Memorandum submitted by the Royal British Legion Scotland (3 September 2001)
Our Organisation did respond to the Consultation Document on the Joint Compensation Review published by the Ministry of Defence in March. The response set out the views of The Royal British Legion Scotland, which remain extant. I enclose a copy for your information.
The Royal British Legion Scotland did not respond to the Consultation Document concerning the Review of the Armed Forces Pension Scheme as we felt that there were organisations better placed to give a detailed view ie The Forces Pensions Society (formerly the Officers' Pensions Society). I would say however that we had no major problem with the proposals which we felt, in general, did represent an improvement on the current pensions arrangements.
I hope you find these views helpful.
Submission to the MoD Review
I am responding to the Consultation Document on behalf of The Royal British Legion Scotland. Our thoughts, as the largest ex-service organisation in Scotland, will no doubt reflect those of our larger sister organisation The Royal British Legion.
There are in our opinion several areas which require improvement before being acceptable to ensure that those who become disabled in the future are not disadvantaged in comparison to those already receiving disability benefits/allowances.
Section 5 asks how the new compensation scheme should be structured and whether a single scheme would be the best approach. We do not feel so. Currently the MoD and the former DSS have different criteria for determining entitlement to benefit under their schemes and it appears that the MoD criteria would be the basis to decide on future entitlement. We feel this would have a detrimental effect on future awards. As is pointed out in Section 4 the present war pensions scheme is available to those not medically discharged therefore that scheme is much more broadly based. Reference is made to the complexity and anomalies created by overlap and present in the current schemes but such are now well recognised and generally accepted. Amalgamation of the schemes appears to remove the statutory rights granted under the Service Pension Order. It is suggested that the proposals might provide an alternative means of settling claims where negligence is an issue and it is further suggested that the compensation package should not be too far out of line with awards available in civil negligence claims but the document does not indicate how this might be achieved. Considering the variation in reported civil actions it will be a problem determining a mean figure.
5.6 indicates the view that current schemes are weighted too far towards pensions but we feel that this is the right approach. The proposal that compensation be paid through a lump sum is not acceptable. Lump sums would, in our opinion, be quickly used up leading in many cases to reliance on other means tested state benefits.
The proposals concerning compensation for lost earnings are noted and we again feel it would be wrong to pay a lump sum rather than an income stream. A Guaranteed Income Stream or ongoing pension is infinitely preferable. We accept the principle that individuals should not be paid twice for the same injury/disablement.
Section 6 poses the question "How should the new scheme work?". The MoD proposes a tariff based approach since the major portion of claims are likely to be for physical injuries which it is claimed are well suited to such method. Little mention is made of mental illness (such as PTSD) which would in many cases be classed as low disablement. The fact that deterioration would be anticipated in tariff levels causes concern since initial lump sum awards would not be eligible for review. It is our experience that deterioration leading to the need for review cannot be anticipated; individual circumstances are infinitely variable. A disablement initially not too server can commonly deteriorate to the stage where it becomes "serious" disablement. The proposals that where further consequential medical conditions later emerge can be considered is welcomed. The loss of earnings capacity proposals suggest that the formula to be devised will only consider earnings to age 55 (the normal retirement age for the A.F.P.S.) whereas the majority of people would work until age 65 in a new career. We feel that this issue must be considered.
It is not clear whether payments under the proposed scheme would be tax-free, as are awards under the War Pension and AFPS schemes for attributable disabilities. This point should be clarified. From the introduction of the new scheme we would have three schemes which would need to operate side by side for 40 years or more. It is accepted that, in time, only one scheme would be operative but is this simplification?
It is proposed that the MoD should own and administer the new scheme. We feel there are issues of concern here. As has been said previously the MoD and former DSS have different criteria for eligibility of current schemes, only the most favourable from each should be considered. A cradle to grave principle is mentioned but currently all the expertise in assessment of disablement and welfare is held by the War Pensions Agency and we feel that must continue since the MoD in the past have never had responsibility for their former employees. Having in 1999, following a "Prior Options Review" been granted "Stand Alone" status for a five year period it is suggested that the WPA/WPWS remain an Executive Agency within the MoD so that they can use and benefit from such expertise. On the question of appeals it is proposed that the present Pensions Appeal Tribunals be the appeal avenue in disputes regarding lump sum awards. We feel that access to the Pensions Appeal Tribunal must be able to cover all MoD decisions concerning awards whether lump sum or pensions.
Section 7 asked how benefits for dependants should be calculated. The proposal that, for the first time, widows and widowers should be treated equally is to be welcomed. However we are against not in favour of lump sum awards and would prefer to see compensation in the form of ongoing pensions. The proposals that attributable widow(er)s receive a payment of £20,000 in addition to the benefits mentioned is again to be welcomed. The proposals concerning Children's Benefits appear quite acceptable.
Section 8 concerns eligibility under the new scheme/
Section 8 concerns eligibility under the new scheme. The proposals list circumstances/eligibility criteria, criteria, which would provide compensation for disablement or death, but also propose that not every illness or injury would be covered. The exclusions are said to be necessary to direct resources to the most severely disabled. The term "severely disabled" has cropped up previously and this causes us to have concernsif there are to be two levels of disability are the less severely disabled being discriminated against? Once again the question of not being compensated twice for the same injury arises. It is accepted that an award should be adjusted to take account of payments made from the CIC (UK) and CIC (O) schemes and a third party's insurers but no suggestion is made how such adjustment should be made; this must be clarified.
The document asks whether Sporting Injuries should be covered and four main options have been identified. We feel that Option "C", which limits awards to those whose injuries are incurred as result of representative sport, compulsory fitness training and other activities which the Armed Forces consider important to maintain the required fitness for a service career, is acceptable but feel that injury caused by any organised sport should also be covered.
The question of disablement arising during home to duty is raised. The War Pensions Agency already apply a criteria to consideration of such cases and we feel that such criteria should continue for consideration of claims under the new scheme.
In Section 8 it is asked if there should be a time limit on eligibility. Currently the WPS and AFPS operate different rules governing rules for submission of claims the most favourable being those used by the WPS where a claim can be made at any time after discharge. We feel that WPA rules should be implemented. We feel that to impose time limits for claiming for any medical condition, which can arise would be wrong.
Similarly we feel that there should not be any time limit for submitting claims.
Section 9 concerns arrangements for Reserve Forces. We believe the proposal that members of the Reserves be entitled to the same arrangement for compensation as their regular counterparts is to be welcomed. We do however envisage problems in determining loss of earnings in cases where the civilian job is highly paid.
Section 10 refers to Next Steps and Key Issues. The Royal British Legion Scotland views are contained in the preceding paragraphs and we trust that they are helpful in reaching final conclusions in determining the basis of regulation of the proposed new scheme.