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Disablement Pensions (Back-Dating)

Volume 728: debated on Wednesday 18 May 1966

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Motion made, and Question proposed, That this House do now Adjourn.—[ Mr. Walter Harrison.]

12.14 a.m.

The subject which I wish to raise this evening is one which will be of considerable interest to all those who are having the benefit of a disability pension or who may have it in the future. Since I was fortunate enough to be allotted this Adjournment debate, I have been interested to discover the number of hon. Members who are aware of cases which have arisen in which the rate of disability pension had been altered by the findings of an appeal tribunal. The question of how far back the revised assessment should be dated has been of very considerable interest indeed. The practice has been to date back a revised assessment only to the date of the appeal, and it is to highlight the question of how far back revised assessments should be backdated that I raise this topic tonight.

There are two aspects with which I will deal, one a particular case to which I shall refer and the other the general proposition which will affect all cases. I do not propose to attempt to separate the one from the other, but it will be clear from my remarks on the particular case how far they have a bearing on the general position. I will, first, briefly outline the history of the original case which brought the subject to my notice, because from that I will be able to deploy a number of points I have in mind.

There was a certain Mr. Rolph in my constituency who, before joining the Army, was suffering from a malady which I have, with the aid of the Library, attempted to learn to pronounce correctly. No doubt the Minister will be able to tell me whether inv pronunciation of cheiropompholyx is correct. He was discharged from the Army in November, 1959, with a disability pension of 40 per cent., being 20 per cent. in connection with the knee, 10 per cent. for the ulcer and 10 per cent. for the rash. That was reduced in January, 1960, to 20 per cent. He appealed against that and it was raised to 30 per cent. It was reduced again in 1962 to 20 per cent. and, when finally the matter was dealt with by an appeal—begun in 1964 and concluded in 1965—his disability pension was increased to 40 per cent.

I want to know why that assessment of 40 per cent. should not be back-dated to the date from which it is acknowledged that he suffered from this malady. To give an indication of the effect of dating it back, I calculate that the increased award is about 14s. a week. Back-dating it further than the date of the appeal represents an increase of about £170 in all.

I propose to advance a number of arguments, although I do not expect the Minister to give me the judgment of his Department tonight on this case because I hope he will agree that there should be more time to reflect on what I have said than is possible in replying to a speech in the House, particularly at this late hour. I propose, therefore—in the hope that the Minister will study these points—to highlight certain matters.

In a letter from Blackpool to my constituent explaining why the Department was unwilling to back-date the new award further than the date of his appeal, he was told:
"It is not possible to make the award retrospective to 1960 because the Royal Warrant provides that payments shall not normally be made before the date of a successful appeal".
I have with me a copy of the Royal Warrant, in which it is stated:
"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 …"
In other words, there is discretion and it is possible for cases to be back-dated further than that. The first point I make is that it is somewhat misleading for a constituent to be told by the Department in Blackpool, I believe, that it is not possible for this to be done when clearly it has been shown that it is possible.

In a letter to me in February this year, the Minister referred to a long-standing rule on this matter. I hope that he will not hide behind the proposition that when there was a Conservative Government a similar rule applied and that any attempts that may have been made to change that rule were unsuccessful and that therefore he cannot be blamed merely for following a practice which has prevailed in the Department for a good many years. I think this an unsatisfactory rule and it does not become more satisfactory because a previous Government happened also to have applied it. So I hope that we shall not hear anything more on that point.

He did, however, acknowledge that discretion can be exercised. A very interesting point in his letter of 18th February was:
"The rule is a counterpart of our practice of allowing claims to be made or renewed without any time limit."
Whether one should paraphrase that comment as a quid pro quo, I do not know, but he advances the proposition that a limit to back-dating should continue to prevail because there is no limit to the time within which an appeal can be brought forward. It is all very well for him to say that there is no limit to the time when an appeal can be brought forward, but his Department, writing to my constituent on 31st December, 1965, said:
"If you decide to appeal you must apply to the Ministry of Pensions and National Insurance not later than three months from the date of this letter."
If the Minister is right in saying that there is no limit to the time in which an appeal can be made, that should never have been written to my constituent. If the Ministry is right in saying to my constituent that he must appeal within three months if he is not satisfied with the verdict, the quid pro quo for the rule I challenge will not stand up to examination in this case.

I admit that in this case there was two years' delay between rejection by the Ministry of the claim to a disability pension on the ground that my constituent was suffering from this cheiropompholyx. The argument has been advanced that this is too long to consider dealing specially with a case which evidently has taken so long to come forward with an appeal. It is true that the first reason advanced for that appeal by my constituent in correspondence with the Ministry was that he was not aware that this particular part of his trouble had been rejected originally and the Minister tells us that he ought to have been aware because he was so informed. I think there are many cases where people not well versed in the methods of Government Departments fail to appreciate some of the documents they may receive. Moreover, originally my constituent, for the five months after the notification upon which the Minister relies, was recovering from a second operation and was still in the hands of a hospital.

So at that time the exceptional treatment open to people who were suffering from an illness could, at any rate in part, be advanced as a justification for special treatment and the use of the discretion open to the Minister. In fact, this man thought that he had only three months in which to apply, and when he was finally quit of treatment from the hospital some five months later he genuinely thought that it was too late. This was another reason why so long was taken to apply.

But it may be asked how it was that two years later he applied if he thought that there was a three-months' bar on his so doing. He did not apply in the ordinary sense of the word. He wrote asking whether this malady had been taken into account when his original assessment was made. The Minister advised him that it had been taken into account but had been rejected. But the Minister, very reasonably, decided to treat that as an appeal, and started the process of appeal. That explains why, despite the belief in the three-months' barrier, the appeal started in 1964.

There is one other aspect which I would ask the Minister to take into account when deciding whether I am not right in urging that this should be treated as a case warranting further back-dating than is permitted by the rule which he normally applies. When the tribunal finally dealt with the case it was established that the Ministry was not justified in telling the tribunal that the disease was one from which it was thought that he was not suffering at the time. It so happens that in his duties in the Army this man typed his own medical report, and that enabled him to have a knowledge of what was said about him back in 1960 which would not have applied to the ordinary person, and it enabled him to establish before the tribunal that the Ministry had not correctly represented the situation at that time. I am advised that the tribunal saw fit to rebuke the representative of the Ministry for the way in which it had dealt with the matter. So I hope that that will be taken as another extenuating circumstance warranting further back-dating.

There is another aspect of this sad story which it would not be right to overlook. I refer to an extract from a letter sent to my constituent after the tribunal had decided to award him 40 per cent.:
"It is still the opinion of this Department that your disability is neither attributable to service nor aggravated by it, but since the tribunal ruled that it is so and their decision is binding upon the Ministry it has been accepted as such."
The Ministry had no option, of course, but to accept it as such. I regard it as extremely unreasonable to put into the mind of someone who has been subjected to a tribunal that, even if its ruling is final, the Ministry does not accept it, so that my constituent was left with the thought that perhaps he was taking money under false pretences. The Ministry should accept in good grace when a second opinion has been brought to bear and accept that it is likely to be more correct than the one that it first had, and it ought not to seek to justify carrying on with the same view held prior to reference to the tribunal.

Lastly, if these cases go before a tribunal it is surely tantamount to saying that this higher court of appeal has ruled that the first assessment is not fair and that a subsequent assessment is fair. It seems to me that the procedure is entirely wrong and that if it has been established by a higher court that a second thought is the fair one, it ought to go back to the time from which the first assessment was made and should not arbitrarily be restricted by the date at which it happened that an appeal in fact was made.

These appeals are timed for all sorts of reasons. It may be that on rereading some correspondence fresh ideas are brought out. It may be that somebody who has a friend knowledgeable in these matters will advise his friend that he ought to get a far better assessment than has been made and that he ought to appeal. The timing, therefore, is very largely fortuitous. It seems to me that in these cases where we are dealing with genuine and deserving cases it is quite wrong to back-date the award to a fortuitous date brought about by considerations which have nothing to do with the merits of the case, and that it should be back-dated to the date of the original award which has been over-ruled by subsequent tribunals.

I hope the Minister will appreciate how many people feel aggrieved by the operation of the rule to which I have referred, and that he will adjust the rule for all cases as he has the power to do. I hope that after tonight he will look at the argument that I have advanced on behalf of my constituent and will see whether I am not right in urging that this case should be back-dated to 1960 when his original disability pension was established.

12.33 a.m.

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

I am grateful to the hon. Member for Aylesbury (Sir S. Summers) for putting his case so cogently and also for staying so late to present this important matter for his constituent. Time is rather short, and so I will try briefly and as succinctly as possible to answer the hon. Gentleman who has raised this question which is of some importance in the sphere of war pensions—the starting date of an award which results from a successful appeal.

The hon. Gentleman has criticised the rule that we apply, and in the course of his speech he referred to his constituent, Mr. Rolph, who was affected by it. I hope to be able to satisfy the hon. Gentleman and the House that the rule is a fair one in itself and has, on the evidence, been fairly applied in this case. Nevertheless I shall have a little more to say about that at the end of my 10 minutes. Certainly I shall consider the further points which have been brought forward about Mr. Rolph.

Article 65 of the Royal Warrant which the hon. Gentleman read out governs this matter. The hon. Gentleman quoted from it, and it reads as follows:
"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."
Some five months ago I dealt at some length with this question of arrears. I then said:
"This article reflects a rule of long standing which has been developed over the years by successive Ministers of Pensions as part and parcel or 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."—[OFFICIAL REPORT, 7th December, 1965; Vol. 722, c. 308]
As the House will appreciate, the article deals not only with awards following an initial claim but also with awards made as the result of an appeal. The underlying considerations are the same in both cases, and what I shall have to say may to some extent traverse the same ground as I did in that debate; but I make no apology for that.

The subject is very wide and covers all types of appeal for a war disability pension, but, as the House knows, there are two distinct classes of appeal—entitlement and assessment—and the position is different according to which type of appeal is being made. I should emphasise also that what I have to say relates only to the 1939 war and later. The rights of appeal for the 1914–18 war have long since been exercised or have expired.

The question of arrears does not ordinarily arise in relation to assessment appeals, and I do not think that the hon. Gentleman is really concerned with them in this case. Specific time limits are laid down within which such appeals must be made. For entitlement appeals, however, there is no time limit on making an appeal. This means that it is possible for an appeal to be made at any time and be heard without question in respect of a claim which was rejected more than a quarter of a century ago. If the appeal, perhaps with new evidence, is successful, or the claim is conceded by my right hon. Friend without recourse to the tribunal, it really would not be reasonable that we should make the pension payable back to the original claim unless there were some special circumstances—this is why I listened so carefully to the hon. Gentleman tonight—and these circumstances prevented the claimant from exercising his statutory right of appeal to the tribunal sooner. Of course, the period may be much less than 25 years, but the principle is the same.

There is a further consideration I should mention. I have referred to the very favourable conditions upon which war pension claims are considered and which include a generous benefit of the doubt. It is possible to get a progressive build-up of doubt as the circumstances thought to justify an appeal recede into the past, and it would be quite unfair if a man who appealed late could get an advantage over one who appealed quickly simply because the doubt becomes harder to dispel. There is also a practical objection to the payment of arrears. Often it would be difficult, if not impossible, to gauge the effect of disabilities retrospectively—I shall return to this when I come to the suggestion the hon. Gentleman has made—and we should have to deduce from scanty or, perhaps, non-existent evidence what the degree of disablement had been.

There could be periods when the disability in question—I am dealing now with general cases—was causing no disablement. It would clearly give rise to inequality of treatment of pensioners who can be given proper assessments based upon current medical examination if we were to try to make some kind of notional assessment back over the past.

This does not mean, however, that we apply the arrears rule rigidly. Naturally, we allow the claimant a reasonable time to make up his mind whether to appeal or not. If he appealed within three months of our notification, we would, of course, pay back to the date of his claim, if the appeal succeeded. The Warrant, as the hon. Gentleman said, gives my right hon. Friend a discretion to waive the rule, and where an appeal is made in reasonable time, or where there are exceptional circumstances, she does not hesitate so to do. Such circumstances might be, for example, when a claimant is prevented from claiming earlier by some factor outside his own control such as serious illness or mental incapacity, or where there has been manifest official error or misdirection. It is not enough that the claimant simply did not trouble to pursue his appeal.

In effect, the hon. Gentleman suggested, if I understood him, that the Minister's discretion should be removed and that there should be instead a mandatory provision to start pensions from the date when the disability in question first afflicted the appellant. I am sure that he will appreciate from what I have said that this would not be a realistic proposition. It would be tantamount to abandoning the rule altogether, not only in relation to appeals but in relation to claims as well, since it could not, in fairness, be confined to appeals. It would mean that a man who was not invalided—and if he was not invalided we would not know that there was anything wrong with him—could delay making a claim upon us for 10, 20 or 30 years without any good reason and then expect to receive a pension back-dated, in effect, to the time when he left the forces. What is more, we should have to set about trying to assess the degree of disablement over this past period. I have already referred to the difficulty, sometimes the impossibility, of this and its unfairness as compared with those who claimed or appealed promptly.

I come now to the case of Mr. Rolph. He served in the Army as a private with the Royal Army Medical Corps for two periods, between August, 1954, and August, 1956—a period of National Service—and between July, 1957, and November, 1959, when he was invalided out for gastric ulcer, herniation of the muscle in his right knee and cheiropompholyx which, as the hon. Gentleman has said, is a form of dermatitis or rash that comes and goes like other skin diseases. We considered all three disabilities on discharge. We accepted that the gastric ulcer and the muscle herniation were due to service and Mr. Rolph was awarded a pension for them, first at the 30 per cent. and then at the 20 per cent. rate. Our doctors advised, however, that the cheiropompholyx was a constitutional disease and unrelated to service.

We advised Mr. Rolph and his solicitors of our decision on 26th January, 1960, and told him of his right of appeal against the rejection of cheiropompholyx. He did not appeal until 7th July, 1964. When the appeal was allowed, we increased his pension to take account of the disablement from cheiropompholyx from the date when he made his appeal—that is to say, from 7th July, 1964.

Will the hon. Gentleman accept from me that Mr. Rolph thought that he was time-barred and therefore did not feel free to appeal?

I have listened carefully to the points put by the hon. Gentleman. I have no time to go into detail but what he said has been noted and will be carefully studied.

We have looked at the case with every sympathy. I sincerely believe that every effort was made to make the position clear to him and his solicitors. Up to now, we have had no evidence that he was prevented by illness, mental incapacity or any special reason. But I have listened carefully to what the hon. Gentleman has said.

I must apologise—and it is right that I should do so—

The Question having been proposed after Ten o'clock on Wednesday evening and the debate having continued for half an hour, Mr. SPEAKER adjourned the House without Question put, pursuant to the Standing Order.

Adjourned at sixteen minutes to One o'clock