HC Deb 01 March 1971 vol 812 cc1357-66

Motion made, and Question proposed, That this House do now adjourn.— [Mr.More.]

10.6 p.m.

Mr. John Pardoe (Cornwall, North)

I am glad of this opportunity to call attention to the claim of my constituent, Mr. W. M. L. Tremain, for a war pension in respect of the period immediately following the last war.

At the age of 29 my constituent joined the Army, in November, 1942. He had at that stage no medical record of rheumatic infection, and I have a letter from his medical practitioner which states: I certify that there is no evidence in Mr. Tremain's medical record of a rheumatic infection prior to his enlistment in November, 1942. He was, on enlistment, passed Al by the medical board which examined him. Eight months later, in June, 1943, he em- barked for North Africa. There is some dispute about the exact nature of the pre-embarkation medical that he was given, but that is not a subject for tonight, though it will be the subject of a later appeal.

On 30th August, 1946, just prior to his demoblisation, an Army medical board found that Mr. Tremain had mitral stenosis. This was, in any event, a very serious matter, and a letter from his medical practitioner of 20th August, 1970, said: It is indisputable that the diagnosis of mitral stenosis by Service doctors in August, 1946, was medically speaking 'a serious matter', as indeed it always is. He was, however, not told of this serious matter. Nor was his own doctor told of it. It is extraordinary that the medical authorities found that he had this serious disease, but that he was not discharged into hospital, was not informed, that his G.P. was not told and that on 15th December, 1946, he was placed on the Reserve when demobilised.

I am aware that various Departments have put forward a number of reasons why Mr. Tremain and his medical practitioner were not told. Indeed, a letter dated 7th January of this year from the Under-Secretary of State far Defence for the Royal Navy stated: In 1946 such a quiescent, slight cardiac lesion, not producing symptoms in an otherwise healthy young man was not amenable to any treatment. Penicillin prophylaxis had hardly been introduced and the operation of mitral valvotomy was first introduced in U.S.A. in 1948. Prior to 1948, therefore, a patient with mild mitral stenosis of good prognosis might well not be told that he had 'heart trouble' because of the great fear that this could cause and the possibility of a cardiac neurosis. However, his medical practitioner stated in the letter of 20th August: In my opinion both the man and the G.P. should have been told in order that he could be advised about work and told of the implications of such a diagnosis. I can state quite categorically and without any fear of contradiction, that it would be a serious error of medical judgment to place a man known to have such a diagnosis on the Reserve—liable to recall for active service. Indeed it may well come into the much more serious category of 'Negligence'. The explanations which have been given by the Under-Secretary do not really stand up. The extraordinary thing is that although this serious disease was diagnosed in December, 1946, apart from the Army medical authorities, no one knew that Mr. Tremain had this at that date until a letter from the Under-Secretary to me, written on 30th January, 1969, stated: When he was examined by a medical board before his release in 1946, mitral stenosis was found. That was the first indication that Mr. Tremain had that very serious complaint when he left the Service in 1946. During the next few years, he experienced an increasing difficulty in working, but, of course, he did not know why. However, eventually he decided to make a claim. On 27th November, 1951, he was awarded 40 per cent. in respect of his mitral stenosis, and that was made retrospective to 17th August, 1951. Although it was back-dated to 17th August, 1951, which was the date of his claim, he did not receive any pension for the four years and eight months which had elapsed since he was demobilised and, indeed, since the Army medical authorities first knew that he had the disease.

I challenge the decision that the disability was only aggravated by mitral stenosis and not attributable to Mr. Tremain's war service. But that is not the main part of my case, because it will be the subject of a future appeal. I am now concerned with that part of his claim which, for some extraordinary reason, is apparently not subject to any appeal procedure. It had not occurred to me that our war pension regulations would mean that a man was unable to appeal against a decision of this sort. But it appears that there is no right of appeal at all for the period from 15th December, 1946, to 17th August, 1951. The reason is that he did not claim earlier.

Why did Mr. Tremain not claim earlier? I have a letter written to me by the consultant chest physician at the Department of Chest Diseases of the West Cornwall Hospital Management Committee. He states: it is understandable that Mr. Tremain should feel aggrieved particularly as a 50 per cent. pension was not awarded until 1951. It may also be relevant to consider Mr. Tremain's attitude to his disease, for he is the type who makes little of his symptoms as opposed to those who complain at the first sign of trouble. Had he not had this tendency to minimise symptoms I am quite sure he would have sought medical advice much earlier. This in turn might have led to an earlier appreciation of the presence of heart disease and excused him from further military service. Commenting on that opinion, I have from Mr. Tremain's own G.P. a letter dated 20th August which states: I think Dr Hughes' point that a bellyacher would have got more attention sooner is very true. Of course, he should not be at a disadvantage because he did not make a fuss. That is the reason why Mr. Tremain did not make his claim earlier and why he is being made to suffer for it, because of this extraordinary hole in the regulations. Mr. Tremain experienced increasing difficulty in doing his work and was, particularly, short of breath. Nevertheless, he continued for a considerable period until at last he realised that he had to make some appeal.

When Mr. Tremain did, he was given a war pension at the rate of 40 per cent., which has subsequently been increased to 50 per cent., but it was not back-dated to the point at which he would have made his appeal had he known that he was suffering from the disease. In other words, if Mr. Tremain's general practitioner had known when Mr. Tremain first went to him and said, "I am suffering from shortage of breath ", or had Mr. Tremain known, that in 1946 on his demobilisation medical he had been diagnosed as suffering from mitralstenosis, undoubtedly the claim would have been lodged earlier.

Mr. Tremain cannot appeal for those four years and eight months, for a variety of reasons. A letter dated 14th August, 1970, to Mr. Tremain from the Secretary of the Pensions Appeals Tribunals sets it out fairly clearly: I must advise you that the Royal Warrant only provides for the Tribunal to decide whether a disability in an Entitlement Appeal is either wholly due to, or aggravated by, Army Service. It does not provide for the Tribunal to decide when entitlement should date from. Unfortunately, therefore, it has no power to decide this. In a further letter dated 4th September, the Secretary of the Pensions Appeals Tribunals quotes Article 65 of the Royal Warrant: 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. In a letter to me dated 9th September the Under-Secretary himself stated: Considerable publicity has been given to war pension matters over the years and we have done all we can to make it known that the onus of making a claim lies with the claimant and that it is in his own interest to do so without delay. That is true. My point is that Mr. Tremain did not know of his illness, but if he had been informed by the medical authorities in the Army, he would have known and he would have made his claim earlier.

This is the case, therefore. This is what we want to appeal on. There is, apparently, no appeal procedure for this matter. Therefore, a debate of this sort is the only way of dealing with a matter of this kind.

I have a very considerable and voluminous file of correspondence with the Under-Secretary and his predecessor, even with the Lord Chancellor's office. I have been unable to settle the matter in correspondence. This is why I raise it in an Adjournment debate. The rest of the case can go to the normal appeals tribunal, which will happen. In this instance it is simply a matter for the Minister's discretion. The reason why Mr. Tremain did not claim in time was the negligence of the Minister and of the doctors in not informing him of his illness. I maintain that that was negligence.

I quote from a letter dated 24th September from the Lord Chancellor's office: …you could make a further approach to the Department of Health and Social Security because you agree that the Minister has a discretionary power under Article 65 to award pension for any period preceding the date of a succcessful application for pension. In other words, it is in the Minister's hands alone. I believe that he should exercise the benefit of the doubt. There is, of course, to any reasonable and rational man an element of doubt in this case, and the hon. Gentleman should exercise the benefit of the doubt in favour of my constituent, Mr. Tremain, and not in favour of public funds.

I should just like to pay tribute to the very considerable help that I have received in this case, as, indeed, in a very large number of cases about war pension claims, from another constituent of mine, Mr. Minnikin, of Boscastle, who researched and helped with the case to a very considerable degree indeed.

10.20 p.m.

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

I am grateful to the hon. Member for Cornwall, North (Mr. Pardoe) for bringing this case forward so moderately this evening. As he mentioned, he has corresponded with me and with predecessors of mine and with a great many other people in putting forward what he feels is a grievance of Mr. Tremain. I should like at the outset to express my sympathy with Mr. Tremain in the disease from which he suffers and, indeed, with his family, and to say that we have done our utmost, as we always try to do, to give him the benefit of the doubt, and to try to ensure that every possible consideration is given to this case, as we do to other cases and to lean over backward to try to give the benefit of the doubt where it is at all possible to do so.

The hon. Member mentioned that Mr. Tremain has a 50 per cent. disability pension for mitral stenosis, aggravated by service. He mentioned that this is now before the appeals tribunal for hearing. Therefore, it would not be appropriate for me to say anything further about that today.

However, the point he is really concentrating on, what is really the essence of the case which he is making, is that there was negligence on the part of the Department in not letting Mr. Tremain know in 1946 the nature of the disease from which he was suffering.

I want very briefly to say to the hon. Gentleman, although I fully recognise how strongly he feels about this and how strongly his constituent feels, that I cannot accept the charge of negligence which he has put against the Department. Having said that, I want also to say that I shall, of course, read extremely carefully what the hon. Gentleman has said to see if there is any new information, other than that which he has already put to me in correspondence, which might throw a different light on it, but, subject to that, I put to the hon. Gentleman three points which seem to me to be relevant in making the case, which I do make, against the charge of negligence which he has put forward.

The first concerns Mr. Tremain's own doctor. Apparently, his civilian doctor told him in 1943 that his "heart was not right", to quote the words which were used at that time. This was the information give to him by his doctor. It was not, incidentally, information of which the Department was aware until a great deal later. It certainly did not know it at that time, and it certainly did not know until the claim was made for a war pension. That is the first point. I do not think it can really be said that Mr. Tremain was unaware of some type of symptom in regard to his heart, in view of what his own civilian doctor told him in 1943.

The second point is that he, like everyone else on release from the Service, would have received a claim form for a war pension which he could have filled in had he felt that he might be entitled to one. I have had a look at the release documents which were given to people at that time, and it seems pretty clear to me that considerable prominence was given to this form of claim to Army pension. Therefore, I think that on that count one can say that the Departments at that time did their utmost to ensure that those who felt that they might have claims should have knowledge of it.

The hon. Gentleman's third point, the one to which I think he attached most importance, was to ask why the Defence Department did not then tell Mr. Tremain specifically what the complaint was. The hon. Gentleman quoted recent medical evidence that it is a medically serious condition, but he is using some of the benefits of hindsight. I understand that in 1946, when Mr. Tremain was discharged, there was no known cure or treatment for the disease. Perhaps I may quote what my hon. Friend the Under-Secretary of State for Defence said on this point when he replied to the hon. Gentleman in a letter dated 7th January, 1971. He wrote: An abnormality, mitral stenosis, was discovered at his release medical examination and was recorded, but this was considered to be quiescent and slight as regards effect on function. The degree of disablement was assessed at less than 20 per cent. No symptoms are recorded. In 1946, such a quiescent, slight cardiac lesion, not producing symptoms in an otherwise healthy young man was not amenable to any treatment … therefore a patient with a mild mitral stenosis of good prognosis might well not be told that he had 'heart trouble' because of the great fear this could cause and the possibility of a cardiac neurosis. The hon. Gentleman says that the Department should have said more then. But there was a real risk that if Mr. Tremain had been told more that fear would have been created in his mind, particularly as there was no known treatment then.

For those three reasons I believe that the hon. Gentleman's points about negligence do not stand up.

I turn to the hon. Gentleman's other main point about the procedure with regard to arrears and the fact that there is no appeal, the matter being in the Minister's discretion. Article 65 of the Royal Warrant provides that payment shall not be made in respect of any period preceding the date of the successful application for appeal,

except in so far as the Minister may otherwise direct with respect to any particular case or class of case. Successive Ministers have approved the exercise of discretion to allow payment for a period preceding the date of the application or appeal in cases where physical or mental incapacity prevented the pensioner making a claim or appeal earlier. I do not think that there is any argument of such incapacity; there is no evidence of it, and it has not been suggested.

The second ground for exercising the discretion is where there has been a clear Ministry error or misdirection. I have given my reasons why I do not believe that there has been a Ministry error or misdirection here. But the hon. Member added that there should be an appeal procedure and that the matter should not be at the discretion of the Minister. I understand his point, but it may well be that if we had an appeal procedure rather than discretion on the part of the Minister we should find that the interpretation and discretion would be less generous in the majority of cases than has worked out in practice. I remind the hon. Gentleman that as a result of the Minister's discretion the Department can and does accept belated claims. We are still receiving claims from 1914 men. This is a good example of the flexibility that a power of discretion on the part of the Minister gives. The hon. Gentleman's proposal for an appeal procedure might well mean in practice that in the majority of cases it would be possible to be less lenient and less generous.

Perhaps the best evidence we have of the good working of the discretion on the part of the Minister is the comment that has been made by the Parliamentary Commissioner for Administration. I remind the hon. Gentleman of what he said in his annual report in 1968, in paragraphs 20 and 21 headed,

Back-Dating of Awards of War Pension". He said: As a general rule the Department of Health and Social Security (formerly Ministry of Social Security) award a war pension only from the date of a successful claim or appeal. The Secretary of State has discretion, under the Royal Warrant, to award pension from an earlier date, but exercises his discretion only in exceptional circumstances. The Department have explained to me that their rule against the back-dating of awards is a counterpart of their willingness to accept belated claims. The Warrant clearly places the onus of making a claim or appeal on the individual, and it is established policy that the Department consider advising the Secretary of State to exercise his discretion only when there is substantial evidence that the pensioner has been prevented by physical or mental incapacity from acting earlier, or where the records contain evidence of misdirection or other material error on the part of the Department. I have accepted that this is reasonable. Consequently when I find that the Department's refusal to back-date an award is in accordance with this policy I do not uphold complaints against it. I repeat to the hon. Gentleman that I will of course study carefully what he has said to see whether there is any additional information which has not been imparted before. I am bound to say, however, with regret, that I cannot hold out any more hope to him. But I give the hon. Gentleman the assurance that, if he feels there is any other help we might be able to give Mr. Tremain within the welfare or any other services which are available which might help to overcome the sense of grievance he has, if he will let me know I shall be very pleased to look at the case at least in that light.

Question put and agreed to.

Adjourned accordingly at twenty-eight minutes to Eleven o'clock.

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