Examination of Witnesses (Questions 80-99)
WEDNESDAY 18 DECEMBER 2002
DR LEWIS
MOONIE, MP, MS
LIZ MCLOUGHLIN,
CBE, AND MR
ALAN BURNHAM
80. Yes.
(Dr Moonie) In which case, the benefit would have
originally applied to the wife who sadly died and the remarriage
would only take account of whatever service was applicable at
that time given the rules which were in play at that time, so
far as I know.
81. Could you just say that again and clarify
it?
(Dr Moonie) I doubt it very much, speaking on the
hoof as I was answering—
(Ms McLoughlin) I think, if I may, we would have to
look at the specifics of this case. It would depend very much
on the individual's length of service and indeed the extent to
which he bought back. I do not think, Mr Cran, that you are raising
a generic point, but I think this is a specific one that we would
obviously have to look at and answer.
82. So just to take the general point, you can
give the Committee a reassurance that full value is given where
a half pension is bought given the number of years and all the
other parameters?
(Dr Moonie) The point I was trying to make is that
in the past, and this will not be a feature of the new scheme,
I do not think, but, for example, if the marriage was post-retirement,
you were not entitled to benefit. That was then changed in the
late1970s, but it was only after that date, so if this person
had been paying or had bought in for the period prior to that,
but then remarried after that, the remarriage provisions would
only apply to the contributions which had been made since 1978,
not to the past ones. They would be lost because that was applicable
to the first wife. You are not talking to a pensions expert here,
so forgive me if that is slightly not right, but that is my understanding
based on the very sketchy knowledge I have of what you are saying.
83. I understand that you will be reflecting
the rules of the scheme, but I have to say that on the basis of
what I heard, and I do not know what others feel, it is pretty
rough justice.
(Ms McLoughlin) Would it be helpful if we provided
a note with a number of illustrative examples about people with
different lengths of service, different buying into the scheme,
marriage and remarriage?
84. That would be a start, yes.
(Dr Moonie) And the other thing of course is that
if the individual Member you are referring to wants to write to
me about it, obviously we will take a detailed look at the individual
case.
85. But you did not answer me, if I could press
you, that it is rough justice, is it not?
(Dr Moonie) Well, I am very much afraid that it may
be, but that is why I was trying to give you my own impression
that, because of the rules and the times, it may well be rough
justice, yes.
Jim Knight
86. This question is on the heavily trailed
issue of the widows' pension for life and attributable and non-attributable
widows. We have discussed retrospection in principle and we are
very interested in this exception made in October 2000, prior
to which any widow of a serviceman who subsequently remarried
or co-habited lost their pension. I am very pleased that in October
2000 the decision was made to end what was effectively a discrimination
against remarriage for attributable widows and that that was retrospective
in that it applied to existing widows as well as future widows.
It is clear that the change you are applying for non-attributable
widows applies to future widows, but not to current widows and,
therefore, that is not retrospective. Given everything that you
have said about retrospection, why was one an allowable exception
and the other not?
(Dr Moonie) It was allowable because the exception
was made in the case of attributable death where effectively somebody
had died in service. On the one hand, we felt that we wanted to
be particularly generous to the widows, often young, bringing
up families. On the other, quite frankly in discussions with other
government departments, it was clear that this was an exception
that could be made without a read-across.
87. Because of the death?
(Dr Moonie) Because of the relatively limited numbers
of people involved. It is not just death in combat of course,
but any attributable death which is covered, but in discussions
with other government departments, they were satisfied that we
could do this and put in a small element of retrospection without
it applying across departments, so the general rules on retrospection
were able to be disregarded. I must not anticipate what I rather
think is coming next.
88. Well, that is very interesting, Minister,
in that the reason why you could not make exceptions were legal
when we discussed it earlier, but the reason why you appear to
have made this exception is because the numbers were limited.
(Dr Moonie) Yes, we have an encapsulated group of
people where there is no read-across to other departments, so
they were content for us to bring the change in.
89. And that would be permissible in law because
it is such a limited number?
(Dr Moonie) That is not a question of law. The law
applies equally. The question is whether anybody is likely to
challenge the decision or not.
90. Sorry, you have confused me.
(Dr Moonie) If you make a change in one scheme and
that change has a read-across to another two million people in
another scheme, somebody out of the two million is going to challenge
in the courts and under human rights legislation, they are probably
going to beat you. That is the legal advice that we have had,
therefore, it may immediately have a read-across to other schemes
and instead of paying out what with some of the things we are
talking about here may be £500 million, all of a sudden the
cost goes up to £2-3 billion. That is why it is only in certain,
very clearly defined cases where you do not anticipate any legal
problems elsewhere that we are able to make these changes.
91. So where you can have a discrete group of
people of a limited number, then you would look at the exceptions
to the retrospective rule?
(Dr Moonie) I am always prepared to look at that,
but I can give no guarantee as to whether that look will result
in any change.
(Ms McLoughlin) I think maybe I gave a false impression
earlier. What we are talking about is a combination of issues
of policy and the legal position. The Committee asked if we had
legal advice to our position and what I was going to say was that
when challenged in the courts, case law has supported the Department's
view that a member's entitlement to benefit relates to the benefits
of the scheme during his or her membership and there have been
a number of cases which have come up before which have supported
the Department's position and that is what I meant by the legal
position. Whether you will or will not extend benefits, as the
Minister has very clearly explained, are issues of policy and
public policy at that.
92. I am grateful for that issue of principle
and clarity about exceptions on retrospection. When do you plan
to introduce the changes to allow non-attributable widows to remarry
without losing their pension entitlement?
(Dr Moonie) That will be part of the new scheme, so
for any existing people who buy into the scheme and for all future
entrants to the Armed Forces, it will apply to them.
93. The Forces' Pension Society, in their memorandum
to us dated 4 December this year, said: "The MoD has conceded
the principle [of retrospection for widows]; it has introduced
it for war widows and plans to do so for other widows in due course,
but it will wilfully create a new group of disadvantaged people,
ie, existing non-attributable widows and those widowed between
now and the date of introduction. These people will have to choose
between financial well-being and happiness in a future relationship.
This is morally indefensible." What is your response to that?
(Dr Moonie) Well, my response, I am afraid, is the
standard one, that those who entered our schemes did so in the
full knowledge of what they were being offered and they have no
legal right in law to challenge that.
94. That is a good standard response.
(Dr Moonie) It was, was it not!
95. The Forces' Pension Society talks about
moral defensibility. Can you defend it morally?
(Dr Moonie) I think I can, yes. I think I have to.
I believe very passionately that it is the correct principle to
apply the law properly, that when you went into a scheme, you
got what you were expecting. Were we to forgo the opportunities
to improve any benefits in future because it increases the relative
disadvantage to someone else, however much personal sympathy we
feel for them, I think it would be quite wrong. I think we must
try to improve the scheme and we also, sadly, have to recognise
that they cannot be made retrospective, one, because we cannot
afford it and, two, because the people you are talking about are
not actually entitled to the benefit. However, having said that,
I think it is incumbent on the Government in general to do what
it can to make financial provision for people who are worst off
and I think we have managed to do that through the income guarantee
scheme that we have got for pensioners and I would like to see
that increased. These improvements have to be made across the
board.
Rachel Squire
96. Can I move on to compensation issues, Minister,
because the Committee understands that the Government has proposed
moving from the position where it must prove beyond a reasonable
doubt that a condition was not caused by service to more of a
balance of probabilities standard of proof. I am sure you are
aware that representations from this Committee have made clear
our own very serious concerns about moving from the current position
to the new standard of proof. Can I give you this opportunity
to try and convince us that the balance of probabilities is an
appropriate burden of proof for compensation claims when it seems
it is already far from easy to obtain compensation under the current
system of the Government proving beyond reasonable doubt that
a condition was not caused by service?
(Dr Moonie) To some extent, I would take issue with
your last point. I think that our system is a generous one and
that it does not put undue barriers in the way of claiming compensation,
quite the reverse. The test which is applied by the war pension
scheme, the attributable test of effectively the most tenuous
link between the condition which has been developed and service,
was built up originally from the best of motives post-World War
I when it was very clear there were no other current benefits
available to people and there was a general tendency to try to
get as many inside the net as was possible. Contrary to the general
belief that the Government always tries to keep people out, there
was an effort to keep people in. This was recognised at the end
of World War II and proposals were made to revise it which were
not followed up, for whatever reason I do not know, but in the
1960s this attribution of what is often just ill-health was substantiated
by case law based on the test which was being applied. That led
to a situation which, as a doctor, I find indefensible, which
is that even though general illnesses of life which have the loosest
association to service, qualify for compensation, although that
service is purely incidental to the illness. I, therefore, feel
that the modern test of the balance of probabilities is the correct
one to apply. I think it is morally correct, I think it is medically
correct and I think it is legally correct. I do not think I will
convince you with my argument, but that is what I believe.
97. I think it is not just the Committee that
would find difficulties in being convinced of your argument. Indeed
the Royal British Legion, which certainly represents the interests
of veterans from World War I and more recent conflicts, feels
that the current burden of proof situation in which the benefit
of any reasonable doubt is given to the claimant is vital. That
is their view, so given that that is the view of others who are
very well qualified and deal very closely with claimants, again
why are you committed to altering the burden of proof and how
would you answer those who would say it is simply because the
Ministry of Defence wants to reduce the number of successful claims?
(Dr Moonie) There is no doubt that going over to the
balance of probabilities will affect the number of successful
claims. I believe sincerely that we are allowing claims to establish
that we should not be allowing and however much sympathy one may
feel for people who become ill while they are in service, if that
illness is not directly related to service, I do not think that
compensation should be paid as a matter of right. We have other
means of ensuring that if somebody becomes ill and is unable to
serve, they may still have a medical discharge and still be paid
a pension, but I do not think that an inappropriate test of that
should be done. I think the balance of probabilities is correct,
particularly when you look at the other ways in which we are changing
the compensation scheme in general in future, to bring in the
income guarantee scheme for those who are most severely disabled
and the tariff payment. I am afraid that people will disagree
with me on that, but I will not change my mind.
98. Would you like to give any specific examples
of where compensation has been awarded which, in your view, should
not have been?
(Dr Moonie) Individual cases? No, I would not wish
to do that, but I would ask you to take on trust my views as a
doctor of cases which I have seen which have been awarded a pension
which were based on the current War Pension Scheme standard of
proof, which I feel were very difficult to justify in practice.
99. What about the condition of a particular
form of cancer where someone feels that developing it was directly
related to their service? Is that something that you feel is justifiable?
Does that come within your category or your view that it is a
balance of probabilities and such claims should not be successful?
(Dr Moonie) I think the balance of probabilities is
the correct test to apply, yes. People get cancer every day of
the week in this country. It is a sad fact of life and I do not
think an attributable pension would be appropriate unless there
are reasonable grounds for supposing that exposure to something
as a result of their service had actually resulted in that illness.
I think it is wrong.
Rachel Squire: Chairman, I think this is an
area where we may agree to disagree with the Minister.
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