HC Deb 02 July 1997 vol 297 cc391-8

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

10 pm

Mr. Peter Viggers (Gosport)

We have listened to an exceptionally good maiden speech by the hon. Member for Pontefract and Castleford (Yvette Cooper), who spoke with great clarity and concern for her constituency. She will find that, in the House, those who speak on behalf of their constituents with knowledge and concern will always win an audience.

In my mere 23 years in the House, I have twice followed maiden speakers. They were both men, and I have followed their future careers with keen interest. The hon. Lady is my first "parliamentary god-daughter", and similarly, I shall follow her career with interest—until the Conservatives can sweep her out of Pontefract and Castleford, which I hope will be as soon as possible.

I am also delighted to see my comparatively near parliamentary neighbour, the hon. Member for Southampton, Itchen (Mr. Denham), as the Under-Secretary of State for Social Security on the Government Front Bench. If we have to have Labour Ministers, I suppose that I am as happy to see him there as anyone else, and I hope that he will listen to my plea on behalf of my constituents. Perhaps he will decide that there is merit in the case.

I welcome the chance to speak on behalf of two of my constituents who, I believe, have been treated inappropriately by Government, which has resulted in profoundly serious damage to them. The issue is connected with an allowance called the allowance for lowered standard of occupation. The acronym for that is ALSO, but I shall refer to it as "the allowance".

I shall quote copiously from a guide to war pensions policy produced by the Department of Social Security. It says:

The original idea behind this allowance, which was introduced in 1946, was to compensate the World War 2 conscript who, as a result of an injury sustained during the war, was unable to follow the civilian job he had had before he was called up. Later, in the 1970s, the law was amended to enable career servicemen who had had no pre-service occupation to qualify for the allowance. The injury or disablement

must be such as to 'render him incapable, and likely to remain permanently incapable, of following his regular occupation and incapable of following any other occupation which is of an equivalent standard and is suitable in his case". Of course, those terms need careful definition. "Regular occupation" means

(i) the occupation which was his regular (service) occupation on the date the injury was sustained, or (ii) the occupation which was his regular (service) occupation on the date he was first removed from duty because of the disease on which his award is based, or (iii) if there were no such occurrences, the occupation which was his regular (service) occupation on the date he was discharged. I would interpret that guidance as meaning that one should apply first test (i), then test (ii), and failing those, test (iii). "Regular occupation" for service after 31 July 1973 means

the regular service job that the claimant was doing at the appropriate date … It is important therefore that the precise service job is identified eg infantryman: electrician: weapons mechanic: cook: clerk: driver: pilot: navigator etc. before consideration is given as to whether the war pensioned disablement renders the ex-serviceman 'incapable, and likely to remain permanently incapable, of following [that] regular occupation". The note continues: Where the regular occupation is the service occupation, and the claimant was invalided because of the accepted disablement, it can normally be accepted that he is incapable of following his regular occupation. That will also be the case if, because of the accepted disablement, the claimant was moved from his regular occupation to another job, albeit still in the armed forces. That is exactly the case in one of my constituency cases. The note concludes:

Occasionally a claimant might argue that although his pensioned disablement did not prevent him carrying on in his regular occupation, he should be entitled to ALSO because he was excused because of his disablement from involvement in certain activities which would normally be expected of all servicemen eg training, exercises/sport. Clearly a marine commando who could not cope with training exercises would be eligible on discharge to ALSO (peak physical fitness being an essential prerequisite for such a job); in that case, it would be very unlikely that he would have retained his job. The allowance was paid to about 13,500 ex-service men and women until 1996. The maximum amount was £38.12 and those in receipt of it made all their financial plans on the basis that the allowance would continue. Who would contemplate—even in one's worst nightmares—that an allowance granted by the British Government would be withdrawn? Surely such an allowance should be as solid as the Bank of England.

Those receiving the allowance made housing and other long-term plans on the basis of it, and took it into account when taking on mortgages or other debts. To take an extreme example, a recipient of the allowance faced with separation or divorce would make a settlement on the basis of the allowance continuing. The loss of the allowance in those circumstances could lead to real hardship.

For about 1,300 people in receipt of the allowance, their worst nightmare came true. In January 1996, the Department of Social Security informed 1,300 ex-service men that they were to lose their allowance. I have one such letter here, addressed to my constituent Mr. Ken Harding. The letter states: when we first looked at your claim for ALSO, we made the mistake of considering only whether you could get back into service, and whether your civilian earnings (or potential earnings) were less than your service earnings. What we should have done was to consider whether your pensioned disablement itself actually made you incapable of following your service occupation and any other occupation of an equivalent standard. It has, therefore, been necessary to reconsider your case … We have reviewed your case and have concluded that your pensioned disablement assessed at 6–14 per cent., does not make you permanently incapable of following your regular (service) occupation of aircraft engineering mechanic. That disablement allowance was for deafness. Mr. Harding became a chief petty officer in the Navy and worked as a supervisor with special responsibility for deck operations on aircraft carriers. He served on a range of ships, and worked on deck with Gannet aircraft, Sea Vixen and Phantom jets and Sea King helicopters.

I wonder whether the person who decided that Mr. Harding was not permanently incapable of following his occupation has ever been at sea during fleet operations. It is noisy and hazardous, with tons of heavy metal catapulting off the heaving deck and back on again. Accuracy and reliability are crucial. To describe him simply as an engineering aircraft mechanic is simplistic and inadequate. Mr. Harding later went on to work at the Royal Navy's aircraft yard in my constituency, working on land on helicopter servicing and repairs. I suspect that the Department of Social Security regarded this as an extension of his service work when they disqualified him from the allowance.

My other constituency case is more bizarre. Mr. Mike Tungate served in the Royal Marine Commandos and reached the rank of sergeant. He was supremely fit and took pleasure and pride in physical activity. In July 1985, he was injured when he was thrown from his motor cycle in an accident that was not his fault. He has since suffered permanent injuries to his shoulder and elsewhere. I have a medical report here from a Doctor Grayson, dated May 1997, which states: This man's left shoulder injury is likely to continue to be a major disability throughout his life and will I imagine have limited his chances of promotion as he cannot achieve battle fitness. Another medical report—also issued in 1987—from Mr. Neville Seymour, in Plymouth, states:

His general activities have been severely restricted: he has been unable to undertake battle fitness tests; he cannot lift and hold weapons. He tells me that his service contract has three years to run, but he had hoped to spend another five years in the forces. The contents of those medical reports are reflected in the armed forces reports on Mr. Tungate. A letter from Major Binnie of the Royal Marines in Plymouth, dated May 1987, says that Mr. Tungate

was medically downgraded to P2 (Modified Commando) on 9 March 1987 as a result of his accident. This means that he must henceforth work in the rear echelons of units and in office jobs. Additionally he cannot undergo Mountain and Arctic Warfare Training nor can he attempt the normally mandatory Basic Fitness Test and the Annual Personal Weapons Test. Whilst this does not directly affect his fitness for promotion it inevitably damages his prospects. Being ineligible to hold field posts in a Commando Unit denies him the full range of job experience that is an essential part of a man's promotion. Nor is he able to compete effectively with his contemporaries who have the opportunity to gain a balanced career. Whilst it is difficult to quantify his damage, he has been disadvantaged by his accident and the subsequent medical downgrading. I do not believe he will now gain the width of experience necessary for further promotion. In the official report on Sergeant Tungate for 1987–88, his reporting officer said—after praising Sergeant Tungate's qualities, his enthusiasm and his excellence generally— Regrettably, Sgt Tungate's medical condition puts certain restrictions upon him and his career … Sgt Tungate has now been a Sergeant almost 9 years. I am of the opinion that his medical condition and somewhat limited experience in the clerical branch would debar him from being employed as a CSgt (C1)"— that is, a colour sergeant. It is with sincere regret that I have to suggest that Sgt Tungate has reached his final rung on the ladder of promotion. His colonel said:

Sgt Tungate is doing a good job … and I am very happy to have him here but in all honesty for the reasons stated above he has reached his ceiling. Sergeant Tungate received a letter telling him that he would not be eligible for the allowance for lowered standard of occupation. It said: We have reviewed your case and have concluded that your pensioned disablement assessed at 40 per cent., does not make you permanently incapable of following your regular (service) occupation of— wait for it— clerk". Later, the war pensions policy unit wrote to me as follows: Examination of Mr. Tungate's Service documents shows that at the time of his shoulder injury in 1985 his listed trade was that of Clerk, and that he had not been removed from duty on account of his shoulder or other injuries. The WPA therefore determined that his injuries had not prevented him from following his 'regular occupation' up to the time of his discharge in 1990, and that he was not eligible for the allowance.

A Royal Marines commando was described as a clerk! I suppose that clerking duties are involved; I suppose that a Royal Marines commando must keep an inventory of hand grenades, and make sure that the men have weapons, food and everything else that they need in order to fight—and, of course, he will be carrying his own weapon just in case it becomes necessary for him to fight back. To call him a clerk, however, is completely wrong. The person who arrived at that classification cannot have known about Royal Marines mountain and Arctic training, cannot have know what it is like to patrol the streets of Northern Ireland and cannot have seen the areas in the Falklands across which it was necessary for Royal Marines and others to yomp.

How can Mike Tungate be deprived of his allowance? I repeat that the Department's briefing notes say: Clearly, a marine commando who could not cope with training exercises would be eligible on discharge to ALSO (peak physical fitness being an essential prerequisite to such a job); in that case, it would be very unlikely that he would have retained his job. Sergeant Tungate was so highly regarded that he was kept on, in a slightly different role, in the rear echelon. It may be that that act of kindness to him, because of his great quality, deprived him of his allowance. If that is the case, it is quite wrong.

I am absolutely sure that I know the answer in this case. A mistake was made when 13,500 cases were reviewed. The fact that Mr. Tungate continued to be defined as a clerk up to the end of his service led officials to believe that he had not suffered lowered standard of occupation. I am convinced that he had, and that there was a mistake.

The Minister has been provided with a brief, no doubt by the same team of civil servants who prepared the brief from which answers were given to me previously, but I say to the hon. Gentleman—whom I could almost, as a neighbour, call an hon. Friend—that there are cases in which Ministers need to read the brief and form their own decision. That is why we have Ministers and why he and not a civil servant is sitting there.

There has been an error, to the great loss of my constituents. They are fine men who have given devoted service. I plead with the Minister to reconsider and to restore to them the allowance for lowered standard of occupation.

10.15 pm
The Parliamentary Under-Secretary of State for Social Security (Mr. John Denham)

I thank the hon. Member for Gosport (Mr. Viggers) for bringing this matter to the House and for his warm introductory words. He has a deep knowledge of service matters and represents a constituency with an unusually high proportion of service and ex-service personnel.

I pay tribute to those former members of the forces who have suffered disablement or death in the service of their country. I also acknowledge the invaluable work performed by the ex-service organisations in serving the interests of former service men and women. My Department keeps in close and regular touch with those organisations, as we recognise the importance of ensuring continuing awareness of feelings and concerns among the ex-service community. Indeed, my noble Friend Baroness Hollis, as the Minister with special responsibility for war pensions, met representatives of the ex-service organisations twice last month.

I would like to set this debate about one supplementary allowance into the context of the war pensions scheme as a whole. The scheme provides a number of allowances to supplement the basic war disablement pension, forming a wide range of financial provisions for disabled ex-service men and women.

Allowances are available in respect of age, unemployability and care and mobility needs arising as a result of war pensioned disablement. Most of the allowances are at preferential rates compared with social security counterparts and some are peculiar to the war pensions scheme. The scheme also provides pensions for the widows and other dependants of ex-service personnel whose death is linked to service.

The allowance for lowered standard of occupation is known in both the ex-service world and official circles by the abbreviation ALSO. I propose to refer to it as such during this debate.

The forerunner of ALSO, which is currently £40.44 maximum a week, was a special hardship allowance introduced in 1946. Its clear purpose was to compensate an ex-service man who, because of injury incurred as a result of service during the war, was unable to do the civilian job that he did before he joined up and had to settle for a job with less pay. The allowance was to help to bridge the gap between his current earnings and those that he had enjoyed in his pre-service occupation. In May 1948, the allowance was renamed the allowance for lowered standard of occupation.

The original allowance was to compensate world war two conscripts where pre-service careers had been adversely affected by their injury. From 1973, the law relating to ALSO was amended to provide for career service men. For those disabled due to service after 31 July 1973, the comparison is made with the pensioner's occupation in service, instead of his pre-service occupation. Under the change, it became necessary for the Secretary of State to determine what the ex-service man's "regular occupation" was while he was in service on whichever of three dates applies in the individual case. Those dates were the date his service wound or injury was sustained; or the day he was first removed from duty because of the disease on which the award is based; or if neither of the above occurred, the date he was discharged.

Subsequently, from April 1978, the conditions were further amended to widen the scope to include war pensioners whose disablement was due to service before 1 August 1973 and who had entered the forces straight from school or higher education after 2 September 1939 and before 1 August 1973. Those pensioners had previously been excluded from consideration of ALSO because they had no regular pre-service occupation.

From April 1997, a new award of ALSO may not be made where the claimant has attained the age of 65; nor may an award be made where the degree of disablement is assessed at less than 40 per cent. With those exceptions, ALSO may be awarded to the war pensioner whose war pensioned disablement is such as to render him incapable and likely to remain permanently incapable of following his regular occupation and incapable of following any other occupation which is of an equivalent standard and is suitable in his case". The allowance is therefore designed to compensate the ex-service man who, because of his war pensioned disablement, is unable to follow his regular service trade or occupation and a civilian one of an equivalent standard. It is not intended to provide compensation solely on the ground that his earnings have reduced since leaving the forces. That is a situation often faced by ex-service men because service pay is based on the earnings of comparable civilian occupations, with the addition of what is generally referred to as the X factor in recognition of the special circumstances of service life.

I should explain at this stage that "regular occupation" is interpreted by the Secretary of State as the regular service job that the claimant was doing at the relevant time. It is important therefore that the precise service job is identified, in the same way as it is important for world war two conscripts to identify the precise job the ex-service man was doing as a civilian before he joined the armed forces. The "regular occupation" therefore is not simply "service man" but, for example, as the hon. Gentleman said, infantryman, electrician, weapons mechanic, cook, clerk, driver, pilot, navigator and so on.

Once the precise occupation is determined, consideration is given to whether the war pensioned disablement is such as to render the ex-service man incapable of following that regular occupation and one of an equivalent standard which is suitable for him.

The law does not define what is meant by the terms "equivalent standard" or "suitable", but the Secretary of State interprets that as meaning any other job with equivalent earnings and which is suitable for him taking into account his training, education, experience and physical and mental condition. I should stress that that is a generous interpretation. The earnings comparison is with the level of earnings in the regular service occupation, not with the level of earnings in a civilian equivalent job.

In 1994, it came to light that the legislative provisions for ALSO were being misinterpreted. Some awards had been incorrectly made. Consideration had been given only to whether the man's earnings in civilian life were less than his service wages and whether the man could now get back into service. That led to payments being made where relatively minor disablement had not had any effect on the pensioner's earnings potential or, in some cases, prevented continuation of the service career up to normal military retirement. No consideration had been given to whether the man's disablement itself actually made him incapable of following his service occupation. I am sure that the hon. Gentleman agrees that it is right that any payments are within the law.

In March 1995, the matter was brought to the attention of the Advisory Committee on War Pensions. It was explained that new awards would be made only where the pensioned disablement would prevent the war pensioner from following his regular service occupation and a suitable equivalent and that existing cases would be reviewed to ensure that existing awards were soundly based in accordance with the legislation. Some awards were eventually withdrawn from a common date of 3 April 1996. All those affected were given at least two months' notice of the withdrawal. None of the ex-service men affected had been discharged from the forces because of their service disablement. All had a full career or were made redundant. They were not asked to repay the money that they had received.

If a service man is invalided out of service on account of his disablement, it can normally be accepted that he is incapable of following his regular service occupation, and ALSO will be payable. That will also be the case if, because of the disablement, the pensioner was moved from his regular occupation to another job in the armed forces. On the other hand, if a service man completes his service engagement in the normal way despite some disablement, it is evident that it did not prevent him from following his regular service occupation and ALSO will not normally be payable. However, if there is subsequently a significant deterioration in the degree of disablement due to service, to the extent that it is judged that the disablement would then prevent him from following his regular service occupation, ALSO may be awarded.

I am aware of the hon. Gentleman's previous interest in this allowance, and in particular of the parliamentary question he raised with his party's Administration in March last year asking what discretion Social Security Ministers have on the payment of ALSO. The answer then, which still reflects the legal position today, was that the Secretary of State would pay the allowance when satisfied that the requirements for it in war pensions law are met.

I am also aware of the previous ministerial correspondence which the hon. Gentleman has had and of his contact with officials from the War Pensions Agency and with departmental headquarters about the cases of his constituents, Mr. Harding and Mr. Tungate. I shall now turn to the cases of those ex-service men.

Neither man was invalided or otherwise removed from duty on account of their pensioned disablements. On the contrary, both continued in their regular service occupations until their discharge on the normal completion of their engagements. I am advised that their respective disablements did not therefore affect their ability to carry out their regular service occupations. Mr. Harding was an air engineering artificer (mechanical) and Mr. Tungate was a clerk. The judgment has therefore been made that the legal requirements for entitlement to ALSO have not been satisfied. I am aware that both men's awards of ALSO were withdrawn as a result of the review exercise begun in 1994 to which I referred earlier.

The hon. Gentleman suggested that because Mr. Tungate was medically downgraded to modified commando as a result of his shoulder injury incurred in 1985, his promotion prospects were adversely affected. That may or may not be so, but the facts appear to be that Mr. Tungate's regular service occupation when injured was that of a clerk and that his injury did not prevent his carrying on in that occupation for the next five years until normal discharge in 1990, when he made his claim for war pension. If that is the case in the circumstances of Mr. Tungate's claim, the law on ALSO provides that the allowance could be awarded only if he was incapable, because of his war pensioned disablement, of doing the job that he was doing when injured.

The hon. Gentleman made the case that the identification of the occupation of clerk is not appropriate in Mr. Tungate's case. I have no reason to believe that my predecessors were anything less than punctilious in the examination of Mr. Tungate's position. None the less, the case has been made by the hon. Gentleman and I therefore undertake to look once more at Mr. Tungate's case and at whether the identification of occupation was correct, though I would not wish to prejudge the case or hold out any particular prospect of what the hon. Gentleman seeks.

The hon. Member also suggested that Mr. Harding's award of ALSO should be reinstated on the grounds of his occupation and, perhaps, of hardship. Mr. Harding was discharged from the Navy in 1986 and claimed a war pension in respect of his hearing loss in 1991, when his disablement was assessed at 6 to 14 per cent. He received a lump sum gratuity of £3,129 in respect of that disablement and was awarded ALSO following a claim made in 1992. It seems clear that he was able to do his service job with his disablement and the award of ALSO was therefore withdrawn from April 1996.

Mr. Harding has been advised that the Secretary of State has the discretionary power to reinstate the allowance in whole or in part and that the normal policy is to do so where withdrawal of the allowance would result in a real risk to the health of the pensioner or a dependant, or to keeping the family home. The War Pensions Agency has invited Mr. Harding to complete a form detailing his income, capital and commitments and reasons why he believes that the Secretary of State's discretion should exceptionally be exercised in his case, but I understand that he has not done so. I am, of course, in no position to say that he will be successful in getting his allowance restored if he does so.

I listened carefully to what the hon. Gentleman said. I am not convinced of the need to reconsider the matter, but if there is any further evidence on conditions or employment records that he wishes to provide, I will give the matter my further consideration.

Question put and agreed to.

Adjourned accordingly at twenty-nine minutes past Ten o'clock.