Examination of Witnesses (Questions 220
- 239)
WEDNESDAY 13 MARCH 2002
RT HON
ADAM INGRAM
AND MR
BARRY MILLER
220. Many of those people might not want to
submit a claim until some time after, when the full extent of
the illness develops to such an extent they have to make a claim
to survive financially. If the burden of proof is placed on them,
and you yourself are admitting today that you do not have meticulous
medical records of Service personnel in some instances, how on
earth can they ever succeed in making a claim when you have shifted
all of the burden of proof to them? In some instance you will
not even let them have their medical records?
(Mr Ingram) There are assertions in there—I
am not a walking encyclopedia of every question ever asked and
every answer that has ever been given or all the minutiae of Ministers
arrangements within departments. I do not accept some of the assertions
contained within there. What I will do, Chairman, is take that
on board and if there is an answer required I think the best thing
is to do that in writing, to take the allegations and to set it
against what we are seeking to do. Something in it tells me that
some of the allegations there do not stand the examination.
221. I can assure you your junior colleague
has written to me and to veterans making that very point, that
their records are not available, meticulous records were not kept
and so the burden of proof is on the person, who cannot bring
the best evidence, which is his medical records, that were supposedly
held by the MoD. Your colleague sitting beside you seems to be
anxious to get in. I am sure a number of vets will be interested
to hear what he has to say about that?
(Mr Miller) There are, indeed, problems with medical
records. If I can come back to your original question, Mr Hancock,
the fact is that under the War Pension Scheme it is effectively
the Agency which is required to prove that a condition was not
attributable to service. What we are proposing is to adopt a much
more common burden of proof—which is the one that is used
virtually universally elsewhere in the United Kingdom—which
is quite simply that the individual should demonstrate that on
the balance of probability his condition is attributable. Clearly
in a case where medical records are not available that is an issue
that would have to be taken into account, just as it is a factor
that the courts will take into account if a case ended up there
because there was an issue of negligence.
222. Sadly the MoD take that to mean many that
there is no case to answer, that is what they have done up to
now, and several of the people sitting behind you would agree.
(Mr Miller) That if I may say so, Mr Hancock, misrepresents
our position.
(Mr Ingram) Statements have been made here about the
Department's policy of approach relating to answers which have
been given in Parliamentary questions. We all know that sometimes
interpretations can be different and I do not for one moment accept
that the Department, in the way in which it has been described
by Mr Hancock, operates in that way. We are very careful, we are
very analytical and we are very thoughtful in the way in which
we tackle all of these issues. If we come to different conclusions
then, of course, it is based upon our assessment, but it not because
we are uncaring or indifferent or we do not recognise the importance
of the issue. If the answers have been expected today based upon—I
do not know whether Mr Hancock has them—the specific Parliamentary
questions then I think it is better if we analyse it and look
at the interpretation placed upon it and if further clarification
is required to set out the Department's position that would help
everyone. I am not accepting those charges against us.
223. Just for the record then, so that we are
clear, Mr Miller has just said, and admitted, that the MoD's medical
records for some personnel are not all they should be.
(Mr Miller) Indeed.
224. We know now there is an admission of that
in the MoD and it is on the record here. Is it, therefore, fair
to change the burden of proof based on what your colleague has
just said?
(Mr Ingram) I am also confirming what has been said,
there are gaps in the knowledge base. There is no way in which
that can be recovered, that gap, because, for whatever reason,
that information is no longer there. There is a danger about this
because we are, perhaps, dealing with a specific series of claims
that are in at present and then try to make the headlines in the
back of all of that, and I think that is unfair.
Mr Hancock: That is a bit unfair!
Chairman: Hang on, we have 25 minutes
to go. We have had the same question three or four times, the
Minister has said he will respond. When that response comes if
the Committee wishes to take it up further we will only be too
pleased to do so.
Mr Hancock: I am sure the Minister is glad of
your protection, Chairman.
Chairman: Can we have a new question
now, please?
225. Would you then suggest that it is right
that fewer successful claimants will now emerge because of the
change you made by shifting the burden of proof on to them?
(Mr Ingram) Yes. I do not think there is any other
answer than yes, because of the new approach we are adopting.
It has to be an attributable injury rather than any injury. If
the view is that just because someone is in the Services then
they should automatically get a claim that, I think, is not a
proper approach. It has to be attributable to Service. What we
are seeking to do within that is to give enhanced benefits targeted
on that attributable injury. I would suggest, Mr Hancock, that
our approach to this benefits those who are in Service, have an
injury and then get the benefit of the lump sum and the guaranteed
income stream. This is an enhancement in terms of that approach.
226. Can you explain to the Committee, and for
the record, how the new system will cope with the loss or inaccurate
medical records and what are you intending to do from now on to
improve the system by making sure that records are properly kept?
(Mr Ingram) I will write in detail on this.
Chairman: We have had this question four
times now, I cannot see much point in proceeding.
Mr Hancock: You might not, Chairman, but there
are a lot of people out there—
Chairman: Mr Hancock, when you chair
a meeting you run it, when you do not chair a meeting I run it.
Mr Hancock
227. Then do not just nitpick the questions,
Chairman! Can I go on then to the tariff based system of compensation
and ask for your opinion. Do you think the tariff is sufficiently
flexible to deal with a whole range of illnesses, particularly
where there is an unpredictable time scale over which deterioration
may or may not occur?
(Mr Ingram) I have said in response to an earlier
question on the time limit eligibility that a case has been made
and we will examine the validity and strength of that case. We
have not closed down on that aspect at all.
228. Do you think it would be flexible enough
to accept there will be a continuing deterioration which might
not be readily apparent at the initial stage when an award is
made but the situation deteriorates considerably? The tariff is
from one quarter of a million down to £1,000. Somebody might
get pitched at £25,000 but subsequently be absolutely ruined
for life because of the further deterioration. Is it flexible
to pick those points up now?
(Mr Miller) We anticipate we will need to have some
review arrangement, we have not yet thought that through in any
detail.
Mr Jones
229. Is that not vitally important, surely?
My experience in terms of dealing with industrial injury cases
is part of the compensation is either for future deterioration
or future loss. Is it not vitally important that this system cannot
be simplistic, as outlined here, because there are quite clearly
cases, for example, let us say, breaking a leg, where there might
be complications later on in life that might come out of that,
surely that has to be taken into consideration?
(Mr Miller) It is important. We will need to give
more thought to how we set up any review arrangements.
230. Is the best way of doing it in terms of
the way the courts do it, in terms of a tariff based system to
take into consideration what deterioration could take place later
on?
(Mr Miller) It might well be.
Mr Hancock
231. The real concern, and I would be grateful
if you could clarify the MoD's current view on this, is that somebody
who has a physical disability, which forces them, one, to leave
the Service and to make a successful claim has their life so disoriented
by this that in the end psychiatric problems emerge which might
necessitate them making a further claim. That has happened to
a lot of people, particularly relating to trauma, et cetera. Is
the scheme flexible enough now to accept that those people could
make a separate claim based on the way in which their life and
their health has further deteriorated?
(Mr Miller) Mr Hancock, we need to give more thought
to the detail of the new arrangements that we incorporate. Clearly
it will be necessary for any arrangements we set up to be flexible
enough to cope with the sort of circumstances you have outlined.
232. You have published an example of the tariff
system at the present time. Have you currently, as of today, following
the publication of that some while ago, decided that there will
have to be some significant changes within that tariff range to
take on board the consultation?
(Mr Miller) We have said that the tariff figures that
we published are only illustrative. We need to give this more
thought.
Mr Cran
233. Can I pick up on one thing? It is linked
back to time limits, if you are going to put a time limit of three
years for people to bring a claim then you have to have some flexibility,
otherwise these are going to be payments that are going to close
down any claim whatsoever for future claimants or if people have
left. It might be, as Mr Hancock is trying to say, something that
materialises a few years later and people are not going to claim
under the scheme because they are out of time. You have to take
that into consideration as well.
(Mr Miller) That is a factor.
234. I find it remarkable that you have not
even looked at this.
(Mr Miller) It is not that we have not looked at it,
we have not worked this through in the detail which will be needed
before we finalise the scheme. One of the things that we needed
to work on, and one of the areas was, frankly, the views and reactions
that we got from consultations were going to be important element.
One of the things we wanted to establish was whether our adoption
of the tariff approach was or was not acceptable to the interested
community.
(Mr Ingram) Can I repeat to the Committee a phrase
I have used a number of times, we are still in receive-mode. We
are still receiving points of view on all of this. What I said
in my opening statement was that we had to, of necessity, lay
down a framework to set out our thought processes. It is not all
rounded off. It is not topped and tailed. There are inputs still
coming in from outside bodies and, of course, this Committee is
only now—and I do not mean that nastily—giving consideration
to the conclusions you will reach as a Committee, which then feeds
into our final thought processes. At the end of the day that which
goes up for approval then has to be set against my Ministerial
judgments and decisions alongside the Secretary of State's position.
There is still a Ministerial examination which has to take place
in all of this, based upon the very detailed work that is done
within a department and then any counter view that may be out
there, and that becomes part of the process of arriving at the
final decision.
235. I accept that.
(Mr Ingram) We have an open approach on this.
Mr Hancock
236. My final question relates to the current
position, somebody who is out of the Service today but has not
made a claim but might decide to make a claim a year from now,
maybe relating to Gulf War service, and the new scheme is implemented,
they would be caught out, because they would have left the Service,
would they not? Really there is an open invitation to say to all
of the Gulf War vets, if you have not launched your claims now
you ought to be able to to avoid being caught by the new regulation
which will be brought in. Is that true or not?
(Mr Ingram) I will explain it in the way I want to
explain it rather than answer if it is true or not. If it relates
to a previous period before the commencement of the new scheme
then it is the existing scheme which would then apply.
237. That is fine. If that is on the record
then people know exactly where they are.
(Mr Ingram) I have already said that, all claims would
be set against the existing scheme.
238. A claim made after the new scheme has been
empowered but relating to service which occurred under the old
scheme, would it be covered? Even though they have not made a
claim at the start of the new scheme would they be retrospectively
covered by the old legislation?
(Mr Ingram) Yes. If it relates to a period prior to
the commencement of the new scheme.
Chairman
239. The answer is yes.
(Mr Ingram) Yes.
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