Examination of Witnesses (Questions 40
- 59)
WEDNESDAY 6 MARCH 2002
COLONEL TERRY
ENGLISH, MAJOR
TOM HOUSE
AND LT
COL STEVE
COLTMAN OBE
Mr Howarth
40. On the processing of claims, based on your
own experience of handling claims on behalf of veterans, do you
think that the MoD's aim under the new scheme of making decisions
on most cases "within a few weeks of submission" is
realistic?
(Major House) I work at the grass roots of claims
for war pensions. War pensions can take anything from half a dozen
weeks to almost up to a year. I shall defend the War Pensions
Agency on this aspect: it is not always the War Pensions Agency,
which process the claims, that causes the delay. We have said
that war pensions are not given away, and a lot of investigation
has to take place to ensure that the particular injury being claimed
was caused or aggravated by service. That investigation will mean
acquiring information from consultants, GPs, hospitals and the
whole medical sphere. That creates the delay. Of course, we would
like to see it done in a few weeks, but I do not think that that
is practical if we are to ensure that an award is given to a person
for an injury that was actually caused by service. That is the
fail-safe area.
41. The answer to the question is that you do
not believe that the Government's claim is realistic. Given all
this experience, why do you think that they made the claim that
they would be able to assess these claims within a matter of weeks?
(Colonel English) On some of the smaller claims, at
the bottom end of the stream—the odd fracture—it is
possible that they could make an assessment very quickly, as insurance
companies do. When looking at the more sophisticated claims—I
refer to ailments that can take a long time to develop and psychiatric
ailments are probably at the top of the tree—currently it
takes the War Pensions Agency, as Tom has said, many months to
assess some of these. When they fail on the first occasion, it
can take up to two or three years to go through the appeal process.
In the case of simple ailments, such as fractures and obvious
matters, I believe that they could be turned around very quickly.
With the more underlying causes of ill-health, I do not believe
that they can be progressed much faster than the time that is
taken now.
42. Perhaps you can enlighten the Committee
as to exactly how these things proceed when someone has an illness.
Is it a Service doctor, a civilian doctor or an MoD panel of consultants
that decides whether a person is suffering from the illness that
they claim?
(Colonel English) I shall ask Steve, who has recently
retired from the Services, to answer that.
(Lt Col Coltman) The present system is that you do
not make a war pensions claim until you leave the forces. You
can apply the day you leave the forces, and if you are medically
discharged the medical documents are sent to Norcross and they
are looked at on the spot. Those claims happen quite quickly unless
they are complicated. When someone makes a claim straight after
service, the evidence is based on his Service medical documents
and that is currently assessed by the War Pension Agency doctors.
For people who die in service, the War Pensions Agency makes the
decision on the "attributability" or otherwise, and
they will make that quite quickly because the cause of death is
notified to the War Pensions Agency. That agency's decision is
then notified to the individual and to the MoD in the case of
medical discharge or death in service and the MoD takes further
action. Under the new scheme, as claims will be allowed to be
made while the person is still serving, it would be envisaged
that while they are still serving it will be their medical documents
or the circumstances of the death. We understand that that will
be dealt with by the MoD. They have not said what specific method
that they will use, although the appeal mechanism will be independent.
In the current system, when someone makes a claim long after service—four
or five years—because of deterioration, one then requires
a civilian GP's opinion and perhaps copies of the medical documents
from a civilian GP or hospital. Currently the War pensions Agency
takes a view on that claim of deterioration. In the future, with
the three-year rule, which is three years from the date of knowledge
of the disease, many injuries will occur in service and then we
shall use the Service record documents. When the person has left
the Service and the circumstance arises that a new disease starts—an
example is Casons disease, to which deep-sea divers are prone
which leads to amputation—they will have to turn to the
NHS medical system and obtain the documents. It is a fairly complex
arrangement. For those people in service it will probably be more
simple.
43. Do you think that there is a spirit within
the MoD to try to find in favour of the applicant, or do you sense
that there is a spirit in which the examination by consultants
and others is designed to deter and to minimise the MoD's liability?
(Major House) The medical assessment of the case will
probably be fairly similar. I would like to think that doctors
look at a particular circumstance in the same light. The big difference
is in the burden of proof. In the new MoD compensation scheme
the burden of proof will be the modern one of "on the balance
of probabilities", whereas on the war pension scheme for
the first seven years the burden of proof is on the War Pensions
Agency to show that the injury was not caused by the Service.
There is a differentiation in the burden of proof rather than
the medical condition.
44. Would you say that the current claims procedure
is frequently protracted? If so, why and where do the delays occur?
(Lt Col Coltman) As my colleague has said, it depends
on the circumstances. Certainly many of the death-in-service cases
are dealt with very quickly so that the widow receives a war widow's
pension. It is much more difficult when it is a complicated case
that may have to go to appeal. For medical discharges, where the
injury is fairly straightforward and well documented—for
example, in Northern Ireland or Bosnia—the war pension for
that would happen quite quickly. As my colleague says, when claims
arise years later it can take time to get hold of all the hospital
notes.
45. Is there any way in which it can be improved?
(Lt Col Coltman) I think after service it is difficult.
People move around the country a lot. They generate a lot of paperwork
if they see their GP or go to hospital. I do not have enough experience
of the NHS to say whether the NHS draws all the paperwork together
for each patient in one place. I doubt it.
Mr Crausby
46. One of the MoD's stated aims within the
proposal is that fewer cases will go to court. Most outside the
legal profession would agree with that. It appears to make more
sense to concentrate on compensation rather than on litigation.
Yet, in your document you make the point that you firmly disagree
with the MoD that court cases can be stressful.
(Colonel English) The experience that we have had
to date is that when an appellant has chosen to go to court in
some of the cases that we have supported, for him to be deterred
would be more stressful. He may feel aggrieved in the first instance
and to be cheated out of the entitlement, and for that situation
to remain with him for life, can be very stressful. Our experience
in dealing with those who choose to go to a war pensions tribunal—we
represent people at over 6,000 cases every year—is that
they are assisted in those instances by our representatives. When
they go to the High Court they are assisted by members of the
legal profession who put their case forward. When they come to
us for advice, we advise them at each stage of the process what
the stresses and strains are likely to be and we ask them whether
they really want to progress with it. A classic example is that
recently, almost as a unique case, we supported Sergeant Trevor
Walker, in his case against the MoD for compensation. He had his
leg blown off while on peacekeeping duties. The situation was
deemed to be war-like. The civil power lost its authority, so
he was not entitled to Criminal Injury Compensation. He went all
the way through to the House of Lords and is considering going
to the European Court now. On each occasion he has come to us
and said that he wants to progress. He would have found it far
more stressful had we not agreed to take on the case because he
still feels very aggrieved. We believe that where individuals
choose to take on cases, it is better that they should be permitted
to do so.
47. I can understand that in a minority of cases
there will be individuals who want to progress all the way. That
is up to the nature of individuals. But do you think that overall
going to court, and having the ability to go to court and to use
civil proceedings, outweighs the advantages of a fixed term system?
(Colonel English) Yes, I do. We have seen the settlements
that have been achieved by going to court. They are significant;
they are significantly higher, in the cases that have been successful,
than what was offered.
(Major House) In relation to the war pension scheme
itself, when we say "court", we mean "tribunal".
One would have thought that a tribunal could be upsetting for
someone in their 70s or 80s, which is predominantly the age that
we represent at tribunal. I also believe that because we offer
this service, we see people from the start of the process up until
the result at tribunal. That result is 47 per cent in favour of
the appellant, which makes one think that perhaps the decisions
that are made initially are to be questioned anyway. Because we
are an ex-Service organisation and because they relate to the
people who are representing them, the process of claiming and
going to tribunal is less stress than if they were left to swim
on their own.
48. That all depends on the extent of the fixed
payment system. That is more an argument that the fixed payment
system is inadequate. Is it not better to negotiate an adequate
fixed term system rather than spend more and more resources on
litigation?
(Colonel English) Not if it is going to produce a
fixed payment system which is going to disadvantage those who
are entitled to a certain sum of money for their injury. What
we will be looking at now is something less and those who are
applying for it will be very disadvantaged. As Tom has said, 47
per cent of all the cases that we take to the War Pensions Tribunal
succeed.
Jim Knight
49. Just to help me, can it be that the tribunal
or the court awards different amounts of compensation for similar
cases? Is there a consistency in the awards that are coming through
and, if not, is there a case for saying, "Well, let's find
some consistency, but still have an appeals process whether or
not there is eligibility"?
(Major House) There is no difference in the payment.
If somebody wins, or "successful" is probably the better
word, at tribunal, they are then `medicaled' to find out for that
condition which is now acceptable what percentage of disability
it is reasonable to award, so a person who has got a knee problem
gets 40 per cent straight off, and to a person who has had it
turned down and goes to tribunal, once it has been accepted, he
or she will get the 40 per cent rate, just the same as the other
person, so there is no difference in level of award.
Syd Rapson
50. Could we go on to appeals as such. In your
review document, which is very handy, a part says, "How shall
we handle appeals?" and it is very interesting reading. The
new proposals are that the MoD should administer the whole scheme
and that must concern you as well as it does me. In this review,
you express some real concerns about the administration of the
new scheme being within the MoD, and I would tease that out. What
arrangements would you prefer for administering the scheme and
for appealing against decisions?
(Colonel English) I believe that was written before
the War Pensions Agency came under the jurisdiction of the MoD,
so we are really whistling in the wind on that now. We would have
preferred not to have seen it come under the MoD. Our real fear
is that the MoD becomes judge and jury. The tribunal system is
an excellent system and has worked well for the ex-Service community
and we would not wish to see that tampered with in any way. As
long as that stays in place, I believe we have got an assurance
of its independence, as it is now, and that the appellants will
be treated fairly.
(Major House) The independence, it is seen to be independent
even though it may not be independent and also the War Pensions
Agency, believe it or not, is seen to be independent to Tommy
Atkins on the ground, not that he always likes it, but he does
see it as divorced from the MoD. The tribunal system, as Colonel
English said, is one that we support. The judgments that come
from it are generally fair. I have had my appointment for ten
years and not once have I had to complain about the judiciary
at all, and any cases which are disputed are then followed to
the High Court, and we have had a few of those. So the system
does work and it is one that we do not want to lose because our
client base actually believe in it and they believe in British
justice.
51. Could I just clarify that the Pensions Appeals
Tribunal, PAT, is actually, it is suggested by the review, to
take over all appeals? I would see that, from what you were saying,
as being a good move. Am I misreading that or is it going to be
worse?
(Colonel English) We have great faith in the PAT.
We are faced with a situation where it has moved on from when
we first made our comments on the report, but the MoD's War Pensions
Agency has moved as an agency within the MoD and that is a fait
accompli which we have had to accept. To date, they have not
lost any credibility and we will hope that they do not, but we
will monitor it very carefully. Now, the PAT we believe to be
an organisation that has credibility, is trusted by the ex-Service
community and I believe that if cases are handled there, if all
the cases go there, that will be something that will be accepted.
Chairman
52. In the light of the fact that you have changed
slightly from the original written memorandum, I have just had
a word with Carol here and rather than putting in two addenda,
in the light of what you have been asked today and in the light
of changing events, you might want just to word process it and
send in another one, if that is okay.
(Colonel English) Yes, certainly[2].
Mr Hancock
53. Can I ask a question about the appeals procedures.
Some of them take an awful long time for a case to be heard and
they also take a long time for the person appealing to get the
evidence together and that is sometimes very tricky because it
involves more than one doctor and it means getting other witnesses
involved, and there is sometimes a great expense in putting that
together. What does the Legion offer in the way of support for
somebody who would seek to make an appeal in difficult circumstances
and how do you make judgments about what you can and what you
cannot do to help? Also do you think there is a need now for a
form of financial assistance being given to people to be able
to run these appeals their full course?
(Major House) The support that we give the appellant
is total. If somebody comes to the Legion and wishes to be supported
at tribunal, we accept without fear or favour. I am not in the
business of being judge and jury. Many a time have I read a statement
of case, the evidence that goes to the tribunal, and decided in
my own mind that that person does not have a hope in hell. They
go to tribunal and, funnily enough, because of the evidence that
is given on the day, they will get a pension, so I am not judge
and jury. The support that we give the appellant is that also
we have four consultants, medical consultants, who give their
opinions for free and accompanying any of our statements of case
is medical evidence that might support that case and the appellant
again can use the Legion by telephone, by visit or us visiting
them to support them right up to the time that they actually go
to tribunal and at tribunal at no cost to the appellant
54. But do you think there is a case to be made
and will you support any former Serviceman or only members of
the British Legion?
(Colonel English) We support any ex-Service person
who has served for more than seven days in the Armed Forces. That
is our criterion for assistance, so virtually everybody. Tom has
mentioned the support we give in terms of representation and through
the medical consultants who are eminent in their own fields and
who give their advice totally free.
55. Would they actually be meeting with the
appellant or would they be basing their evidence on written evidence
supplied by other medical practitioners?
(Colonel English) Essentially they are doing it from
written evidence which is presented from the file.
56. Is their evidence not somewhat weighted
in that respect?
(Colonel English) I believe it to be totally fair
because it is the evidence which would go forward to the tribunal.
If the individual has a situation in which they wish to add to
their case, that medical evidence is included in that which goes
forward, so it does not just stop. If they have got additional
medical evidence to be considered, that can come forward and go
forward on the file that comes to our consultant and it then goes
forward to the tribunal.
57. If a case went from the tribunal to the
courts because you were challenging the tribunal's decision, would
you then support financially that claim?
(Major House) Normally in war pension claims, one
is given leave to appeal. If leave to appeal is given, then our
costs are paid for anyway and we do have a system where we have
some lawyers and indeed our own barristers who will take that
right the way through.
Chairman
58. But they do not give their services for
free like the doctors.
(Major House) No, they do not.
Mr Hancock
59. What do you say in your own publications
about what you will do in war pensions because I read with interest
your—
(Colonel English) Service guide?
2 The Legion's confirmed position is that the 3 year
time limit should apply to civil compensation claims only. The
Legion would resist any attempt to introduce this restriction
for War Pension claims. Th MoD has been made aware of this amplification. Back
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