HC Deb 07 December 1965 vol 722 cc304-12

6.23 p.m.

Mr. David Weitzman (Stoke Newington and Hackney, North)

I am grateful to have the opportunity of raising the case of a constituent of mine, a Mr. Girdlestone, and the question of his pension. I have endeavoured to obtain what I consider to be justice for this man since the end of 1962. I will state the facts quite shortly.

Mr. Girdlestone is now a man of 41 years of age, employed as a bank messenger and living with his wife and family. When 16 years of age, he joined the Royal Air Force, but he was discovered to be under age and he was discharged. In 1943, when 18 years of age, he volunteered for service in the Royal Navy. He was then a fit man in all respects and was graded A, Class 1. He saw active service for some time.

In 1944, when aboard His Majesty's ship "Wyne", he was operating a signal lamp when an Oerlikon gun was fired and only the guard rail saved him from serious injury. This man, who had never suffered from ear trouble before, had the membranes of his eardrums shattered by being in close proximity to the Oerlikon gun, a disability later diagnosed by a medical board as bilateral chronic suppurative otitis media. He received treatment for this and he was assigned to service ashore where a doctor would be available. He had previously been classified Grade A, but after his injury he was reclassified Grade 5. The condition was aggravated by service in a tropical station, as was confirmed by a specialist at the 58th General Hospital, Freetown, Sierra Leone.

Before the accident, he had been accepted as a C.W. candidate for the Fleet Air Arm, but on arrival in the United Kingdom to commence training he was found to be medically unfit and he was classified Grade 6. He received treatment from time to time, but he continued his service ashore until 1946 when he was discharged. A medical board on his discharge marked him Grade 1.

When he was discharged as Grade 1, he naturally assumed that he was cured and that there was therefore no question of any claim by him. He was not troubled for some years, apart from some visits to his doctors in the intervening years, but in 1955 his doctor sent him to Guy's Hospital where he has since been treated and is still being treated for his ear complaint. In August, 1962, a medical board found that his disability was aggravated by service, but that finding was clearly not correct and in November, 1962, on appeal, it was held that the disability was attributable to service. The net result was that from 4th June, 1962, he has been in receipt of a 20 per cent. pension.

I have related the facts as simply as I can, and clearly on those facts this man's disability, attributable to service, existed at the date of his discharge on 16th August, 1946, and prima facie he is entitled to his pension from that date. Why, then, has he not been paid?

I made representations to the Parliamentary Secretary to the Ministry of Pensions and National Insurance in the last Government, who, on 6th March, 1963, wrote to me to point out that it was a long-standing rule that a pension should be awarded only from the date of application and that discretion could be exercised in applying that rule only in exceptional cases. He cited a case where a claimant had been prevented from claim- ing earlier by serious and prolonged illness. I made persistent efforts to move him, but without success.

I thought that I would get more sympathetic treatment from a Labour Government and so I made representations again. But again I was met with the answer that the rule was that payment should not be made in respect of a period preceding the date of application except in so far as the Minister would direct. However, in his letter of 3rd March, 1965, the present Parliamentary Secretary said: The need for a rule of this kind arises from the fact that we are prepared to consider claims without any time limits at all"— and he underlined the words "without any time limits at all"— but by so doing we cannot accept an undefined and virtually unlimited liability for arrears". Then he went on: The rule is waived only in exceptional circumstances; for example where a man is prevented from claiming by serious physical or mental illness, or by incorrect advice given by us. I attach a great deal of importance to those words— by incorrect advice given by us. What is meant by the word "us"? Clearly it means the authorities, and that must include the medical board—in the case of this man the board which discharged and marked him Grade 1. He had to assume that that finding was correct and, apart from attending a doctor from time to time, did not suffer real trouble until 1955, when he attended a specialist at Guy's Hospital. He has attended ever since.

It might clearly be said that this man was lulled into a state of acquiescence by the medical board's finding in 1946 that he was Grade 1. I should have thought that this was a reasonable inference to draw. The Ministry excuse is that he was informed of his rights on discharge. That may be so and I have no doubt about that. My constituent would not be warned on discharge, because he was told by the medical board that he was all right. Why should he bother about advice of that kind? His medical board had graded him Grade 1. It is said that there was considerable publicity thereafter, and again that may have been the case, hut, having been informed that he was all right in 1946, there was no reason why such publicity should be drawn to his attention. On the facts of this case it was not until 1962 when Mr. Girdlestone, quite by chance, read a letter in the News of the World from an ex-Service man in similar circumstance, that he realised he could make a claim and immediately did so and the claim was allowed.

I have six submissions to make. They are: (1) the Ministry itself recognised on the facts that Mr. Girdlestone was entitled to a pension from the date of his discharge in 1946; (2) if he had then made a claim it must have been allowed; (3) the medical board's action in marking him Grade 1 on discharge was wrong advice, given on behalf of the Ministry, and certainly had the effect of making Mr. Girdlestone assume, as would any reasonable man, that he was cured and had no claim; (4) there was no publicity which would have effectively drawn my constituent's attention to his rights in this matter; (5) it was only by pure chance that he discovered he had such rights; (6) most important of all, it would be iniquitous if, in the circumstances, he was denied something to which he is clearly entitled.

I have pursued this matter for a long time, and I hope that at long last a Labour Government will do justice in this case.

6.35 p.m.

The Joint Parliamentary Secretary to the Ministry of Pensions and National Insurance (Mr. Harold Davies)

The issue which my hon. and learned Friend the Member for Stoke Newington and Hackney, North (Mr. Weitzman) has raised tonight is a very simple one—the starting date of Mr. Girdlestone's pension. But it also raises an important point of principle. A charge has been brought against my Department that Mr. Girdlestone was penalised because he claimed late. During his speech—and I would like to pay tribute to the courteous and incisive way in which my hon. and learned Friend has made his case—he has sought to criticise both the general rule which governs arrears of war pension and its particular application to Mr. Girdlestone. I hope to satisfy my hon. and learned Friend and the House that not only is the general rule a fair and essential rule, but that there is no foundation for the suggestion that the lateness of Mr. Girdlestone's claim was attributable in any way to a mistake or misdirection on the part of my own Department or that of my right hon. Friend the Secretary of State for Defence.

I should like to begin by restating the general rule, which is embodied in Article 65 of the Order in Council under which the starting date of Mr. Girdlestone's pension falls to be considered. There is a similar provision in the other war pensions instruments. The article reads: 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. This article reflects a rule of long standing which has been developed over the years by successive Ministers of Pensions as part and parcel of an integrated system under which claims can be accepted without any time limit at all and upon conditions which have been deliberately made as favourable as possible to the claimant.

I would remind the House that claims to a war pension are still being made for the first time in respect of service which ended 10, 20, 30, or even 50 years ago. Mr. Girdlestone's own claim was made in 1962 in respect of service which ended 16 years earlier. Nor is it simply a matter of men who have not claimed at all. There is also the question of claims for review. For example, take a claim that was made in 1952. The evidence at that stage is all against the claimant and the claim has to be rejected. Perhaps 12 years later it is renewed with new evidence, and on that evidence, and giving a generous benefit of the doubt, it is granted. It is surely not suggested by my hon. and learned Friend that we ought to make the pension payable from the original claim 12 years before. Mr. Girdlestone made no claim of any kind before 1962.

Mr. Weitzman

No one has suggested that in the ordinary way, if a person makes a claim 16 years late, and there is no valid reason for its lateness, that person should be given a pension for the earlier period. It is reasonable that he should not. My case is based upon the fact that when this man was discharged in 1946, he was found by a medical board to be Grade 1. Any reasonable person would assume from that, "True, I suffered an injury two years before, but I am cured". When it comes on after that—

Mr. Speaker

Order. The hon. and learned Gentleman cannot make his speech again.

Mr. Davies

Thank you, Mr. Speaker. I take my hon. and learned Friend's point. Form MPB 281 clearly provides: This form is to be used only if you claim to be suffering from a disability attributable to or aggravated by war within six months of war service…. After six months from the cessation of service pay, any claim to pension must be made on a different form to be obtained from the nearest office of the Ministry…". When a man was discharged from the Navy that form was given to him.

My hon. and learned Friend made the point that Mr. Girdlestone was misled because of the medical category. Nine years went by in which there is no record of ear trouble. However, I must be fair to my hon. and learned Friend. He pointed out that there had been two visits to doctors through ear trouble. At no time, unfortunately, did Mr. Girdlestone make use of his right to appeal either through the local war pensions committee or through the British Legion to get the claim spiked down. Consequently, the only conclusion which one can make is that in that nine years his ear trouble was not serious enough to cause him great concern.

We have to be realistic about this and to recognise that in the absence of some clear rule we would be faced by what would virtually be an open-ended liability in respect of all late claims or appeals, quite apart from the cost of meeting them currently. If we were, in effect, to be held to ransom in respect of arrears for every late or renewed claim, no matter how long after service they were made and irrespective of there being any good cause for the delay in making them, it is very questionable whether we could continue without invoking some sort of time limit, as was done after the First World War, or imposing less generous terms of entitlement. But we have no time limit whatsoever, and, as my hon. and learned Friend will know, only last year we made the most generous war pension provision ever.

One cannot have it both ways. We are handling public money which is to be applied to the payment of pensions and we have to be careful not to accept an unlimited liability which might endanger the financial arrangement of the whole scheme. I am in no doubt that the rule we now have operates, on balance, very much to the advantage of claimants generally; and this is, I think, well understood in ex-Service circles.

There is also a very real practical objection to the automatic payment of arrears. Often it would be difficult, if not impossible, to make accurate assessments retrospectively. We should have to try to think up over past years from scanty and often non-existent evidence what the degree of disablement was. There could be periods when the disability in question was causing no disablement. It would clearly give rise to inequality of treatment with pensioners who can be given proper assessments based on current medical examination if we were to try and make some kind of notional assessment back over the past.

All this does not mean, however, that we apply the arrears rule with absolute rigidity. The Order in Council, as I have said, gives my right hon. Friend a discretion to waive the rule, and, where there are exceptional circumstances, she does not hesitate to do so. These might be, for example, when a claimant is prevented from claiming earlier by some factor outside his own control, such as a serious illness or mental incapacity, or where there has been manifest official error or misdirection. But the circumstances must be exceptional. It is not enough that the claimant should simply be unaware that he could make a claim, or did not trouble to pursue it; and, with great respect to my hon. and learned Friend, this is really the position in this case. As he will appreciate, it can be said of virtually all late claims that, if the claimant had known he might have got a pension earlier, he would have applied earlier. To regard that as a justification for waiving the rule would really be tantamount to destroying it.

My hon. Friend argues that in Mr. Girdlestone's case there were particular reasons, not of his own making, which led him to think he could not claim. This was the nub of my hon. and learned Friend's argument, that Mr. Girdlestone was discharged in 1946 as fit for further service—he says in Grade 1—whereas he should have been invalided, and that this misled him. But for this, he says, he would have claimed earlier.

In his letters Mr. Girdlestone has based the contention that he should have been invalided upon his having been downgraded to medical Category 6. He was not, in fact, put in Category 6 at all. When he was medically downgraded in December, 1945, he was put into Category 5. This meant that he was fit for shore and harbour service at home and abroad except in tropical areas. Even if he had been put in Category 6, however, there would still have been no question of automatic invaliding.

Mr. Girdlestone has further contended in his letters that in August, 1946, he was discharged as Grade 1 and thought as a result that he must be ineligible for a pension. The service documents show that he was not discharged in Grade 1, but released in Grade 2. This was a medical category introduced in 1946, when the system of classification was simplified, to replace the earlier Categories 4 and 5. He was regarded as still fit for service, subject to the same medical limitations as before. The release medical report which was made in June, 1946, does in fact specifically draw attention to his permanent downgrading only six months earlier. I can only think that Mr. Girdlestone may have confused a Class "A" release with a Grade 1 medical category. The term "Class A" had, of course, nothing at all to do with medical categorisation; it simply meant that he was due for release in the normal way and not in any priority class.

I must, however, go further and point out to my hon. and learned Friend that it is really irrelevant whether or not Mr. Girdlestone was Grade 1 on release. Even assuming he had been found to be Grade 1, this would still afford no ground for exceptional treatment. Many men incurred disabilities in service which cleared up and gave no trouble at the time, but started to give trouble again later.

This is precisely what happened with Mr. Girdlestone's ear trouble. On his own admission he thought he was cured. He had no significant disablement from his ears when he was released or for two years afterwards. His National Insurance records show that between July, 1948 and November, 1954 he had no time off for certified sickness. He himself signed a form when he was released to say that he was not suffering from any complaint. It was, nevertheless, made plain to him at the time that he could claim a war pension if he thought that any condition he was suffering from was due to service; the documents handed to all naval ratings on release, in fact, included among them a claim form for pension.

The fact is that it was open to Mr. Girdlestone at any time to put in a claim. He said that he had a recurrence of ear trouble in 1948, two years after his release, and went to his doctor, though his doctor has not recorded it. He could have claimed then. He attended Guy's Hospital in 1955. He could have claimed then, but he did not make a claim until 1962. There is no evidence of any exceptional circumstances. This is the nub of our argument. I have already quoted from the article. We see no exceptional circumstances whatever in the history of Mr. Girdlestone's case.

I have sought to explain the reasons for the rule. I hope that the House will be satisfied that there are solid reasons for it and that it is a rule that we could not abandon or relax without great hesitation. Mr. Girdleston's claim has been dealt with in accordance with the rule. His case affords no ground for special treatment under it. There is no question of the Department acting harshly. We have decided the claim, as we seek to decide all war pension claims, in the light of careful and sympathetic consideration of the facts. Having gone in depth into the medical history of Mr. Girdlestone's claim, I regret that I can see no other course than the one which we have taken.

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