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Standing Committee Debates

Draft Pensions Appeal Tribunals (Additional Rights of Appeal) (Amendment) Regulations 2006



The Committee consisted of the following Members:

Chairman: Derek Conway
Baldry, Tony (Banbury) (Con)
Benyon, Mr. Richard (Newbury) (Con)
Burns, Mr. Simon (West Chelmsford) (Con)
Cunningham, Tony (Workington) (Lab)
Engel, Natascha (North-East Derbyshire) (Lab)
Gilroy, Linda (Plymouth, Sutton) (Lab/Co-op)
Harper, Mr. Mark (Forest of Dean) (Con)
Key, Robert (Salisbury) (Con)
Mallaber, Judy (Amber Valley) (Lab)
Marshall-Andrews, Mr. Robert (Medway) (Lab)
Rennie, Willie (Dunfermline and West Fife) (LD)
Russell, Bob (Colchester) (LD)
Smith, John (Vale of Glamorgan) (Lab)
Spellar, Mr. John (Warley) (Lab)
Watson, Mr. Tom (Parliamentary Under-Secretary of State for Defence)
Wills, Mr. Michael (North Swindon) (Lab)
Wright, David (Telford) (Lab)
Emily Commander, Committee Clerk
† attended the Committee

First Standing Committee on Delegated Legislation

Monday 26 June 2006

[Derek Conway in the Chair]

Draft Pensions Appeal Tribunals (Additional Rights of Appeal) (Amendment) Regulations 2006

4.30 pm
The Parliamentary Under-Secretary of State for Defence (Mr. Tom Watson): I beg to move,
That the Committee has considered the draft Pensions Appeal Tribunals (Additional Rights of Appeal) (Amendment) Regulations 2006.
The Chairman: With this it will be convenient to consider the draft Pensions Appeal Tribunals (Armed Forces and Reserve Forces Compensation Scheme) (Rights of Appeal) Amendment Regulations 2006.
Mr. Watson: What a pleasure it is to serve in Committee under your chairmanship, Mr. Conway. You will see that several Whips and former Whips are in our company today and, to stand up to the great tradition of the Whips Office, I shall be brief, to the point and as quick as I possibly can be in explaining the two instruments.
Both sets of draft regulations were laid before Parliament in accordance with section 11A(5) of the Pensions Appeal Tribunals Act 1943. The statutory instruments are subject to approval by resolution of both Houses. I must make it clear that they refer to two separate and different schemes. One set of regulations, which will be known as the Pensions Appeal Tribunals (Armed Forces and Reverse Forces Compensation Scheme) (Rights of Appeal) Amendment Regulations 2006, removes appeal rights with regard to decisions under the armed forces compensation scheme to make a temporary award. The other set, which will be known as the Pensions Appeal Tribunals (Additional Rights of Appeal) (Amendment) Regulations 2006, introduces a new right of appeal against a decision under the war pension scheme to cancel an award.
First, I shall discuss the armed forces and reserve forces compensation scheme regulations. In drawing up appeal rights under the armed forces compensation scheme, we sought to mirror those under the war pension scheme and to simplify them when it was sensible and practical to do so. I believe that that aim was met fully under the Armed Forces and Reserve Forces (Compensation Scheme) Order 2005, which came into force on 6 April 2005.
There is now a requirement to amend the 2005 appeal regulations, so that a decision under the new armed forces compensation scheme to make a temporary award will not carry a right of appeal. It may be helpful to members of the Committee if I explain briefly the statutory framework under which the draft instrument has been made.
The 1943 Act allows an appeal to a pensions appeal tribunal against certain decisions under the war pensions scheme. Section 5A of the Act provides that regulations may be made specifying that certain types of decision, referred to as specified decisions, made under the 2005 order will attract a right of appeal to the pensions appeal tribunal.
Regulation 3(1) of the 2005 appeal regulations provides that decisions under the new armed forces compensation scheme that relate either to entitlement to benefit or to the amount of benefit payable are specified decisions, attracting a right of appeal to the pensions appeal tribunal. Regulation 3(1) is subject to the exceptions in regulation 3(2), which provides that decisions to make an interim award or to suspend payment of an award are not specified decisions, with the result that such decisions do not carry a right of appeal.
It is proposed to amend the 2005 appeal regulations. Regulation 3(1) is amended to make it clear that a decision as to the making of a permanent award is a specified decision and therefore carries a right of appeal. Regulation 3(2) is amended to provide that a decision to make a temporary award is not a specified decision, with the result that such a decision will not carry a right of appeal. I shall explain the reasons for that.
The 2005 order contains a tariff that lists the conditions in respect of which compensation may be awarded and specifies for each condition the appropriate tariff. The tariffs are set out in tables under the order, which was subject to the negative resolution procedure. The tariff determines the compensation payable.
Subject to one exception, an award of compensation may be made under the new armed forces compensation scheme only when a claimant is suffering from a condition that is listed on the tariff. It was realised during the drafting of the armed forces compensation scheme order, and following discussions with ex-service organisations, that a strict tariff-based approach might be too inflexible and that there would need to be provision for an exception. The exception to the rule is therefore in article 20 of the 2005 order, which provides discretion to make a temporary award in relation to a condition that is not listed on the tariff.
The temporary award is made at the tariff that is believed to be appropriate. Within a year following the making of a temporary award, it will be decided whether the tariff should be amended to include reference to the condition. If the tariff is amended, a permanent award is made in the individual’s favour. If the tariff is not amended, no permanent award is made.
I stress that we envisage that power being used very rarely. In the first year of the scheme, a temporary award has needed to be considered in only a very small number of cases. Those awards will become permanent following amendments to the tariff, which come into effect on Friday.
These regulations provide that temporary awards are not specified decisions and do not attract a right of appeal. Such awards are, by definition, temporary. However, full appeal rights will apply in relation to the making of a permanent award or the decision not to make a permanent award. That mirrors arrangements that apply to interim awards, which are made where the prognosis for an injury is uncertain and the Department is unable to take a final decision on the appropriate benefit.
An interim award may be given for up to two years, by which time it must be made final. It was not possible to include the provision relating to temporary awards not carrying a right of appeal when the 2005 appeal regulations were introduced. The decision to include that type of award in the 2005 order was made at a relatively late stage, and after the 2005 appeal regulations had been laid in draft to meet the requirements of the affirmative resolution procedure.
The main ex-service organisations were briefed last year on the late inclusion of temporary awards in the new armed forces compensation scheme and on our intention not to extend appeal rights to such decisions. Those groups had already accepted the absence of appeal rights on interim awards without adverse comment and did not dissent from their not applying to temporary awards. Details of the proposal were also contained in a report circulated to members of the Central Advisory Committee on War Pensions at its meeting in December 2005.
I can assure hon. Members that veterans will not lose out by this measure. No amount that has previously been paid to an individual pursuant to a temporary award will be recoverable if it transpires that no permanent award is made or if the permanent award is lower than the temporary. I stress that the decision relating to a permanent award may be appealed against in the normal way.
Moving on to the second measure before the Committee, I remind hon. Members that the additional rights of appeal regulations apply to the war pension scheme. Again, it will be helpful to explain the statutory framework under which the draft proposal has been laid.
The rules for the war pension scheme are in the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006. The Pensions Appeal Tribunals (Additional Rights of Appeal) Regulations 2001 list the decisions under the service pensions order that attract a right of appeal. The 2001 appeal regulations refer to the 1983 service pensions order. That has been replaced by a consolidated instrument—the 2006 service pensions order—which was restructured, renumbered and contains some new provisions.
One new provision, article 66, enables the Secretary of State to cancel an award in circumstances in which a pensioner has failed to comply with a request to provide information or to attend a medical examination. Cancellation can occur only if an award has already been suspended for 12 months.
I stress that the powers to suspend or cancel a war pension award will be used only as a last resort and after the Veterans Agency and its welfare service have made every effort to obtain the pensioner’s co-operation. The Committee will nevertheless appreciate the need to ensure that awards remain well founded and to hold in reserve a power to suspend or cancel if necessary.
I can reassure the Committee that the ex-service organisations with which the Department discussed the matter fully agreed with the principle of suspension and cancellation. However, those organisations, particularly the Royal British Legion, emphasised the need for appropriate rights of appeal.
To conclude, the first set of regulations will satisfy all parties who have a recognised interest in the continuing successful implementation of the new armed forces compensation scheme. They will ensure a streamlined process that will prevent the complexities involved in two appeals from arising on essentially the same issue, and in the same case, within a period of months.
The second set of regulations responds to the comment by the Royal British Legion that the power to cancel a war pension award should be subject to rights of appeal and, more generally, makes it clear which decisions carry a right of appeal following consolidation of the service pensions order.
We believe that both sets of regulations are fully compliant with the European convention on human rights, and I commend them to the Committee.
4.40 pm
Mr. Mark Harper (Forest of Dean) (Con): It is a pleasure to serve under your chairmanship, Mr. Conway.
To take the regulations in reverse order from the Minister, we welcome the draft Pensions Appeal Tribunals (Additional Rights of Appeal) (Amendment) Regulations 2006. It seems sensible to ensure improved clarity and, as I have no further comment on those, I shall not detain the Committee any longer.
I welcome the Pensions Appeal Tribunals (Armed Forces and Reserve Forces Compensation Scheme) (Rights of Appeal) Amendment Regulations 2006. However, the Minister mentioned the types of consideration that the Secretary of State will be undertaking, so I draw his attention to some concerns that have been raised with me on the difficulties of assessing what compensation awards are due for mental disorders, as opposed to physical.
I appreciate that the Minister is aware of the issue, but, notwithstanding the difficulty of assessing a mental disorder as compared with a physical, it has been drawn to my attention that some proposed compensation awards for mental disorders—specifically, those permanent disorders causing severe functional limitations and restrictions—are graded at the same level as a physical disability such as the loss of one foot at the ankle, which would seem to have a quite different impact on a serviceman’s ability to seek alternative employment or continue his career.
In making interim awards or taking decisions that impact on changes in the tariff, has the Minister given any thought to the complexities involved in assessing mental as opposed to physical disorders? In the Ministry of Defence, are discussions ongoing with the relevant organisations? Other than those points on which I wish to probe the Minister, the regulations make perfect sense.
4.43 pm
Bob Russell (Colchester) (LD): Under the conventions of the House, I should say that I look forward to serving under your chairmanship, Mr. Conway—for at least another five minutes, before the proceedings come to an end.
I thank the Minister for his introduction and for setting the scene. I am grateful for his observation that the various veterans’ organisations have been consulted—I assume at every stage. I declare an interest, in that I am one of the parliamentary advisers to the Royal British Legion.
Will the Minister give the Committee an assurance that if, in the fullness of time, the experience of the proposed changes is that they have not worked out as intended, they will be revisited? Also, is he satisfied that the criteria for assessing those who might have suffered from mental problems as a result of serving in Her Majesty’s armed forces have been given due weight?
There is growing concern that the mental health consequences for soldiers in particular and for others of serving in Iraq are perhaps not being addressed with the right degree of attention. That is not meant as a criticism, but concerns have been raised, so perhaps the Minister will comment on the issue in the context of the two instruments before us.
4.44 pm
Robert Key (Salisbury) (Con): In a moment, Mr. Conway, I shall ask the Minister kindly to tell us precisely which service organisations were consulted on the instruments, but first I would like to say what a pleasure it is to serve under your robust chairmanship. The Minister generously referred in his introduction to ex-Whips who are present, which includes your good self, but he did not mention what a privilege it is to have a former defence Minister with us this afternoon. It is a pleasure to see the right hon. Member for Warley (Mr. Spellar), who performed the Minister’s role on many occasions. I am sure that that was merely an oversight, but it is worth putting the matter on the record.
As to the matter of substance, I note that paragraphs 7.4 and 7.3 of the two explanatory memorandums, which contain identical wording, mention “Ex-Service organisations”. It is important that we know which were consulted, because in my constituency, which is probably the most military in the country, I have a large number of such organisations, and some are offended when only the Royal British Legion is consulted. Quite right, too, that it should be, but there are others of great significance.
I also want to ask the Minister whether the veterans’ organisations are being consulted.
4.45 pm
Mr. Watson: May I start from the back and go forward? First, the hon. Member for Salisbury (Robert Key) gives me the opportunity to praise my predecessor, my right hon. Friend the Member for Warley. He is not just my predecessor, but my neighbouring MP, so woe betide anyone who does not show him the respect he deserves. Of course, he is also an ex-Whip, and it is in that regard that I want to pay him respect. Everyone knows that ex-Whips make the best defence Ministers.
The hon. Members for Forest of Dean (Mr. Harper) and for Colchester (Bob Russell) referred to representations—I think they mean those from Combat Stress in particular—on tariffs relating to mental health. I want those tariffs to reflect the disability suffered by our veterans. It is too early to undertake a full review of the scheme, but I assure the Committee that when we do so we will take the views of Combat Stress and all the ex-service organisations into account.
On the point about which organisations were asked to take part in the consultation, I cannot give the hon. Member for Salisbury the list right now, but I shall write to him about it. As a new defence Minister, I take his point and if I feel that not enough people were in the pool of those consulted, I shall take his views on board and ensure that that is rectified in future. I think that I have answered most of the questions.
Question put and agreed to.
Resolved,
That the Committee has considered the draft Pensions Appeal Tribunals (Additional Rights of Appeal) (Amendment) Regulations 2006.

DRAFT PENSIONS APPEAL TRIBUNALS (ARMED FORCES AND RESERVE FORCES COMPENSATION SCHEME) (RIGHTS OF APPEAL) AMENDMENT REGULATIONS 2006

Resolved,
That the Committee has considered the draft Pensions Appeal Tribunals (Armed Forces and Reserve Forces Compensation Scheme) (Rights of Appeal) Amendment Regulations 2006.
Committee rose at twelve minutes to Five o’clock.
 
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