HC Deb 31 May 1963 vol 678 cc1805-18
Mr. Speaker

There are special circumstances now, and, in them, I am prepared to call the hon. Member for East Ham, North (Mr. Prentice), provided that the leave of the House be given.

3.3 p.m.

Mr. R. E. Prentice (East Ham, North)

With your permission, Mr. Speaker, and that of the House, I seek to speak again, having spoken in an earlier debate.

Perhaps it is worth recalling that the earlier debate was a wide one relating to the future financing of the United Nations. The subject I am now raising concerns one individual in my constituency. It is, I think, typical of the way the House ranges over a number of subjects on a day such as this that two such widely different matters should come be fore it. It is part of the strength of our Parliamentary institutions that we have debates here about individuals, and the House traditionally has been very concerned about injustice, or apparent injustice. to one person. This is right because we should have regard to the fact that, if one man is treated unfairly, this is not only an injustice to him but it contains a potential threat to others as well.

My submission is that Mr. Ernest Sadler, a 47-year-old ex-Service man living in my constituency, has been treated very unfairly as regards his war disability pension. Mr. Sadler joined the Army about thirty years ago as a very young man. He joined in 1933 and he served until he was discharged unfit for service in 1944. He was a very fit young man when he joined in 1933 and was still fit, graded as Al, when he was posted to India in 1938. It was while he was in India that he contracted bronchitis, bronchial asthma and emphysema, from which he has suffered ever since. He remained in the Army until 1944. He was in Egypt for a while, and his condition was complicated by the fact that he suffered from sandfly fever. He was finally discharged in 1944, grade E, suffering from bronchitis and the other associated complaints.

He applied for a war disability pension in 1944, and this was rejected. Later in the summer his Member of Parliament wrote to the Minister of Pensions. The matter was reviewed again, but the rejection was again upheld. In November, 1950, the British Legion made an approach to the Ministry of Pensions, as a result of which the evidence was again considered, but again his claim to a war disability pension was rejected. It was the view of the Ministry's medical division then, as it had been in 1944, that his complaint was neither attributable to his war service, nor aggravated by his war service.

In August last, Mr. Sadler wrote to Her Majesty the Queen referring to the matter again. As a result of that letter, the Ministry again investigated the matter and there was a further medical examination by the Ministry's doctors, and then a different view of the case was taken. The Minister then made an award based on what was then the view of his medical advisers. This view was that the disability was not attributable to service, but that it had been and remained aggravated by service. On that basis Mr. Sadler was awarded a 30 per cent. disability pension.

The question at issue is whether that pension should have been back-dated to 1944. The House will recognise that I am talking now of a period of 18 years, from 1944 to 1962. In my submission, in all fairness and justice, it should be back-dated to 1944. There is one point on which I am bound to carry the Joint Parliamentary Secretary with me. The Ministry's doctors in 1962 having decided that in their view then the balance of medical evidence favoured the claim, we must assume—and Mr. Sadler was entitled to the assumption—that from 1944 onwards his condition was aggravated by war service. As I understand the Royal Warrant, this must be the case if he is entitled to a pension now. The basic decision was that his condition was aggravated when he left the Forces, and has been aggravated ever since.

Although the doctors who considered this took a different view, it is the most recent medical view which prevails, and we must all make the assumption that since 1944 this man's disability has been aggravated by war service. If the doctors in 1944 had come to the same conclusion as the other doctors in 1962 came to, he would have been in receipt of a war disability pension during the intervening period. I think that most fair-minded people would assume that this would entitle him to back payment for the intervening years.

I want to examine the reasons given to me by the Joint Parliamentary Secretary why this cannot be allowed. The hon. and gallant Gentleman wrote to me on 28th February, and I quote this extract from his letter: This was in accordance with the provisions of the War Pensions Instruments which lay down that pensions shall not normally be awarded for any period before the date of application or appeal as a result of which an award is made. We could exercise discretion only if the claimant were prevented by very exceptional circumstances, such as serious or prolonged illness, from claiming or appealing earlier. Looking further into that, I consulted the Royal Warrant of May, 1949, which governs these cases. Paragraph 61 of the Royal Warrant deals with arrears and says: Except in so far as the Minister may otherwise direct with respect to any particular case or class of case, payment of a pension shall not be made in respect of any period preceding the date of the application or appeal as a result of which the claim to the award of the pension, or as the case may be, to the continuance or resumption of the payment of the pension, is accepted. The words which I wish to emphasise are "except in so far as the Minister may otherwise direct". The Royal Warrant does not set out precisely the rules and the cases in which there shall be back-dating or shall not be backdating. There are no precise rules in legislation or regulations. I appreciate that rules have grown up as a custom within a Ministry to distinguish between one case and another, but there is nothing which precludes the Minister from awarding back payment in this case. There is no legislation on which he can rely in telling the House that he is unable to make a back payment in this case. He has discretion, and it is discretion which he uses in thousands of cases. Certain rules have come to be followed. If in Mr. Sadler's case the Minister has followed rules similar to those used in other cases, then I suggest that the rules are too harsh, and if anything said about this matter will benefit future cases, that will be a very good thing indeed.

I have told the hon. and gallant Gentleman that I intended to refer to a similar case which was reported in the Press about the same time as Mr. Sadler wrote to me. Indeed, he drew my attention to it. It is related to a man in Romford, Essex, Mr. Alderson, who was 51 years old and who also in 1962 was awarded a disability pension arising from his service in the Royal Navy—a pension which had previously, I understand, been rejected. Mr. Alderson was given back-dating. He received a back payment of fl,200. The report reads, A Ministry of Pensions spokesman said: `Back-dating of pension awards is very unusual, but this was a really exceptional case'. Mr. Niall Macpherson, the Minister of Pensions, admitted in his letter to Alderson that he had broken a rule. 'In this case I feel the award is appropriate', he said. I do not know the details of the case, and I appreciate that some circumstances may be different, but I quote it to indicate that there are cases in which the Minister awards back payment. I submit that this should be done in the case before us. I suggest that the rule against general backdating is reasonable in cases in which a man has not bothered to apply. It seems to me that the fact that the Royal Warrant allows men to apply for a pension at any time, no matter how long afterwards, means that there must be some safeguard against excessive backdating to men who never bothered to make an application at all.

If Mr. Sadler had made his first application for pension in 1962, no one would quarrel with the decision that he was not entitled to have it back-dated, but he applied to 1944, and the British Legion took the matter up on his behalf again in 1950; and the medical facts were the same in 1944, 1950 and 1962. It is simply a question that the doctors who looked at the facts interpreted them in a different way in 1962 from those doctors who had considered them previously. Therefore, this is a man who had not neglected to make application. He had applied. I think that he had a clear case for having his pension back-dated.

But what seems to be the point against him—as far as I can make out, the only point against him—is that in 1951, on the second occasion that he was told that his case had failed, he was notified of his right to appeal, and he did not appeal. That seems to me to be the case against him—that he neglected to use his right to appeal to the pensions appeal tribunal. Naturally, I have taken this matter up with Mr. Sadler. and he tells me that he has been unaware all along of his right of appeal. When I raised the matter with the Ministry I was informed that he was notified of his rights of appeal, and I have been sent a photostat copy of a notice sent to him on 4th August, 1951. This is a fairly small piece of paper, and towards the bottom of it are two paragraphs in very small print, measuring in depth less than I inch, which tell him that appeal lies under Section 1(1) of the Pension Appeals Tribunals Act, 1943.

I remind the Parliamentary Secretary that it must be in his experience, as it is in mine, that, though there may be a formal notification of this kind on forms sent to applicants for pensions, it is not unusual for people in these circumstances not to understand their rights. Before I entered the House I was in charge of the advice and service bureau of my trade union, and I handled a large number of war pension appeals, many of which I argued before the pensions appeal tribunal. I found it to be very common indeed that people receiving that kind of notification did not really know where they stood and did not really understand what the procedure was. Having had the notification, they would say afterwards that they were not aware that they had had it.

This may be their fault. It may be said against Mr. Sadler or against someone else that he should have known, that people are assumed to understand official documents, and that people are assumed anyway to know what legal rights they have. I can only say that if Mr. Sadler's case falls on that ground it is a very legalistic and very harsh ruling indeed. After all, if he did understand his right to appeal, surely it is a right and not a duty to appeal. It is entirely wrong to penalise a man and deprive him of something to which any reasonable person would say he is entitled, merely because he failed to exercise a right. It is something which is voluntary.

People whose applications for pensions are turned down are offered the right of appeal if they wish, but they have no obligation to appeal. If a man has been told twice that he has no right to a pension, he might assume—this is not applicable in this case, but it might be in some cases —that there was no point in proceeding to a pensions appeal tribunal. That is a decision on which a man will have his own opinions. I do not think that he should be penalised one way or the other.

In fact, Mr. Sadler has been quite persistent about this. He has taken up the matter through several different channels over the years and I feel fairly sure that, if he had fully understood his right of appeal, he would have exercised it. The fact is that he did not. This is far too narrow a reason for depriving him of a pension to which he has a right.

I have raised this matter before in correspondence with the Joint Parliamentary Secretary. I have raised it at Question Time. The hon. Gentleman has been quite inflexible on the point. I put to him now one further argument which I have not put to him before but which has occurred to me on a further study of

the papers. When Mr. Sadler applied in 1944 there was at that moment, as I understand it, no automatic right of appeal. The case against him is that he failed to appeal in 1951. If he bad not had his case taken up by the British Legion in 1950, and if the only approaches to the Ministry had been the approach in 1944 and then the approach in 1962, it could not be said against him that he had been told of a right of appeal but had not used that right.

Then, if I interpret the Ministry's communications correctly, he might well have had this eighteen years back-dated pension. If I am wrong, perhaps the Parliamentary Secretary will tell me that I am wrong. If I am right in my submission, it means that Mr. Sadler has been penalised simply because the British Legion happened to make an approach on his behalf in 1950 and all that flowed from that.

The Joint Parliamentary Secretary to the Ministry of Pensions and National Insurance (Lieut.-Commander S. L. C. Maydon)

indicated dissent.

Mr. Prentice

The Parliamentary Secretary shakes his head. Perhaps he will tell me where I am wrong.

It seems to me that this whole case hinges on a very narrow point. This man has served his country well. He served in the Forces for eleven years, having joined at a very early age. He has been awarded the George Medal for loyal service to the country. Since 1944 he has been plagued by this serious illness. All the time this illness, we must now assume, is an illness which was aggravated by his war service. For some years now he has been largely dependent on his wife, who has been running for him and for the children a small second-hand furniture business in my constituency. She herself has been in bad health recently. I need hardly remind the Parliamentary Secretary what this backdating would mean to this family in human terms. I should have thought that the Joint Parliamentary Secretary or the Minister considering this case would have said, "Can we possibly find a way of making this back payment?" instead of which it seems that they would rather consider the matter the other way round and see an excuse for not making it. This is mean, and if that meanness is according to precedent, the Ministry has been mean in the past; and it is about time that it was stopped.

There is nothing in legislation or the Royal Warrant which precludes the Minister from awarding a back payment in this case. I urge the Ministry, even at this late stage, to look at this case again to see whether the matter cannot be interpreted in favour of this applicant. I am sure that any fair-minded person would say that a man who has been disabled all these years by his service to the nation and who has suffered accordingly should have his pension backdated.

3.21 p.m.

The Joint Parliamentary Secretary to the Ministry of Pensions and National Insurance (Lieut.-Commander S. L. C. Maydon)

The last thing we set out to do is to be mean. In fact, we always lean over backwards to try to find ways of helping pensioners where the way is not immediately obvious. On the other hand, we must be fair to the generality of pensioners—and to make exceptions in special cases would make for unfairness to pensioners in general.

Before outlining the case and giving the reasons why we are unable to do what the hon. Member for East Ham, North (Mr. Prentice) has asked us to do, I will answer some of the points he has made and tell him why I think he is wrong in them. Early in his speech he said that Mr. Sadler had applied in 1944. This is not so. He was invalided out of the service before the war had ended. He did not claim then, but the Ministry, on its own initiative, treated a letter from Mr. Sadler to his hon. Member at that time, which was concerned solely with raising funds to carry on business on his own account, as a claim for pension for any disablement incurred during his Service.

We treated that letter as a claim and that was the first occasion on which Mr. Sadler was notified that we could not accept the claim, and that even at that early date he had rights of appeal. These rights of appeal date from the Pensions Appeal Tribunals Act, 1943, a year before this happened. On the form which Mr. Sadler was sent in 1944 there was a notification that he had rights of appeal under Section 1(1) of that Act.

The hon. Member for East Ham, North then referred to another case. I can assure him that the two cases are not comparable. The difference, briefly, is this. In the other case the pensioner, through what was accepted to be a mental disease, was not aware of his rights. On two separate occasions he failed to appear before a tribunal, either because he had forgotten or, perhaps, because he did not appreciate that he had been asked to do so. In reviewing the case we accepted the fact that he was so mentally afflicted as to be incapable of acting in his own best interests, and we were able to back date his claim for a number of years. In the case of Mr. Sadler, there is no question of any form of mental disease which would make such a course of action possible.

The hon. Member then referred to the documents which we send to pensioners and, in particular, to the Ministry of Pensions form stating that the claim had been turned down, Form MPB203F. He said that towards the bottom of the page there were two small paragraphs stating the details of how an appeal could be made. That is perfectly true. They are the two last paragraphs on the page above the signature. I would have thought that they were in a fairly conspicuous position on the page, but they are not the only references to the rights of appeal.

If the form is turned over, on the other side in paragraphs 3, 4 and 5, it will be seen that there are references to rights of appeal and to how the applicant, if he wishes to seek assistance, should get that assistance in drawing up his application for appeal. I do not think that anybody who can read normally can possibly argue that the receipt of such a form would not convey to him that he had very considerable rights of appeal.

Mr. Prentice

Would not the hon. and gallant Gentleman agree from his own experience as a Member of Parliament, which is similar to that of all of us, that many people who are very intelligent and literate are nevertheless baffled by the requirements to use certain procedures notified to them in forms of this kind, whether Inland Revenue or pensions administration or other forms of administration? Do we not constantly have that sort of experience? Does not this, therefore, amount to a very narrow reason for preventing a man from getting the backdating to which he would otherwise be entitled?

Lieut.-Commander Maydon

I quite agree. I find myself that official forms are exceedingly confusing and I agree that members of the public are frequently confused by them. On the other hand, we went out of our way with this form to say to the applicant: Should you wish to seek assistance or advice in connection with an appeal to the tribunal it can be obtained… and then there are given details of those from whom assistance and advice can be obtained. I do not think that we could go further than that.

I think that I have covered the hon. Member's question about the appeal of 1944 in my earlier remarks.

I have tried to explain the rules which we have to follow in these cases of back-dating. We have to lay down these rules in order to be fair between one pensioner and another. There are three main rules in this connection. If a man is suffering from physical or mental incapacity to such a degree that it makes him incapable of pursuing a claim, or making an appeal, then we take that into account and allow arrears to be paid. Secondly, if there are exceptional geographical reasons, for instance, that a claimant has had to be away in Australia or South America or somewhere else and was thereby unable to claim, we would make allowances for that. Thirdly, if some action or omission on our part had clearly misled the claimant, or if there had been some wrong procedure, obviously we would allow arrears to be paid. Obviously, if there had been some clerical error or error in the interpretation of medical evidence, or something of that nature, we would allow arrears to be paid. In this case there is none of these three and, therefore, we have had to turn the claim down.

I should like to give a brief summary of what has happened. Mr. Sadler was invalided out of the Army in 1944, when the war was still on. The Ministry at that time found on the evidence available that his disability, which was bronchitis with severe bronchial attacks, was not due to or aggravated by his service. He himself did not claim at that time. but on our own initiative we treated a letter which had been received by his Member of Parliaments as a claim, as I have already mentioned. Formal notifications of the rejection of this claim were sent to Mr. Sadler on three occasions in 1944, but on each occasion the form was returned, as apparently he had changed his address and the postal authorities were unable to trace him.

Mr. Sadler, however, allowed six years to pass before coming forward again, in 1950. His case was considered again and a formal notice of rejection was sent to him in 1951 setting out his rights of appeal to the pensions appeal tribunal. He later claimed that he had not received this notification, but it was not returned to us by the postal authorities, as earlier notifications had been. Moreover, he was told on the form of this 1951 notification that his case was being referred to the Royal Hospital, Chelsea, for consideration in connection with a pension claim for service between the wars, for which the Ministry of Pensions is not responsible. He mentioned this reference in a subsequent petition to the Queen, and this seems to imply that he must have received the notification, otherwise he would have had no knowledge of the reference of his claim to the Royal Hospital, Chelsea.

Mr. Sadler then allowed eleven years to pass before he came forward again, in July last year. We, in July, 1962, gave further consideration to his representations and a different medical opinion was sought. We were still unable to accept that his condition was attributable to his war service, because there was a long history of chest trouble before his war service and he admitted that this dated from an attack of pneumonia at the age of approximately seven years.

As to the question of aggravation of his complaint, the records show that Mr. Sadler's war service had not been strenouous but, bearing in mind that he had been invalided during the war, and taking the most sympathetic view, we were able to give him the benefit of the doubt and accept that his disability had been aggravated by war service. We were then able to award him a pension at the 30 per cent. rate.

A disability of 30 per cent. is not a remarkable thing in a man of nearly forty years of age with a long history of chest trouble going back to childhood. There was very real doubt whether his disablement, from this constitutional and progressive condition, would have been any less if Mr. Sadler had not served in the Army. On this history there are no grounds on which the Minister would be justified in exercising his discretion to pay arrears back to 1944.

Mr. Sadler has allowed two periods, one of six years and another of eleven years, to pass without coming forward. There is no evidence, nor does he claim it, that he was prevented by illness, mental incapacity or any other special reason from pursuing his case with the Ministry or taking it to a pensions appeal tribunal like any other disappointed claimant would do. Even if, despite indications to the contrary, it is maintained that he did not receive our notification of 1951, surely, hearing nothing from the Ministry all that time, he could have inquired in his own interests. Nor is there any evidence that he was misled by the Ministry by way of wrong advice in connection with his claim. Nor, finally, has it been established that the earlier Ministry decisions were clearly wrong by the standards of the time.

Mr. Prentice

Surely it is now the assumption—it must be—that this complaint was aggravated by war service from 1944 onwards, and therefore the earlier Ministry decisions, although they may have been reasonable decisions on the evidence, have been overruled. We are talking about a condition which has been aggravated throughout this period. I would hope that this is common ground between us.

Lieut.-Commander Maydon

I am afraid it is not common ground that in July, 1962, when we accepted that the condition was aggravated by war service, necessarily means that on the evidence it must have been aggravated by war service some years previously. This is a clear-cut case, because bronchitis, as we all know, is a progressive disease. It can get worse; and it can get better. I do not think there is any evidence to show that the previous decision by the Ministry's doctors was erroneous. If there were any evidence to show that, we would be allowed by our rules to accept Lint we had given an erroneous decision and we would pay arrears, but there is no evidence that that has happened.

Mr. Prentice

I am grateful to the hon. and gallant Gentleman for giving way to me again. I have one of the Ministry's forms and the wording is: …that the disability has been and remains aggravated by war service. Therefore, there must be this assumption, now that the decision has been made in his favour, that the condition was aggravated in 1944.

Lieut.-Commander Maydon

No. At any point of time one can say that a condition has been aggravated by something that happened in the past, by his war service, but to say that does not necessarily mean that six months before that point in time, or 11 years—as it would be in this case—before that point in time, the condition was then aggravated by something that had happened in the past. I think we can be quite clear on that point. It is an interpretation of the two words "has been". It is the condition which "has been" aggravated; it is not the aggravation going back over a number of years.

Whether an appeal to the pensions appeal tribunal, had it been made at any time in the past, would have succeeded must be a matter for speculation, but it would be very unfair to the generality of pensioners who follow the procedure correctly—sometimes without advice but, of course, more often with advice—and who appeal to the tribunal and have to be turned down by the tribunal. But to put Mr. Sadler in a position where we say hypothetically that had he appealed to a tribunal it is very likely that his appeal would not have been turned down, and to pay him the arrears of pension assuming that the hypothetical had happened some years previously, would be very unfair to the generality of pensioners who follow the procedure quite correctly.

Mr. Prentice

In what way unfair?

Lieut.-Commander Maydon

Because they have followed the procedure and have been turned down by a previous pensions appeal tribunal. To give a man advantage because he did not follow the procedure and to make a guess and say that had he done so perhaps the pensions appeal tribunal would have upheld his appeal would be grossly unfair to all those whose appeals had been turned down by tribunals.

I am afraid that we must keep to the rules in this case. We are always willing to reopen and re-examine these disability cases. We have done so as sympathetically as we possibly could in this case, and we can see no fair grounds for granting Mr. Sadler the arrears of pension.

Question put and agreed to.

Adjourned accordingly at nineteen minutes to Four o'clock, till Monday, 17th June, pursuant to the Resolution of the House of 28th May.