HC Deb 16 November 1970 vol 806 cc972-83

8.45 p.m.

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

I am grateful for this opportunity to raise this important matter involving one of my constituents. I do not mention his name because he was discharged from the Navy as being a psychopath and I hope that the Minister will agree that to mention his name might affect him in the future.

I have referred to this matter as affecting a constituent and his right to war disability pension and although this is an extraordinary and possibly an exceptional case it raises important problems that might well affect pensioners who have suffered war disability. To appreciate these problems, it is necessary for me to deal in some detail with the background.

The short facts are as follows. My constituent was born in 1926. There was evidence produced before the tribunal which showed that as a boy he attended school normally. His family and medical evidence showed that there was nothing abnormal about him. Indeed, as a boy of 13 his father paid £70 to place him in the Navy where he remained for about a year and where there was no question of any disability. Presumably he was examined then when he went into the Navy. During the war, in October, 1943, he enlisted in the Navy, saw service and was discharged from the Navy officially on 25th March, 1946, although the actual date of his leaving the Navy was 18th January, 1946. For his service he was awarded the appropriate medals: the 1939–45 Medal, the Burma Star, the Italian Star, the French and German Star and the War Medal. He was discharged as permanently unfit for any form of Royal Navy Service in consequence of being a paranoid psychopath—that was the wording on his discharge.

In February, 1946, soon after his discharge, he applied for a pension, which was refused. He applied again in 1951 and there was a hearing before a tribunal. The tribunal dismissed the appeal on the ground that his condition was not caused by or aggravated by his naval service. He approached me as his Member in 1966 and I then took up his case. I had considerable correspondence and a number of personal interviews with the then Ministry of Defence for the Royal Navy and various Ministers of the Department of Health and Social Services, as it then was. I was stonewalled by refusals to do anything. The answer was that the tribunal had made their finding and that the Minister must adhere to it.

Fortunately at that time, or very soon after my interviews, the legislation appointing the Parliamentary Commissioner was brought before the House and I had the opportunity to refer to this case both on Second Reading and in Committee. I succeeded in getting the ruling that although the Parliamentary Commissioner had no power to deal with what was an appeal from a tribunal, he could deal with the matter if it were shown that all the relevant documents were not before the tribunal. Therefore I referred the matter to the Parliamentary Commissioner.

It was then found that certain documents were not before the tribunal. One of these was a vital document in the form of his attestation paper, which showed that a medical examination had taken place on enlistment in the Navy in October, 1943, and that he was perfectly fit in all respects. That document was missing and was not placed before the tribunal in 1951. As a result, the hearing before the tribunal in 1951 was declared a nullity and a new hearing was ordered.

I thought it right personally to represent my constituent at the hearing, which lasted two days. In the result the tribunal found that his condition was not caused but was aggravated by his naval service and that he was entitled to a pension. I must accept the finding of aggravation and not causation, although frankly I would have thought it a clear case on the evidence of his condition on discharge having been caused by his service. On that finding of aggravation he was fully entitled to payment of his pension.

He was paid his pension, and the first thing the Minister did was to pay it back to 1951, the date of the first tribunal. It was for a 20 per cent. disability. I was indignant about this and wrote to the Minister of State for the Department of Health and Social Security and saw him personally. I raised three points with him. One was that it was wrong to date the pension from 1951 and that it should have been from the date of discharge, 1946; secondly, that the pension was at the rate of 20 per cent.; thirdly, that nearly 24 years later my constituent was being paid the arrears at the rates current in 1946, 1952, 1955 and so on. After argument, the Minister conceded the first point, that the pension should be back-dated and paid from 1946, the date of his discharge. But the Minister refused to give way on the other two points. My plea tonight is on those two matters, and I shall deal with them in a little detail.

First, there is the question of the correctness of the assessment of 20 per cent. disablement. On enlistment, my constituent was medically examined and found fit in all respects. He was medically examined before his discharge, and the statement of case which was submitted to the tribunal contains details of that examination. I should like the Minister to listen carefully to this. It contains no reference whatever to any assessment of disability. The Minister has said to me, in a letter, that it is not the practice to refer to the assessment. But—I emphasise this—it contains this report by the medical officer in charge of the case:

"Question: How does the disability affect his capacity for work in comparison with a normal healthy man of the same age?

Answer: Will not be affected more than formerly in civil life."

There follows a statement that the invaliding medical board confirmed the findings of the medical officer in charge. The reply was that he would not be affected more than formerly in civil life, in answer to the question: How will his disability affect his capacity for work in comparison with a normal healthy man of the same age?

In view of that, how can the Minister say that there was an assessment of 20 per cent. disablement on discharge? It is not shown on the statement of case. How can the Minister say that and, at the same time, say that my constituent would not be affected more than formerly in civil life?—except, of course, upon the assumption, wrongly made at that time and found later to be wrong by the tribunal, that his condition was not aggravated by his naval service. In other words, the Department begged the question. It assumed that the aggravation was not due to naval service, and it was wrong, as shown by the finding of the tribunal.

Moreover, the history of the man during the years that followed, well known to the Ministry, and set out in a statement of case, showed that he suffered considerably. Immediately on his discharge, he got a job for two weeks, and he was discharged because of his condition. Later there followed numerous jobs, and considerable spells of unemployment because of his condition—depression, headaches, illnesses. His history showed clearly that, during the 24 years which followed his discharge, considerable variations in his condition and, therefore, in his disability had taken place.

The remarkable thing is that although there had been a medical examination on his discharge in 1946, it was not until after the finding of the tribunal in 1969, nearly 24 years later, that a medical examination was held. He was then examined and, presumably, assessed at a 20 per cent. disability. How on earth the Ministry can say that it must take 20 per cent. disablement as correct during those 24 years I do not know. It passes my comprehension, particularly when I bear in mind the variations shown in the man's history. At times, of course, there was improvement, but there was certainly a decline in his condition over a considerable period. There was no medical examination by the Ministry, through the Ministry's fault, not his, during the whole period.

How, therefore, having made no examination whatever during that period, can the Ministry argue with any sense of justice that this man's disability, the result of aggravation, remained steadily at 20 per cent.? Frankly, I believe that what the Ministry has done in this case has been to take the assessment of 20 per cent. at the end of 1969 and assume that it was correct all through the years. This will not do.

I come to my second point. The scales of pension from 1946 for a 20 per cent. disability varied as follows: 9s. a week in February, 1946, rising to 11s. in May, 1952, to 13s. 6d. in February, 1955, to 17s. in January, 1958; and then, after other variations, it became 34s. a week in November, 1969. So what was considered a proper allowance of 9s. in 1946 became 34s. in November, 1969.

Obviously—I suppose that the Minister will agree on this, at least—what could be bought for 9s. in 1946 has no relation to what could be bought today. Yet this man, now shown to be entitled to payment of his pension, is paid in 1969 arrears of pension at the old rates. Plainly, if he had been paid 9s., 11 s., or 13s. 6d. at the proper time, as he should have been, he could have bought what he needed at the prices currently obtaining.

When I raised this question, the Minister of State at the Department of Health and Social Security, in a letter dated 8th June, 1970, said: I accept that the pension arrears he is getting will buy less now than would have been the case had his pension been in payment at the dates to which it relates, but this is a problem which, to a greater or lesser degree, affects all pensioners who get arrears. To suggest that arrears should be paid at a higher rate than that appropriate for the period they cover would confer an advantage on pensioners who get arrears over pensioners whose pensions were applied for and paid at the due date. Payment at the rates appropriate to the period in question is, as I am sure you know, a feature common to the whole field of social security benefits, and I am afraid that I cannot contemplate any change of this practice.

A delightful answer!

Of course, if a person is at fault in not making a claim at the time, he ought not to have what the Minister suggests would be an advantage. I do not dispute that for a moment. Here, the Ministry is at fault. My constituent applied for his pension in 1946, and he should have been paid then. He was not paid then because the Ministry erred. The Ministry, not my constituent, was wrong.

It is a well-known canon of our law that no one should be allowed to benefit from his own wrong doing. The Ministry should not be entitled here to benefit because of its wrong doing, because of a mistake which the Department itself made. Moreover, if my constituent is paid arrears at the proper rate, he will have no advantage. He would be paid such sum as will enable him to purchase things which he could have acquired in the former years at the prices current then.

It is not just that, having been shown to be wrong, the Ministry should, more than 20 years later, take advantage of its own mistake by making the payments in the way it has. I press upon the Minister the gross injustice in the two matters which I have raised. There were three. The Minister has been good enough to rectify one. I urge him to rectify the other two. I ask only for justice to my constituent. At the very least, I want the hon. Gentleman to say that he will look again at these matters and give further consideration to them.

9.0 p.m.

The Under-Secretary of State for Health and Social Security (Mr. Paul Dean)

One of the glories of the House is the careful attention which is paid to the problems of individuals. I am sure that the House is grateful to the hon. and learned Member for Stoke Newington and Hackney, North (Mr. Weitzman) for raising a personal case today. It is a complex case involving the extent of disability where it cannot be attributable to service but is acceptable as having been aggravated by service.

I fully admit that, in spite of the best efforts of the Department, things went wrong, particularly in the early stages. As the hon. and learned Gentleman said, much has been done to try to put it right. I hope that the hon. and learned Gentleman and the House will agree that in complex matters of this kind the Department has an immensely good record and that our war pensioner service is one of which we can be justifiably proud.

I turn to the main points that the hon. and learned Gentleman raised with regard to his constituent and, in doing so, I express my sympathy with his constituent in the difficult medical situation in which he finds himself. Before turning to the particular points raised by the hon. and learned Gentleman, I want to paint the background with regard to assessments.

The normal method of arriving at an assessment is to determine by medical examination the loss of faculty resulting from the accepted disablement by comparison with the condition of a normal healthy person of the same age and sex. During the continuing course of disablement the pensioner will undergo further examinations, usually at two-yearly intervals, if there is any doubt about the continuing correctness of an assessment. The pensioner may himself at any time tell us that in his opinion his disablement has been under-assessed or that his condition has deteriorated. Where necessary, a further medical examination will be arranged.

If the Department is satisfied that the assessment should not be altered, except in certain past cases where a pension has not been in payment for two years, the pensioner is told that he has an immediate right of appeal on assessment to the Pensions Appeal Tribunal. In these ways there is an assurance that where there can be any doubts about the level of assessment these doubts can be resolved on the basis of full and recent medical knowledge of the case.

Where a claim is made or admitted many years after disablement, the Department and the pensioner are denied this means of arriving at a correct assessment on the basis of proper medical informations. Where a claim is late there is normally no question of back-dating an award. This is a counterpart of the Department's willingness to accept belated claims. Back-dating arises, however, in exceptional cases like that of the hon. and learned Gentleman's constituent where it is accepted that the Department has been guilty of relevant error or misdirection.

Mr. Weitzman

The Under-Secretary read out the regulations, which I appreciate, with regard to periodic examinations. He must appreciate that there was a refusal in 1951 by the tribunal and, for that matter, in 1946. There was no question of any examination or of any right on the part of the claimant to claim an examination. The only time that his right to claim an examination arose was after the tribunal's finding in 1969.

Mr. Dean

I will come to that point in a moment. I do not entirely accept the hon. and learned Gentleman's argument. I will complete the background to the picture before coming to the detailed points.

Where arrears are to be paid, the Department is committed to doing all that it can to obtain suitable medical and other evidence on which an opinion can be formed about an appropriate assessment for the past period. This will involve obtaining information from the claimant's doctor and from hospitals. The claimant's sickness and employment records will also be obtained where necessary. These facts and the medical records during service and the current medical board's findings are then viewed as a whole, and may be supplemented by a specialist medical report before an opinion is arrived at on the correct assessment for the past.

There is often a tendency for a pensioner or his representatives to argue in such circumstances that the current assessment must always have applied to past periods. This clearly will not be so in the case of progressive diseases and will equally not be so for disablement which improves in time.

There is, too, the need to be fair to other pensioners. If too generous a view is taken of the likely past degree of disablement, it could properly be charged that there was advantage in delaying a claim. In such circumstances, our doctors are not faced with an easy task. It is one which must not only be fair to the claimant but must also be seen to be fair to other pensioners.

Mr. Weitzman

The hon. Gentleman talks of delay and of the need for justice to be done in not allowing an advantage to persons who have delayed their claims. In this case there was no question of delay. The Ministry was wrong and it was only after many years that this claimant established his right. Nobody is suggesting that there was a delay or that advantage was gained as a result of it.

Mr. Dean

Before coming to the case which the hon. and learned Gentleman raised I was giving the background against which this type of difficult and complex case must be judged in relation to the claims or possible claims of other pensioners or likely pensioners.

The hon. and learned Gentleman referred to the 20 per cent. rate. As he mentioned, the then Minister of State wrote to him about this. On the last occasion he wrote, on 8th June of this year, he defended the Department's assessment and the main points that he then made—and which I am bound to repeat—were that while there were difficulties in assessing disability for past periods, there was an assessment by a Service medical board at the beginning of the period—namely, in 1946; that our doctors were familiar with the progress to be expected in the case of a disablement like that suffered by the hon. and learned Gentleman's constituent; and that the medical examination in January, 1970, and the psychiatrist's report were consistent with the conclusion reached by our doctors.

It was also pointed out that the tribunal had found that the disablement had been aggravated by service but was not attributable to service. The then medical officer had again confirmed the 20 per cent. award as appropriate. The assessment by the medical board in 1946 was concerned with the whole disablement, including the aggravation by service of the hon. and learned Gentleman's constituent's condition. The assessment of 20 per cent. was for that part of the disablement accepted as aggravated by service, and that was all that could be taken into account, not any worsening due to natural progress of the disease. That was how the then Minister wrote to the hon. and learned Gentleman; and, having looked very carefully at the case, I am bound to say that I agree with the conclusions which were then reached.

Mr. Weitzman

The hon. Gentleman has read out a prepared answer to the case I made. I appreciate that the Ministry must present a prepared brief. However, since I dealt in detail with the arguments against the very points he has been raising, I hope that he will do me the justice of considering my arguments, which were made in answer to the very points put by the then Minister in that letter.

Mr. Dean

I shall certainly consider the hon. and learned Gentleman's arguments. I have merely been pointing out that an assessment was made in 1946, at the beginning of the period, which is a point about which we are in dispute.

May I turn to the second main point which the hon. and learned Gentleman raised, on the payment of the arrears. The arrears of the 20 per cent. pension have been paid for the period 1946 to 1970. These, together with additions for the family, have amounted to about £1,200. The arrears were calculated on the rates appropriate to a 20 per cent. pension which had been in force at different times during the past 24 years. In other words, the hon. and learned Gentleman's constituent has in effect been paid the amount he would have received had he been receiving his 20 per cent. pension during those years, the amount he would have received at the rates which would have applied had his pension been in payment during those years which we are now considering. Successive upratings have raised the 20 per cent. rate of the basic pension from the 9s. a week in 1946 to which the hon. and learned Gentleman referred to the present level of 34s. a week.

The hon. and learned Gentleman asks that the arrears should be substantially increased to reflect the current purchasing power of the earlier rates. But the object of war pension payments is to provide in some measure current compensation for the limitations which disablement puts upon a full enjoyment of life. In common with all other social security payments, arrears are always paid at the rates current during the periods to which they refer. When uprating increases are introduced, they are not given retrospective effect, and there is no power to make payments for an earlier period at the higher rate. Any different arrangements which applied current rates to earlier periods would be wrong. First, war pensions are paid out of taxation, and it would be irresponsible to accept virtually open-ended liability for payments.

But there would be other serious effects. For example, a premium would be placed on late claims. There would be a strong inducement to claimants to delay making a claim or to protract inquiries, especially during the period immediately before a likely uprating, in the knowledge that inflated arrears would result. This would lead to serious inequities between pensioners. An equally serious result would be the need to re-examine our policy towards late claims, and it might lead to the application of rigid time limits for making claims and appeals.

Mr. Weitzman

I said at the outset that it would be wrong to pay other than what was then the current rate on a late claim. But this is not a late claim. This claim was made in 1946, and the Ministry is at fault for not having paid during the years. How can it take advantage of its own wrong-doing by paying now a rate then current which cannot possibly now buy the things which it could have bought then?

Mr. Dean

Though I fully understand the hon. and learned Gentleman's point, I must still tell him that it would not be right to pay the rate which is not applicable to the time involved in the claim period. I think that the arguments stand. I think that the hon. and learned Gentleman will agree that we have done our utmost to deal with the difficult situation which arose in the earlier part when he first raised the case. I shall naturally study carefully the points which he made in this debate, but it seems to me, having looked carefully at the history of this sad case, that his constituent has had all to which he is entitled.

Mr. Weitzman

I am loath to interrupt the hon. Gentleman, but it is vital to my constituent that these matters be considered. The Minister read out—I do not complain about this for a moment—a prepared answer to me, not having heard the arguments I put forward, which criticised—

Mr. Speaker

Order. Interventions must be brief. The hon. and learned Gentleman has exhausted his right to speak.

Mr. Weitzman

I shall try to be as brief as I can. I am merely suggesting that the hon. Gentleman read a brief which does not answer my arguments. My arguments criticise the hon. Gentleman's case, and I hope that he will give them the most careful consideration.

Mr. Dean

I assure the hon. and learned Gentleman that I shall do that but, equally, I assure him that, having studied the case with great care, the arguments that he put forward this evening are familiar to me. I have read the history of the case, but I assure the hon. and learned Gentleman that I shall study with care what he said. However, as I understand the situation, there is no other benefit within the war pension arrangements to which his constituent is entitled.