PENSIONS APPEAL TRIBUNALS BILL (Hansard, 18 January 1949)

§ THE LORD CHANCELLOR (VISCOUNT JOWITT)
My Lords, I hope that this little Bill, which I believe to be quite uncontroversial, will commend itself to your Lordships as it has commended itself to many—indeed I think to all—of those organisations which are concerned with work for the welfare of pensioners. The Bill extends the operation of the Pensions Appeal Tribunals Act in two respects. The first respect is this: the Bill extends to the whole of the Armed Forces, when the present war ends, the same rights as they have to-day when, technically, the war is still continuing. We do this by substituting the words "any relevant service" for the words "war service" in the 1943 Act, and by the necessary alteration to the definition section.
The history of the matter is as follows. During the First World War pensions became the concern of the Ministry of Pensions, but by the Act of 1920 (I think my date is right), after the termination of that war, the administration of pensions was re-transferred to the Service Departments. But though pensions were, I have no doubt, most carefully administered by the Service Departments, which always desire to do the right and fair thing and of course are under Parliamentary check and control, at the same time there was no right of appeal from their decisions. When the Second World War started in 1939, it was thought desirable to transfer to the Ministry of Pensions, as had been done in the case of the First World War, the whole administration of pensions which in the inter-war period had been transferred back to the Service Departments. If, therefore, we were to follow the 1920 model at the end of this war—the actual date would be fixed by Order in Council—we should re-transfer the administration of pensions to the Service Departments. But we have decided to follow a different principle and to retain the war-time machinery. We believe 16 that to be justified by the fact that to-day, unlike after the First World War, there is compulsory service. Secondly we consider it to be justified because we believe—and I hope all your Lordships will agree with this—that these independent Tribunals, which can, if necessary, check and control the Minister and hear cases again, are most valuable things.
I must point out that the peace-time pensions codes—that is, the inter-war codes—were quite different. In some respects, I readily agree, they were somewhat less advantageous, but the principles were quite different. It is true that they were fixed by Parliament. The volunteers—for such they were—who served between the wars knew what the terms of their contracts were. They joined up on the basis of a contract. Equally, I must point out that we cannot possibly do anything now to take over again the inter-war cases, because some go back as far as twenty-nine years—the last go back nine years. In fact, in most cases there is no medical dossier or medical evidence at all, and it is hopeless to think that we can attempt to reopen all these cases. We cannot do so. But hereafter, if and when this war comes to an end and the Order in Council is made, we shall, of course, keep our necessary documents and we shall be able for the future to apply the provisions of this measure to all members of the Armed Forces, whether conscripts or volunteers; and, if thought proper by the Minister, the provisions can be extended to the Territorial Army also and the members of that Army will then all be subject to this code. People who may be dissatisfied with the decision of the Minister of Pensions will still be able to take their cases to independent Tribunals. That is the first object of the Bill—to continue into the post-war period the machinery which we had in the war and not to go back to the inter-war machinery.
The second point can be quite simply put, though it is a little complicated. The Machinery under the Act of 1943 was this. There was an appeal to the Pensions Appeal Tribunal, and that Tribunal had the right to state its case so that the matter might go before a Judge of the High Court. There was one Judge in England and another Judge in Scotland. Of course, it happened, from time to time, that the Judge before whom the case went would give a decision which would throw 17 new light upon the Act—very often on matters relating to the onus of proof, or things of that kind. Now after such a pronouncement people came and said: "If only this decision had been known at the time when my case was heard (my case was disposed of several years ago, and I did not think fit to appeal or to ask for a case to be stated when it was decided against me), if only the Tribunal which heard my case had then known what the Judge has recently declared to be the law, my case would have been decided differently." Therefore these people said, let Special Review Tribunals be set up to go back over the masses of cases that have been decided and see whether in the light of the new decisions some of the decisions which were originally arrived at were wrong.
I confess that I was very hesitant about assenting to such a proposition. There used to be a Latin tag to the effect that "In the interests of a republic there should be an end to litigation." If you were to adopt a system with a hierarchy of courts, and when the highest court pronounced a decision you thereupon asked for every case which had been decided in a contrary sense to be re-opened, you would never get finality. So it was with some reluctance and great hesitation that I assented. But I asked for and received an assurance that I should never be asked to do this thing again. That assurance was given me by people who are able to speak with authority in such matters.
So we set up these Special Review Tribunals. What they do is this. After the Minister has gone over the cases very carefully, collected all the material facts, got together the material evidence, the case, if he still rejects the claim, is referred to these Special Review Tribunals. If they think that an injustice was done they can recommend the Minister to put it right. The recommendation is not binding upon the Minister, but in practice he always honours such recommendations. There are some 15,000 cases which are likely to be reviewed in the first instance by the Ministry of Pensions, of which some 9,000 have been or are likely to be submitted to the Tribunals.
Here let me say, because I think there has been some misapprehension about the matter, that I will readily create as many Tribunals as are wanted to cope with the flow of cases and dispose of them at the earliest possible moment. At 18 present there are five Tribunals. Each one consumes about twenty cases a week, so that they have to receive a hundred cases a week. Cases are coming from the Ministry of Pensions at the rate of fifty a week. I am not complaining, because I realise that it is very necessary for the Ministry to go thoroughly into these cases and have all the documents ready and available, but I would not like it to be thought that the delay in dealing with these cases has anything whatever to do with the number of Tribunals. I appointed the fifth Tribunal as recently as November and I am very much afraid that in the course of the next few days I may have to give the members notice and disband it because I cannot feed it. It does not depend on how many cases are in the reservoir, but on the rate of flow through the conduit pipes leading from the reservoir to the Tribunals, and that, in its turn, depends on the rate at which the Ministry, taking all proper care and not rushing the work, can get cases ready.
The ordinary Pensions Appeal Tribunals deal both with the initial claims, as to whether a disability is due to or aggravated by the war, and with questions of the extent or duration of the disability. The Special Review Tribunals cannot deal with the latter. They can say, having investigated the case, whether a mistake has been made on the former claim, and then the Ministry, accepting the decision, can assess the disability, at say 30 per cent., or what you will. But if the pensioner wishes to appeal against the assessment, he cannot go to the Special Review Tribunal and say that this is unfair and that his rate of pension ought to be at least 50 per cent., because the decision of the Special Review Tribunal on the initial claim was not a binding decision—it was merely advice to the Ministry, which the Ministry may or may not accept. I think that is wrong. We ought to allow those cases which have gone before the Special Review Tribunals to go before the ordinary Pensions Appeal Tribunals if a dispute arises on such a matter as the degree of disablement or the extent of its duration. That is what the second part of the Bill provides. This Bill extends to Scotland and Northern Ireland. It received a warm welcome in another place and I am certain it will commend itself to your Lordships. I beg to move.

§ VISCOUNT SIMON
My Lords, I have no doubt the House will be glad to accept this Bill and to play its part in having it placed upon the Statute Book. The matter is a little complicated, but the noble and learned Viscount the Lord Chancellor has explained it as well as anybody can and I will not attempt to repeat his explanation. I am glad that the noble and learned Viscount said a word about the Pensions Appeal Tribunals, because they have done a very useful piece of work. They have in many cases corrected views which had been taken in the Ministry of Pensions and which turned out to be the wrong views—as is sometimes inevitable—and have secured that justice was done to the applicant who deserved it.
The Pensions Appeal Tribunals were established in 1943. I had a certain part in framing the legislation and afterwards in appointing them. It was not an entirely easy thing to do, because in the very middle and pinch of the war it was difficult to staff such Tribunals. Your Lordships may remember that the chairman of the Tribunal was to be a lawyer or solicitor of several years' standing and another member was to be a qualified medical man. Those were people most difficult to find in those very busy days. The third member was a man or woman who was chosen having regard to the status of the applicant. If a claim was made by an officer, the third member was a demobilised officer, but if the claim was made by another rank, the third member was drawn from a similar category. I have no doubt at all—and I am sure the noble and learned Viscount will confirm me in this—that we owe a great deal to these people, who worked in different parts of the country (for there were a large number of Pensions Appeal Tribunals) and who have done a good job and have given a great deal of satisfaction.
The extension that is now proposed has been explained to the House. There is no doubt at all as to Clause 1. We do not want to limit the jurisdiction of the Pensions Appeal Tribunals to cases in which the issue is whether the injury is attributed to war service, because we have people now who are serving under the 20 National Service Act who are engaged in their duties as members of the Forces even though they are not actually engaged in war. It is manifest that there ought to be that extension.
I agree with the noble and learned Viscount the Lord Chancellor that the second clause is a little more difficult to put clearly and to be completely satisfied about. The noble and learned Viscount, not for the first time, has explained, with that air of sweet reasonableness we all admire, that though he does not like it all, he is prepared to accept it. May I say, with respect, that in this case he is perfectly right, because there is rather a special feature which has to be borne in mind in regard to Clause 2. As the noble and learned Viscount said, there have been quite a number of decisions, very striking decisions, as to the proper application of the law about these pensions, largely made by an English Judge whom I need not name but who has devoted himself specially to the business, under the direction of the noble and learned Viscount the Lord Chancellor.
What followed was that in 1946—I think it was in April, 1946—the Ministry of Pensions set up a special body, a non-statutory Appeal Tribunal, to reconsider all the cases which might have been decided more favourably to the applicant if only the law at the time of the decision had been more accurately understood and expounded. The Ministry went so far as that and, having got so far, there is a great deal of good sense in saying that, though the decision might have been made some time ago, if these people were found to be entitled to more favourable treatment as the law is now understood and they were not satisfied with the actual amount which they were awarded or the period for which they were to draw their pension, they should have the opportunity of appealing to a Tribunal. That, I understand, is the general purpose of the second clause. Having had in the past to spend many hours on this horribly complicated subject, I have no doubt myself that it is a perfectly just and proper thing to do, and I am glad that the noble and learned Viscount the Lord Chancellor has proposed it.
He referred to one other matter (it is, indeed, a point on which I believe some people have raised a question) as to 21 whether this present Bill goes far enough. If I may say so, I agree with the Lord Chancellor that it cannot very well go further than it does. The situation is unfortunate, because it leaves untouched the case of those who made an application for pension in respect of death or disability between August, 1921 (which was for this purpose the statutory end of the 1914–18 war), and September 3, 1939. Those claims cannot be brought within the range of the Pensions Appeal Tribunals—and I do not really see how they could, for the reasons which the Lord Chancellor has given. One cannot decide a matter fairly or judicially such a long time afterwards if one has no records on which to judge the facts.
What I should hope—and I think the Lord Chancellor would probably not be unwilling to confirm me on this point—is that if there is a case in such a period, where there is material which enables the Ministry of Pensions to say that it is a fair case for compensation, consideration will be given to the possibility of an ex gratia award. That is essentially a matter within the discretion of the Department. I think the experience of most of us who have followed the administration of the Ministry of Pensions, both in the time of Sir Walter Womersley and since, is that that Ministry are inspired with a great desire to do what is fair and decent in regard to the people who have suffered in the public service in this way. I therefore think there will be no difference of opinion between us about this matter. We are all very glad that the Government have found a way in which to enlarge the jurisdiction of the Pensions Appeal Tribunals in a manner which, I have every reason to think, will give a great deal of satisfaction to all who are specially interested in protecting and promoting the rights of men who have been wounded or who have died in the public service.

§ THE LORD CHANCELLOR
My Lords, if I may reply shortly, I should like to say this. I thoroughly endorse what the noble and learned Viscount has said about the debt of gratitude which we owe to the Pensions Appeal Tribunals. They have done, and are doing, very fine and useful work. With regard to the consideration about the inter-war years, 22 may I say this? The noble and learned Viscount made a slip when he said that it was a matter for the Ministry of Pensions. As I understand it, it is a matter for the Service Departments.

§ VISCOUNT SIMON
That is quite right.

§ THE LORD CHANCELLOR
I do not want to hold out any hopes, or to set up further Tribunals to deal with the Service Departments, but it is always open to them—as has been done—to look at a particular case and to put it right. I am obliged to the noble and learned Viscount for what he has said.