Letter from the Parliamentary Under-Secretary
to the Chairman (26 September 2003)
You may be aware that the Royal British Legion
and the War Widows Association have both been supporting a Royal
Air Force widow, Mrs Hulme, in a case that is due to be heard
in the Court of Appeal on either 7 or 8 October 2003. Mrs Hulme
first raised the case with the Pensions Ombudsman with respect
to her claim for the award of Armed Forces Pension Scheme (AFPS)
widow's attributable benefits. I thought that you should be aware
of the Department's actions in this matter.
The Ministry of Defence appealed the Pensions
Ombudsman's decision in this case to the High Court on a point
of law, as it did not agree with the Pensions Ombudsman's determination
that the AFPS had no right to take its own decision on attributability.
The High Court ruled that, having regard to the wording of the
scheme rules (contained in the Queen's Regulations for the RAF),
the AFPS was bound by the Veterans Agency's decision under the
War Pension Scheme. The Department has been granted leave to appeal
to the Court of Appeal, and the hearing is scheduled to take place
on 7/8 October.
Decisions on attributability made under the
AFPS rules have for some years been based on the normal civil
standard of proof, which as you may know is "the balance
of probabilities". We understand from the available records
that this was confirmed following a policy review of the relevant
scheme provisions very shortly after their introduction in 1973.
However, should the Court of Appeal decide to uphold the High
Court's earlier judgement, and should we decide not to seek leave
to appeal further, we will have to accept that the current wording
of the scheme rules means that the AFPS is bound by the Veterans
Agency's decisions on attributability, which are made using a
more generous "beyond reasonable doubt" standard of
proof. Such a decision by the Court of Appeal would go against
the policy intent for the scheme, which was not clearly reflected
in the wording of the scheme rules and, for the future, we would
wish to re-establish that intent. I have, therefore, decided to
amend the scheme rules as soon as possible, to make clear that
the AFPS operates on a balance of probabilities standard of proof,
taking a separate decision on attributability from that taken
under the War Pension Scheme. The Prerogative Instruments will
not be amended until the outcome of the Court of Appeal is known.
If we were eventually to lose the case, we would apply the Court's
decision in respect of those cases where the injury, condition
or death occurred prior to the amendment of the rules and official
announcement. We would also pay additional benefits as appropriate
to those whose AFPS pensions should have been decided in the past
in line with War Pension Scheme decisions on attributability.
These payments would be made as quickly as possible. However,
those injuries, conditions or deaths occurring after the announcement
would be considered under the balance of probabilities standard
of proof.
I appreciate that such a change will be unwelcome
to the ex-Service organisations which have been closely associated
with Mrs Hulme's case. I have considered their position but have
decided that, notwithstanding the Court's decision on the interpretation
of the AFPS scheme rules, we should re-establish the use of the
balance of probabilities standard of proof, in line with previous
policy intent for the scheme and practice in other occupational
schemes. I have written to the War Widows Association and the
Royal British Legion advising them of this decision. I will provide
copies of the scheme.
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