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War Pensions: Appeals Process

Volume 656: debated on Wednesday 13 March 2019

Motion made, and Question proposed, That this House do now adjourn.—(Andrew Griffiths.)

We have had another momentous debate and series of votes affecting the nation’s future, but our role can also involve raising individual cases of injustice, so I am grateful for the opportunity to recall an issue that has affected one of my constituents. His experiences may well have affected others, which is why I want to bring it to the attention of the House. I hope that by debating it we can not only find a solution for my constituent by giving the Government an opportunity to do the right thing but also ensure that this situation does not happen again. I hope that by setting out the history of my constituent’s complaint lessons will be learned.

Those who serve our country make many sacrifices defending our interests, and they rightly deserve our respect, support and fair treatment both during and after their service. I want to take this opportunity to thank all our armed forces personnel, past and present, who represent our country across the world and stand ready to defend our country day and night. It saddens me that I have to bring this debate today to highlight a case in which a former serviceman has not, I believe, been treated fairly or with the respect that he deserves.

My constituent, David Cottrell, who lives in Neston, served in the Army, in the Cheshire, then Mercian, Regiment, for a period of 22 years, from 1987 until 2009, during which time he saw active service in both Northern Ireland and Iraq. As a result of his service, he was left with a number of serious and long-term medical conditions and was awarded a war pension at 50% and a lower standard of occupation allowance in 2012. He suffers from a number of conditions, including post-traumatic stress disorder, which causes him to suffer disturbed sleep, anxiety and flashbacks. He also suffers from polyarthralgia—aches and pains in his joints—and a number of medical conditions affecting his back that cause him severe difficulty in standing, walking, using the stairs, sitting and bending. It also causes him difficulty in using his wrists to lift and carry everyday objects.

I have sought the hon. Gentleman’s permission to intervene. Does he not agree that there must be a simplified appeals process for war pensions, when we take into account the fact that the stress of that process for those suffering from PTSD, to which he referred, can be the straw that breaks the camel’s back? This is another example of how our veterans are being let down by a system that must be reviewed urgently.

I thank the hon. Gentleman for his intervention. In these times of uncertainty, we can rely on the certainty that he will intervene in the Adjournment debate. The point that he made is absolutely pertinent to my constituent’s experiences. As the debate develops, I will show that he has experienced a convoluted appeals process, which only exacerbated his general condition.

As Members will know, the war pension scheme is run by Veterans UK to provide benefits for people with disablement caused or made worse by service in the armed forces. There is no list of prescribed diseases; claims can be made for any medical condition that is suffered provided that there is a causal link between the condition and military service. Rates for a war disablement pension depend on the degree of disability suffered, which is assessed on a percentage basis akin to the industrial injuries scheme.

A range of allowances and supplements may be granted depending on an individual’s circumstances, including for employability, mobility, constant attendance or severe disablement. As of 31 March 2018, there were 101,630 disablement pensioners and 15,854 war widows in receipt of a war pension, and in the year 2017-18, £517 million was paid out. With that amount of money at stake, it goes without saying that the process for assessment must be robust.

War pension claims are made to Veterans UK. If individuals are unhappy with the outcome they can request a review of their war pension decision, and they can also make an appeal to an independent tribunal.

My hon. Friend may be aware of the ongoing issue affecting those who allege that because of taking Lariam when they were in the forces, they have been completely disabled in later life. The way in which that has been dealt with is Kafkaesque. That affects many veterans, so does he agree that that needs to be sorted out as a matter of urgency?

My hon. Friend is absolutely right. There are many scandals that are not going to go away and will not be resolved until truth and justice are delivered, so I support his call entirely.

I would like to discuss the review and appeals process, because it has utterly failed to assist my constituent to receive the war pension to which he is entitled.

This soldier was in my regiment and I suspect in my battalion. May I ask the hon. Gentleman whether his constituent has consulted regimental headquarters, either in Chester or in Lichfield?

I thank the hon. Gentleman for his intervention. I do not know the answer to that. My constituent has sought numerous sources of assistance throughout the years, some of which I will go into. This has proved to be an extremely time-consuming and convoluted process, which has caused him unnecessary stress—the hon. Member for Strangford (Jim Shannon) referred to that—and has undoubtedly exacerbated his ill health and affected his quality of life. Opportunities to act and put things right were repeatedly missed throughout the handling of his case. I hope that his experience has not been repeated in the other 588 war pension appeals cases that, at 11 November 2018, were still in train.

As I have stated, my constituent was awarded a war pension at 50% and a lower standard of occupation allowance in 2012, following as assessment that noted that Mr Cottrell

“cannot walk more than 200m without stopping or severe discomfort”.

Upon leaving the Army, he worked as a tutor for Manchester College for a number of years, delivering training to professional drivers, which included on-the-road training as well as classroom-based training. In 2013, he applied for his pension from the college to be released early on health grounds. He was referred to Dr Nightingale in December 2013, via the occupational health team, for an assessment to be made. Dr Nightingale concluded that he was unable to work as she did not

“envisage significant recovery to facilitate return to work in due course to enable ‘gainful employment’ at 30 hours per week, every week, on a sustained basis for a 12 month period”.

As Mr Cottrell was unable to work, he submitted a deterioration claim to request a formal review of his war pension assessment in January 2014 and was sent for an assessment with Atos Healthcare in April of that year. The report from this assessment is scattered with errors, which is not surprising, given that Mr Cottrell informs me that he was not asked all the questions that appeared in the report. We have all heard about the errors and indignities our constituents have suffered during these assessments, and earlier today I took part in a Westminster Hall debate on disability assessment services, where Member after Member brought up harrowing examples of flaws with the assessment procedure. Now is not the time to rehearse those massive flaws in the way those assessments are carried out, because, flawed though that assessment was, I am here today because of opportunities that were not taken afterwards to put the situation right.

Does my hon. Friend agree that the pension age has been increased to 67 and we have WASPI—Women Against State Pension Inequality Campaign—women who must also have served in the Army, perhaps in this regiment, and they are entitled to a pension as well, along with others?

I thank my hon. Friend for his intervention and he is right; the injustices the WASPI women have suffered have been repeatedly mentioned in the Chamber. When they see how we are incapable of finding a way through our current predicament, they will be disheartened to see that this Government cannot deal with such a major injustice.

Let me return to Mr Cottrell’s assessment. It contained many errors, including saying that Mr Cottrell drinks alcohol occasionally when he was not asked about alcohol during his assessment. It exaggerated his ability to walk, saying that he was able to walk further than 800 metres, despite only being observed walking 10 metres to the examination room during the assessment. Let us not forget the earlier assessment in 2012 said he could not walk more than 200 metres, and clearly his condition had not improved in the meantime. Perhaps the most incredulous part of the assessment was the conclusion that his PTSD was ‘likely to improve”, an assumption that was not based on any medical evidence whatsoever. In fact, it was direct contradiction to what Dr Nightingale said in her report, which was that this would not happen. Clearly, her views were not given anything like the same weight as the views of the Atos assessor, who saw Mr Cottrell for only a short amount of time.

As a result of the incorrect report, Mr Cottrell received a decision letter in July 2014 stating his war pension rate would not change. He disputed the findings of the assessment, as he did not believe that the medical evidence had been adequately taken into consideration. His complaint was referred to the independent complaints executive, which informed Mr Cottrell that his complaint was not in its remit and so he requested that Veterans UK investigate his complaint. Mr Cottrell informs me that the chief medical officer of Veterans UK reviewed the complaint and concluded that Dr Nightingale’s assessment was incorrect as it only referred to him being unable to work for the next 12 months. Rather incredulously, he also said that the report should not be trusted due to the close relationship Mr Cottrell would have with Dr Nightingale as his GP. Given that Dr Nightingale assessed Mr Cottrell via the occupational health department of his employer and was not his GP, this demonstrates clearly that her report was not properly considered, understood or possibly even read at all.

In fact, the contents of Dr Nightingale’s report are really the nub of the issue, as it has since transpired that the paperwork shows that the decision on Mr Cottrell’s claim was made three days before the medical report from Dr Nightingale was received by the assessors. The report was recorded as being received by the department on 14 July, although for some reason the recorded date is 15 July, but, crucially, the decision on Mr Cottrell’s claim was made on 11 July. This is a basic error—it is factually indisputable—but since that point, the whole process has been characterised by a total failure to acknowledge that mistake and act accordingly.

An example of that failure is that the records reveal that when the assessing doctor was informed that Dr Nightingale’s report had been received late and was asked whether that would have altered his decision, the assessing doctor did not actually look at it again, because the response was in fact from a different colleague, who said that the assessing doctor was not available, but that in the new doctor’s opinion the original decision remained appropriate. It seems to me to be wholly inadequate to have one professional trying in effect to second-guess what another professional might have said. It should have been sent back to the original doctor to do the whole thing again. Had that happened, I very much doubt that we would be here today.

Following that decision, Mr Cottrell proceeded with the internal complaints procedure of Veterans UK, while also appealing the decision at tribunal. His case was eventually heard in February 2015, and the tribunal was unsuccessful. Worryingly, papers from the tribunal demonstrate that half Dr Nightingale’s report was omitted from the appeal pack. So, for a second time, the full evidence was not considered. Following that, Mr Cottrell was told that only procedural issues could be dealt with via the remaining complaints procedure.

Mr Cottrell informs me that because of the controversy over Dr Nightingale’s report, he decided to write to her in September 2015 about the interpretation that the department had made of her report regarding the period for which he was unfit for work. Dr Nightingale responded by stating that in her professional opinion, as had been detailed in the report previously, Mr Cottrell was permanently unable to work. That letter was then sent to the MOD.

In the meantime, Mr Cottrell made a new deterioration claim for extra allowances for his war pension, and Dr Nightingale’s letter was added to the new claim file, rather than being considered as part of the ongoing dispute regarding the 2014 Atos assessment. This review resulted in an increase in Mr Cottrell’s war pension from 50% to 70% in August 2015, and he got unemployability supplement in November 2015. Indeed, on 26 November 2016, Mr Cottrell received a letter from Veterans UK saying that he was entitled to unemployability supplement

“because we think you are unable to work”.

Curiously, this decision did not require a medical assessment, and instead used both the letter submitted by his GP and the report made by Dr Nightingale. So, 18 months on, we finally got the right decision, even though the medical opinion had not changed during that time. Given that both the information from his GP and Dr Nightingale had been discounted by Veterans UK previously, Mr Cottrell feels that demonstrates that the objection to his appeal was unfounded and that his award should be backdated to January 2014, when the deterioration was originally reported and the application made.

In the meantime, with regards to his complaint, Mr Cottrell was informed by Veterans UK that it would no longer respond to his or his solicitor’s correspondence, so he referred the complaint to the Parliamentary and Health Service Ombudsman. Following this, Mr Cottrell received a visit at home from the customer services manager of Veterans UK. He tells me that during this visit he felt he was being encouraged to drop his complaint because his new claim had been approved. I find that a rather curious approach to take, if not an improper one. Frankly, the implication that he should be satisfied with his lot is simply not good enough.

My constituent deserves to receive the war pension to which he was fully entitled from the beginning. He should not be expected to write off several years of underpayment just because the MOD got it right in the end. I am deeply concerned that because the appeals process open to him was not sufficient to deal with his complaint and instead resulted in a drawn-out affair, he had to use a solicitor, running up a bill of nearly £5,000. It was only because of the financial costs that he could not pursue his legal case any further.

I have been trying to resolve this unfair situation since June 2015, just after I was first elected. That is nearly four years. In that time, I have written to the Minister responsible on nine occasions and twice to the independent complaints panel, which subsequently took up Mr Cottrell’s complaint. At this point, I pay tribute to my caseworker Eve, who has done a great job in keeping the issue going all the way through. We should all acknowledge the great work that our staff do. I think that every Member would agree that without them we would not be anywhere near as effective as our constituents would like us to be.

As the House can tell, the details of this case are long and complicated, but at the heart of it lie two simple truths: first, a mistake was made in assessing Mr Cottrell’s deterioration claim in 2014; and secondly, since then, no one has been prepared to admit that mistake and put it right. That is not how justice is supposed to work in this country. If a wrong has occurred—I hope that it is patently obvious from what I have said that the original decision was wrong—then nobody, and certainly not someone who has suffered as a result of service to their country, should be faced with such a begrudging attitude, which is essentially, “Well we got there in the end, albeit a few years late, so be satisfied with your lot.”

That brings me back to where I started. Our servicemen and women deserve respect, support and fair treatment both during and after their service. I do not believe that we have seen that in this appeals process. I am concerned that the bodies and processes are not sufficient to deal with complaints in general.

Eventually, the Veterans Advisory and Pensions Committees found in Mr Cottrell’s favour and strongly recommended that his war pension was backdated, yet Veterans UK ignored this recommendation.  I appreciate that it is an “advisory” committee, but what is the point of making recommendations if no one listens to them and they cannot be enforced? Mr Cottrell was also concerned that he was not able to present his case in person to the VAPC, which meant that he could not, for example, make the case for repayment of his legal fees. Mr Cottrell does not know what evidence was considered by the panel, and his communications with VAPC were via Facebook Messenger. I think there is now an acceptance that that was not an appropriate channel for communication, but it does bring into question the resources available to the VAPC to deal with the administration of hearings, which seemed to take an age to happen.

It has also been brought to my attention that the Independent Complaints Panel is made up of members of the VAPC, so how, in those circumstances, can it really be independent? In my correspondence with the Minister, and his predecessor, I have asked for a review of the way that this case has been handled, so that mistakes are learned from and no one else has to suffer in the way that my constituent has. I believe that my constituent deserves an apology from the Ministry of Defence, compensation to cover his solicitor’s fees and the backdating of his award to the original application date.

As the Minister himself confirmed in his letter of March 2017, the backdating of awards can be considered when there has been an error in the handling of a case, and I believe that that is the only reasonable outcome. It is manifest that there was an error in the original assessment, and after four years there was a recognition by the VAPC that the original decision was wrong, but why my constituent feels so strongly about this, as do I, is that it should not have taken four years to go through this process, which at the end of it turns out to be something that cannot be legally enforced.

Although there is obviously the individual injustice that my constituent has suffered, questions need to be asked about how such an obvious error was allowed to continue for so long. The Government also need to review the powers of the VAPC. If its decisions cannot be enforced then it is a toothless body, which gives people false hope and wastes people’s time. Frankly, our veterans deserve better.

I start by congratulating the hon. Member for Ellesmere Port and Neston (Justin Madders) on securing this evening’s debate on this very important subject. At the outset, I should pay tribute to all members of our armed forces, in whichever service they serve in, for their bravery and commitment to protecting the values and freedoms that we are so fortunate to enjoy in this country. I am sure that the House will agree that both they, and those who served before them, are deserving of an enduring debt of gratitude by the nation. That is precisely why debates such as this are so important and why, as I said, I congratulate the hon. Gentleman for his persistence in this case.

The Government’s concern for servicemen and women does not end when they leave Her Majesty’s armed forces. In the context of this debate, we are determined to ensure that, where they have been injured, they have speedy, fair and transparent access to pension and compensation rights. The hon. Gentleman rightly raises the case of his constituent, Mr Cottrell. He also rightly highlights that this has been the subject of extensive ministerial correspondence now over some four years, Indeed, I was the Minister’s predecessor, so some of the correspondence has been with me. Therefore, I am only too well aware of that case.

The hon. Gentleman goes into enormous detail of the case, and much of that has been dealt with in the detailed correspondence that we have had. For the purpose of the debate this evening, it would not be in the House’s interest for me to go through all of that detail, not least because I do not have time. There is a wider point here about how this process works. What I would like to do—I will come back in some detail later—is to touch on some misunderstandings about how this process works, or is seen to work. Crucially, I hope also to touch on how we are looking at improving this process so that, hopefully, cases such as this will be more transparent and will not go through the long-winded process that we have seen.

The tribunal was created in 2008 as part of the unified tribunal system, which was established at that time under the Tribunals, Courts and Enforcement Act 2007. Formerly, it was dealt with by the pensions appeal tribunal. There are separate tribunals for veterans in Scotland and Northern Ireland, but United Kingdom law applies throughout. I will come back to the separation of process, because that is one area where we can improve.

As the tribunal service is part of the Ministry of Justice, I stress that any decisions reached at appeal are wholly independent of any decisions that may have been reached by the Ministry of Defence. The first-tier tribunal has jurisdiction to hear appeals from veterans who are unhappy with a decision reached by Veterans UK, the organisation that receives claims from service personnel under the compensation schemes that it administers. Veterans UK administers two schemes: the war pension scheme, which deals with injuries sustained or aggravated by service in Her Majesty’s armed forces prior to 6 April 2005; and the armed forces compensation scheme, which deals with injuries sustained in service on or after 6 April 2005.

The tribunal appeals process is determined by the Tribunal Procedure (First-tier Tribunal) (War Pensions and Armed Forces Compensation Chamber) Rules 2008. I will explain how the process works. A claim is made by the claimant to my officials within Veterans UK. We have heard about that. They assess the merits of the claim and reach a decision based on service and medical records and external medical evidence from the claimant’s general practitioner and hospital consultants, as appropriate. A claim may typically be for a disabling injury or battle stress psychological disorders. If Veterans UK does not allow the claim, the claimant can seek a review of that decision. In the case of a claim under the armed forces compensation scheme, that is called a reconsideration. If the decision remains the same on review, the claimant may appeal to the first-tier tribunal, but they must do that within one year of receiving written notice of the Veterans UK decision. In the case of claims under the armed forces compensation scheme where a reconsideration has not been requested, that will none the less be carried out as part of the appeals process.

Following an appeal against a decision being made to my officials within Veterans UK, it prepares what is known as a response document. That document includes all the evidence upon which the decision under appeal was based, along with any relevant medical and legislative information. A copy of that is sent to the tribunal service, the appellant and their representative at the tribunal. Once that has been received by the tribunal service, it begins the process of listing the hearing at a venue as close to the appellant’s home as possible.

The appeal to the tribunal is a full-merits hearing, which means that it is a complete reappraisal of the case. The appellant can bring evidence and witnesses to the tribunal and the panel is made up of a judge, a medical member and a service member. The panel ensures that proceedings are balanced and inquisitorial in their approach. Tribunals are less formal than court environments and every effort is made by the panel to assist appellants in putting their case. Sometimes appellants are helped by members of various support groups and charities such as the Royal British Legion, the Royal Air Forces Association, Combat Stress, Blesma: the Limbless Veterans, the National Gulf Veterans and Families Association and UK armed forces charities.

I thank the Minister for giving way, and I thank the hon. Member for Ellesmere Port and Neston (Justin Madders) for securing this debate. I make the point to the House that one of the things that Mr Cottrell might or might not have done is lean on his friends in the Ellesmere Port company. There is a Cheshire Regiment old boy network there, and that is very important. If the hon. Gentleman would like to give me more details—I seem to remember a Cottrell serving with me in Bosnia—I will make sure that there is a connection.

My hon. Friend makes an important point: while there is very much a process—this goes very much to the heart of our armed forces and how we operate—the wider support mechanism through the regimental associations that he describes can also offer significant assistance to our veterans, particularly when they have to go through what can be a fairly challenging and difficult process. I hope the hon. Member for Ellesmere Port and Neston will follow my hon. Friend’s advice and do that.

Let me return briefly to the tribunal process. A decision of the first-tier tribunal can be appealed to the administrative appeals chamber, or the upper tribunal, if it appears that there may have been an error of law. England, Wales and Northern Ireland are the only parts of the United Kingdom where appellants in these cases must lodge their appeal with Veterans UK rather than the tribunal itself. Indeed, it is unique in this regard in the unified tribunals system. I appreciate the concerns of many stakeholders in this area of law, expressed over several years, that this inconsistency is undesirable. Indeed, the complexity of the process seems to have made a contribution to the hon. Gentleman’s constituent’s case. It has been suggested that the fact that Veterans UK is part of the MOD means that there is a lack of independent assessment of claims. However, the Government are satisfied that Veterans UK is scrupulous in assessing veterans’ claims. While it is accepted that there can sometimes be a delay in the sending of appeals documentation from Veterans UK to the first-tier tribunal, this is an inherent risk in any system in which there are separate tiers of administration.

The process in Scotland is quite different. There, appeals are sent by veterans directly to the tribunal. This is known as direct lodgement. The Government agree that direct lodgement should also apply in England and Wales, although for this to happen there would first need to be changes to the tribunal’s procedure rules, which are made by the independent Tribunal Procedure Committee. Subject to the necessary changes being put in place by the committee, the Ministry of Justice intends to introduce direct lodgement as part of an ambitious programme of court and tribunal reform in which it is investing about £1 billion, and which is already under way. The aim is to introduce direct lodgement for veterans’ pension and compensation appeals in England and Wales next year—in 2020—if we can, but because of other work ahead of it in the reform programme, I cannot give the House the firm assurance that that will happen.

I would like to draw the House’s attention to the vital role played by my officials within the Veterans Welfare Service. They can and do assist our veterans in submitting compensation claims, and provide advice about how to submit an appeal should they be unhappy with a decision reached about their compensation entitlement. In addition to this, the welfare service can provide help and advice on a much wider range of issues, including access to charitable assistance, housing and entitlements to benefits from the Department for Work and Pensions.

The hon. Gentleman is absolutely right to draw the House’s attention to the challenges that his constituent has met while going through this process. While the principal substance of his appeal was dismissed, there has been an apology for some of the handling of his case. I hope that I have taken this opportunity to outline to the House how we are looking at ways of making this process better and more fit for purpose in future.

Question put and agreed to.

House adjourned.