw in what follows—levels
of compensation, no mention of a welfare service, no priority
in the NHS for those injuries received as a result of service.
The Government expects that our Armed Forces will be available
at anytime, to go anywhere and to carry out a wide range of diverse
tasks from helping civil authorities at home to engaging in high
intensity operations for sustained period. This and other like
conditions emphasise the need to be different and to be treated
differently. This principle should underpin everything.
2. IS A
SINGLE SCHEME
THE BEST
APPROACH?
2.1 The Ministry of Defence (MoD) have proposed
a single scheme whereby both the Service Attributable Pension
and the War Disablement Pension are incorporated into one scheme.
This will also encompass those schemes applicable to widows.
2.2 We feel to accommodate two schemes into
one would be to the detriment of those it is designed to benefit
because amalgamation of necessity will lead to compromise. At
present the DSS and the MoD apply different criteria when deciding
entitlement and it is clear from the document that the proposals
would require the adoption of MoD criteria to decide future entitlement.
This would have an adverse effect on future awards.
2.3 The MoD in their document refer to the
alleged complexity and anomalies created by the two schemes. We
believe this is overstating the case and removes an individual's
statutory right granted in the Service Pensions Order.
2.4 The MoD also suggest their proposed
scheme might also provide an alternative means of settling claims
where negligence is an issue. We firmly disagree that litigation
is too stressful to the individual. We are also concerned with
emphasis on the term seriously disabled, which implies possible
neglect and second class treatment for all others.
3. PAYMENT FACTORS/POINTS
3.1 Compensation for injury or disease due
to service would be paid by a lump sum (Armed Forces Attributable
Award (Triple A payment)). This would be tied to the severity
of the injury. This lump sum would be in 15 levels and based on
the Criminal Injuries Compensation (CIC) scheme. Although the
Tariff levels are exemplary, the paper states at paragraph 5.5
that the scheme should not be too far out with awards made in
civil life under the CIC. Again, the status of ex-Servicemen/women
is called into question. However, the principle of not paying
twice for an injury is a legitimate one so the ability to abate
either the Triple A by the amount of other compensation or vice
versa is acceptable.
3.2 The compensation for lost earnings could
either be a lump sum or a lump sum amortised in a Guaranteed Income
Stream (GIS). This payment would be related to the same tiers
as the new Armed Forces Pension Scheme (AFPS) Service Invaliding
Pension (SIP). We believe that it would be fundamentally wrong
to pay a lump sum as the compensation for lost earnings as opposed
to an income stream. There is ample evidence, which the Review
Team is aware of (and do not mention) that the South Atlantic
Fund (SAF) paid out large lump sums after the Falklands war and
the money was wasted quickly by a considerable number of individuals.
Those with mental afflictions would be in a worse state, not least
because of the really quite low level of disability at which inability
to work and employability cuts in. We are slightly surprised that
the paper did not mention the doubts already within the Services.
Once the lump sum is gone, individuals would fall back on means
tested DSS benefits (the State will be paying again) and the Ex-Service
charities, which can ill afford to pay out to cover what the individual
has wasted.
3.3 The GIS for those longer serving personnel
who are medically discharged (or die—Guaranteed Income Stream
for Widow(er)s (GISW)) could be quite small. The loss of earnings
is only worked out to the age of 55. Consideration must be given
to the tax status of the SIP (which would offset this factor if
tax free for attributable awards) or to factoring in loss of earnings
to the pension age of 65 for those worst disabled and who are
unable to work.
3.4 The burden of proof would change to
be the modern burden of proof ie the balance of probabilities.
The qualifying period would be three years and individuals would
only have one year to claim after the condition was confirmed.
These aspects represent worsenments. However, it is hard to argue
against these as these are the "modern" time constraints.
3.5 There will be difficulties during the
transition stages. There will be a mismatch between the Compensation
Scheme and the old AFPS—this was mentioned in the AFPS comment.
Anyone with an injury prior to the introduction of the Compensation
Scheme will claim on the War Pensions Agency (WPA). This mismatch
is only significant for those who are injured under the old system,
but die or are medically discharged having opted for the new AFPS.
The new AFPS has no attributable benefits, which are appropriate
for these two categories.
Although in time this will go, the mismatch
could linger for a considerable time for some individuals.
3.6 Should the serviceman/women be medically
discharged there will be a GIS (tax-free we think) based on the
severity of the injury. Those that serve on or who leave normally
will not receive this element but they, of course, will be earning
their pension under the AFPS. The GIS is where the three Tiers
come into focus again. Tier 1 would have no GIS (and would not
receive an SIP, although they may have earned an immediate pension).
The GIS would suffer some abatement by a lump sum equivalent amount
of the SIP, but some of the SIP does reflect what is earned in
the normal way. The GIS would be index linked. It is very difficult
to estimate the value of the GIS. The formula (paragraph 6.7)
is not exposed to us.
3.7 The Tariff Scheme proposed by the MoD,
consisting of some 15 areas for specific compensation, appears
in tables attached to the consultation document, which clearly
shows the financial disadvantage in the longer term of lump sum
payments as opposed to ongoing pensions for the same disablement.
4. HOW SHOULD
WE HANDLE
APPEALS?
4.1 The document proposes an appeals system
but favours the Pensions Appeal Tribunals (PAT) rather than the
existing Internal Disputes Resolution Procedure (IDRP) required
by the Pension Act of 1995 which is an in-house system.
4.2 All parties accept that the DSS and
MoD operate different criteria for entitlement. We suggest that
the present number of appeals on MoD decisions are insignificant
compared to the total handled in any given year by the PAT. The
PAT operate on statutes based on DSS criteria for eligibility
but it is not clear how the present MoD proposals could be reconciled
to the existing Tribunal procedures. Furthermore the MoD document
refers to "appeals against lump sum awards" which implies
that only this aspect of the new arrangements are challengeable
in court.
We feel that if PAT are to be the Court of Appeal
their remit must include all MoD decisions in this area.
5. TARIFF DISCUSSION
5.1 This is in levels one-15, one being
the worst injured. These levels are in Annex B and relate to CIC.
Although the title in the Annex is "Exemplary", the
paper does state at paragraph 6.3 that the awards will broadly
be in line with the CIC Scheme. They are too low. The Law Commission
has called for a doubling of current rates at the top end and
a rise by half at the bottom end of the scales eg total blindness
to increase from £105,000 to £210,000. The tariff only
recommends £75,000, which shows how low the figures are.
There seems to be no index linking. The CIC system has been discredited.
5.2 The paper fails to mention the CIC (NI)
scheme, which exceeds the normal CIC schemes by 20 per cent (this
is important as presumably if a person selects the CIC scheme
for their "compensation" they may not have access to
the MoD compensation").
5.3 The paper argues that the awards allow
for average deterioration. However, many will suffer more significant
deterioration than the average and this should be either reflected
in the initial award or be subject to later need/review. In the
case of psychological injury the degree to which deterioration
will occur and time of onset cannot be predicted, and therefore
there is a need to put in place procedures for deterioration review
for this type of disability.
6. ADMINISTRATION
6.1 The paper states at paragraph 6.13 that
the Scheme would be owned and administered by the MoD. We believe
that consideration could be given to the WPA running the Scheme
on behalf of the MoD. The WPA has ample experience and we are
sure their Medical Staff, who have a lot of experience, could
cope with the two differing systems. This would have the benefit
of being separate from the MoD (although the MoD would still bear
the costs) and would allow access to the War Pensioners' Welfare
Service (WPWS)—see below. As an aside, the WPA should not
become part of the MoD. We note that there is also an interesting
phrase in paragraph 6.13 "fully consistent with the cradle
to grave principles of the Armed Forces Overarching Personnel
Strategy". The MoD has never accepted any responsibility
for the ex-Servicemen/women other than for pensions. It always
understood that the "grave" meant either a death in
service or the retirement/discharge of the individual. The MoD
have consistently stated that Other Government Departments (OGD's)
hold this responsibility for personnel once discharged. This last
factor becomes very important when we consider Welfare and the
NHS priority system later.
6.2 During the transition proper, it is
essential that an independent arbiter oversee the implementation
of any new scheme to enhance the confidence of serving personnel
and the ex-Service organisations. Multiple injuries that often
happen in war (eg blindness and amputation) should have an additional
oading (multiplier) to reflect this. the Appeal Mechanism would
be independent of the MoD—the paper suggests a modified
PAT system.
6.3 There are a number of areas of concern:
(a) The criteria for entitlement varies considerably
between the DSS and the MoD.
(b) This is likely to continue for at least
the next 30 years whatever the new arrangements because of the
number receiving war pensions from the DSS. It would take many
years for the expertise held by the WPA to be assumed by any other
Department.
6.4 It does not seem to allow for any aggravation
of medical conditions that themselves are not attributable, although
it is supposed that claims could still be made, but aggravation
to ordinary injuries produce a considerable number of war pension
claims.
6.5 Levels one to 11 will qualify for both
an SIP and a GIS:
(a) Most of the injuries between 12-15 will
not really affect the level of someone's employment, although
one of two might; eg Severe damage to tendons—continuing
disability. We believe that it might be preferable to pay a small
GIS rather than no income at all. Alternatively the AFPS should
pay a small SIP as opposed to a lump sum gratuity. The SIP should
be made tax free.
7. AFTERCARE
7.1 Mention was made earlier that the Review
makes no mention of the status of those injured in the future
and the spouses of those killed and we emphasised this. It is
an issue that leads on naturally to after Service Welfare and
Priority Treatment in the NHS for the former for their accepted
disabilities.
7.2 Once a person is a War Pensioner of
War Widow, this allows access to the WPWS (mentioned above), which
is an excellent nation-wide service provided by the WPA. There
is no mention of any replication of this service. The MoD possesses
no aftercare welfare, other than using the ex-Service charities.
The modern welfare state leaves large gaps in its provision and
our experience, mirrored by other charities that once the local
DSS finds out the individual is an ex-Serviceman/woman, they often
back off, generally with the excuse they have no funds, and leave
it to the charities to pick up the pieces. This gaping hole must
be filled; even if it were that the WPWS carry on.
7.3 The receipt of a War Pension/Gratuity
for disablement gives ex-Servicemen/women priority in the NHS
for treatment relating to their accepted disability. This concession
goes back to 1953 when the Ministry of Pensions handed over their
hospitals to the NHS. The throw disabled, ex-Servicemen/women
onto the NHS without this concession will reduce ex-Servicemen/women
to the level of injured civilians, with long waiting lists. This
would be seen as another example of the MoD abrogating its responsibility.
7.4 Although not quite relating to Priority
Treatment, the WPA does pay for all treatment resulting from the
Accepted Disability (AD) when a War Pensioner is abroad, either
on holiday, business or if he emigrates. The MoD will probably
argue that the compensation would cover the first two areas and
the third is the person's own choice. As an aside, one generally
cannot get medical travel insurance for an AD, as it is a pre-condition
to the time of travel.
8. REHABILITATION
AND CONVALESCENCE
8.1 The Services Pensions Order Article
26 discretionary funding for rehabilitative treatment and for
convalescence is not replicated in this scheme. In the case of
rehabilitative treatment for the psychologically injured veteran
such finding forms an essential income stream without which the
specialist charity concerned could not afford to continue with
its work.
9. INHERITANCE
TAX
9.1 No mention is made of the Inheritance
Tax Concession given for those who are killed in action or die
later as a result of their wounds gained in battle.
10. WIDOWS
10.1 The figure to be used for the GISW
will be 60 per cent of the spouse's lost earnings capacity, abated
by the non-attributable pension paid under the AFPS. However,
the abatement should not reflect the element of the pension that
has been earned.
10.2 An additional Gratuity of £20,000
would be paid, in addition to the gratuity under the AFPS. Nothing
is mentioned whether this £20,000 would be uplifted to keep
pace with earnings.
11. ELIGIBILITY
11.1 The paper covers the eligibility criteria
in Section 8. Most of this is understandable in the light of moving
to the modern burden of proof and this latter point, allied to
the difficulties that personnel may have when natural injuries
are aggravated, will mean that fewer will earn attributable awards.
It is impossible to gauge the effect of this change.
12. HOW SHOULD
SPORTING INJURIES
BE TREATED?
12.1 The current WPA approach is given in
paragraph 8.9. The MoD is concerned that this is too wide in coverage
and may be causing envious eyes from the Emergency Services. What
must be born in mind is that the Services need to be very fit.
The Services are under extreme pressure in their working environment
and individuals, in the main, have to maintain much of their own
fitness in their own time. paragraph 8.10 gives the four approaches
that could be considered. In the circumstances, we believe C to
be the correct approach; ie if the CO believes that individuals
must maintain required standard, injuries in those activities
should be considered attributable.
12.2 The preferred option is (iii) with
the addition of all approved adventurous training activities and
all organised sport.
13. THE MOD
ASKS SHOULD
HOME TO
DUTY TRAVEL
BE COVERED?
13.1 Depending on the individual case circumstances
under the War Pensions Scheme certain accidents suffered by Service
personnel on home to duty travel can be accepted as Service related.
This approach dates back to the Second World War when it was decided
that, for conscripts, home duty travel did not amount to a matter
of personal choice. We consider that the present criteria as applied
by the WPA should continue to operate in any new compensation
scheme.
14. TIME LIMIT
ON ELIGIBILITY
14.1 The Paper recommends that the qualifying
period for disablement to emerge should be three years except
in cases where some listed conditions might take longer to emerge
eg; some cancers and asbestos related diseases. The three-year
time limit is on par with the modern compensation schemes. Great
care is required with a group of the population who do not have
an understanding of the concept. Therefore it is essential that
all servicemen have this drawn to their attention in their discharge
medical and sign and certificate thereof. This must include the
information on time limits for claims. This could be the method
of allowing for worsenment where other conditions that have a
direct link emerge later in life eg spinal, osteo-arthritis, and
hip and knee problems.
15. RESERVISTS
15.1 The paper considers that they should
be brought under the same scheme to cover any injuries they receive
whilst on full time service. This, we believe, would be fair.
16. OTHER COMMENTS
16.1 It is very important that any new scheme
is handled efficiently and should reflect the current targets
that the WPA have set for death in Service Widows and those medically
discharged.
16.2 Whilst we understand that intention
is an overall cost neutral exercise, the MoD should ensure that
any saving operated by the higher eligibility is fed back into
the scheme to ensure the higher level of benefits than the CIC
levels proposed.
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