Clause 5 - Amendments to Pensions Appeal Tribunals Act 1943

Armed Forces – in a Public Bill Committee at 8:55 am on 24th February 2004.

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Photo of Gerald Howarth Gerald Howarth Shadow Minister (Defence) 8:55 am, 24th February 2004

I beg to move amendment No. 15, in

clause 5, page 2, line 42, at end add—

'(2) The Secretary of State shall reimburse a claimant for his reasonable expenses in taking his case to appeal under this section.'.

Thank you for that reminder about switching off my mobile phone, Mr. O'Brien. The clause deals with the pensions appeal tribunal and the amendments necessary to the legislation providing for it. We welcome the Under-Secretary of State for Constitutional Affairs, the hon. Member for Tottenham (Mr. Lammy)—I know that he will deal with the detail of the changes and we look forward to hearing what he has to say. The amendment is specific and it would impose an obligation on the Secretary of State to reimburse a claimant for his reasonable expenses in taking his case to appeal. It concerns an important issue, which my hon. Friend the Member for Canterbury (Mr. Brazier) will deal with in greater detail.

The Government are relying on the generosity of the voluntary sector, particularly the Royal British Legion, to support claimants in their detailed cases against the Government. The proposed changes, including the introduction of another tier of appeal, will impose substantially increased burdens on the voluntary sector. Although we accept that there may be a case for the social security commissioners having a role, we have been informed by the Royal British Legion that that will result in an increased work load for it.

My hon. Friend will correct me if I am wrong, but I believe that the Ministry of Defence website encourages appellants to approach the Royal British Legion. That is bizarre. I wonder what the reaction would be if the general public were aware that those who want to appeal against their pension entitlement award, having served in Her Majesty's armed forces, have to pay out of their own pocket or get support from a charitable organisation rather than the Government. Everyone has a warm feeling about the

Royal British Legion—they associate it with the poppy appeal and Remembrance Sunday—but about £500,000 of its money, raised through the blood, sweat and tears of its members throughout the country, is expended on providing support and advice that should come from public funds.

The Royal British Legion has a relatively small and stretched staff: my hon. Friend will set out some precise figures on what it is engaged in, but I shall try to give the Committee some idea of that too. Everybody will accept that it is not just to continue in this fashion, and I hope that the Committee will take a careful and considered view of the matter to judge whether the issue can be resolved. An amendment to a later clause deals with aftercare issues, and I shall explore that matter at greater length then. I want to make it clear that about 93 per cent. of cases that go to appeal are funded by the Royal British Legion, and it is simply not acceptable that such money has to be found from charitable sources. I do now know whether the Minister is alive to this issue. He is indicating from a sedentary position that he is, so I hope he addresses it.

Photo of Shona McIsaac Shona McIsaac Labour, Cleethorpes

I thank the hon. Gentleman for giving way, because I have been listening with interest to what he is saying. Can he tell me—I do not the answer—what happens with other public sector workers, such as those who work in health, local authorities and education? If they appeal, are they funded out of the public purse?

Photo of Gerald Howarth Gerald Howarth Shadow Minister (Defence)

I do not know whether other public sector workers are funded out of the public purse, but that is not our concern here today. Our concern is with Her Majesty's armed forces, and as we have discussed on many occasions in this Committee and on the Floor of the House, there is a strong sense in which members of the armed forces are a special case, because they put their lives on the line for their country.

Photo of Julian Brazier Julian Brazier Shadow Minister (Foreign and Commonwealth Affairs)

My hon. Friend is right to say that the armed forces are different. I recently dealt with a case in which a teacher was appealing for an interim award following an assault by a pupil. The teacher was able to go to his own GP with his own medical records and his own evidence from the hospital casualty department where he was treated. The point about the armed forces is that all those matters are handled in-house by the body against which members of the services are appealing.

Photo of Gerald Howarth Gerald Howarth Shadow Minister (Defence)

My hon. Friend makes an important point. We shall specifically address it when we discuss medical records, so I do not want to trespass on to that territory now. I am desperately searching my notes for some individual details relating to the Royal British Legion, but I regret that I cannot immediately lay my hands on them. Suffice it to say that we feel that the Government must address the issue, as it has not been addressed. The Minister has indicated from a sedentary position that he is alive to the issue and that he will address the Committee, so on that basis I hope we can proceed with a constructive debate to ensure

that something can be done to alleviate the burden that is falling disproportionately on one of the nation's favourite charities.

If the public knew that a lot of the money that they spend on the poppy appeal goes to fund people who are challenging the Government over their pension entitlement, I think that a degree of anger would be shown that would not reflect favourably on the Government's standing in the country.

Photo of John Robertson John Robertson Labour, Glasgow Anniesland

I do not want to speak for long, but I have some questions that I know Opposition Members will be able to answer, because they are more experienced in these matters than me. Having listened to confrontations and exchanges in previous sittings, I am somewhat in a quandary over the amendment. It appears to be a blank cheque: any appeal would receive finance, even if it was just someone's attempt to see whether they could get something. That would clog up the system. In view of those circumstances, the amendment is flawed.

I gather from the Opposition's remarks at previous sittings that they want to stop the judicial use of the Government's and taxpayers' money, but the idea of the blank cheque, if my interpretation of the amendment is correct, contradicts that. However, I am slightly concerned about the British Legion and the money that it has to put forward, and I have some sympathy with the remarks made by the hon. Member for Aldershot (Mr. Howarth). As an honorary member of the legion who does various bits of work for it up in Scotland, I understand its reservations. Although I am sympathetic, I also have to look at the financial situation, so I could not support the amendment in this form.

Photo of Shona McIsaac Shona McIsaac Labour, Cleethorpes

Does my hon. Friend share my concern that although there is great sympathy for the British Legion, there could be a lawyers' feeding fest if the amendment is accepted? They would take up cases on behalf of other public sector workers and cite that provision as a reason why everyone working in the public sector should receive public funds if they take an appeal to a tribunal.

Photo of John Robertson John Robertson Labour, Glasgow Anniesland

My hon. Friend makes a good point. I would at all times say, however, that the armed services are a different case entirely. They do not have a trade union to represent them; the British Legion is effectively their trade union. She makes a valid point about a charter for lawyers—they are not people who I have great sympathy for—so I will be interested to hear what the Minister has to say.

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

I am pleased to be here this morning to assist the Under-Secretary of State for Defence, my hon. Friend the Member for Hove (Mr. Caplin), and to represent the Government as a Minister at the Department for Constitutional Affairs on the important matter of the tribunal arrangements for our armed services. The

Government agree with the spirit of the amendment. We feel that the reasonable expenses of claimants should be met when taking a case to appeal. In that regard, we are introducing an amendment to clause 7, which I will get to in due course.

I want to explain what is available to people when they make applications. Both the pensions appeal tribunal and the social security commissioners provide for the expenses of claimants incurred in the course of a hearing. Accommodation and travel expenses are met, and the detail is set out in the pensions appeal tribunal rules and the procedural regulations under the Social Security Act 1998. The cost of rail travel or car mileage is paid. Subsistence is paid at a rate of £4.25 for five to 10 hours away from home. Overnight accommodation in London is also paid.

The community legal service—what some might think of as legal aid—can assist people in meeting other expenses incurred when taking a case before a tribunal. For example, the legal help scheme can provide up to £500-worth of assistance from a solicitor in preparing papers for appeal. However, the Government do not consider legal representation in front of a tribunal to be necessary. As my hon. Friend the Member for Cleethorpes (Shona McIsaac) mentioned, the general nature of the tribunal system, whether it involves a social security or an employment tribunal, is that people represent themselves.

Photo of Julian Brazier Julian Brazier Shadow Minister (Foreign and Commonwealth Affairs)

The Minister is rightly using the natural structure of employment tribunals as a parallel, but will he address the central point that at any other tribunal workers would naturally look to their trade union representative to act as the point of contact and as their advocate? A Conservative Member should not have to point that out to a Labour Minister. Members and former members of the armed forces do not have such a figure available, which is why the British Legion is paying out £500,000, and those bills will rise because the Minister is extending the process.

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

The legislation, which will bring into force the proximity of social security commissioners as the point of appeal from the PAT, is a direct consequence of Sir Andrew Leggatt's report, which was published in March 2001. It was the most comprehensive review of the tribunal system for 44 years. The report, entitled ''Tribunals for Users: One System, One Service'', recommended to Lord Chancellors that tribunals should have a second tier of appeal. To that extent, we are bringing current arrangements for armed services personnel into line with the report's recommendations.

In the report, Sir Andrew Leggatt and his committee, which was made up of distinguished members, largely reiterated established practice on legal representation, saying in paragraph 7:

''Tribunals are intended to provide a simple, accessible system of justice where users can represent themselves. So it is discouraging to note the growing perception that they cannot. Every effort should be made to reduce the number of cases in which legal representation is needed.

Logically that can only be done by seeking to ensure (a) that decision-makers give comprehensible decisions, (b) that the Tribunals Service provides users with requisite information, (c) that voluntary and other advice groups are funded so that they can offer legal advice, and (d) that the tribunal chairmen are trained to afford such assistance as they legitimately can''.

To that extent, I reassure hon. Members that the social security commissioners will act in that way. They will be able to bring to bear the specialism that they have built up, and people will be able to represent themselves.

Photo of Desmond Turner Desmond Turner Labour, Brighton, Kemptown

What the Minister says is true in theory, but unfortunately not in practice. For example, in social security tribunals, the average success rate of appellants without advocacy is about 50 per cent. My office runs an advocacy service for social security appellants and our success rate is 95 per cent. We are not lawyers, although we are probably far more effective in this context than they are.

A sensible advocacy service is needed—it does not have to have bells and whistles or to cost a lot. I hope the Minister will assure us that reasonable advocacy arrangements can be provided.

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs) 9:15 am, 24th February 2004

In response to my hon. Friend's point, we should put the matter in context. Under the new arrangements, the social security commissioners will replace the High Court, which was the only point of appeal from the PAT. For the first time, there will now be a further right of appeal to the higher courts—the Court of Appeal and the House of Lords. Only about 20 cases a year go beyond the PAT and more than two-thirds of them are appealed on the papers, not at oral hearings, although people can request a hearing should they need one.

As I said, the nature of our tribunal system is such that people should be able to represent themselves informally. My hon. Friend will know from experience that chairmen and commissioners conduct tribunals in an inquisitorial way, to counter the adversarial nature of the court system. He will also know that the tribunal system arose after the war with the growth of the state. The Attlee Labour Government set up the tribunals to make it easier for specialism to grow in particular sectors of the state, for example in benefits, employment and in the area that we are discussing. Sir Andrew Leggatt recommended that there should be a second tier of appeal to correct decisions that tribunals get wrong.

Photo of Eric Joyce Eric Joyce Labour, Falkirk West

I understand and accept much of what my hon. Friend says, at least about the principle of self-representation, but I also agree with my hon. Friend the Member for Brighton, Kemptown (Dr. Turner) that representation advocacy that lacks bells and whistles has its merits. In my modest experience, it increases people's success at other types of tribunal. There would be nothing to prevent ex-members of the armed forces being represented at the PAT, as they would be at an

industrial tribunal, by their new trade union or the trade union of which they were a member while in the services, even though the MOD did not recognise it.

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

In an oral hearing before a tribunal or in a written application, the applicant relies on the community legal service for assistance in preparing the case, and we heard about the wonderful role played by the British Legion in that respect. I emphasise that we are talking about a few cases that are appealed upwards. Legal help is available for those who need it, but in essence tribunals are intended to operate without legal counsel.

I should also say that in establishing the new arrangements, we expect the social security commissioners to be sitting specifically as pensions appeal commissioners, as is appropriate. They have expertise, as seven of the social security commissioners have experience of the pensions appeal tribunal and the important and special matters that the hon. Member for Aldershot was keen to illustrate. However, the Government are sympathetic to the thrust of the amendment.

Photo of John Cryer John Cryer Labour, Hornchurch

Like some of my hon. Friends, I have concerns about the issue. It has been predicted that the number of cases will rise, which may or may not be true. Will the Minister undertake to monitor the number of cases and to return to the question if there is a change in their number or nature?

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

The pensions appeal tribunal case load has been small compared with the other matters that social security commissioners consider, including child support, decisions for vulnerable lone parents, general pension matters for older people and appeals on serious accidents at work. The commissioners are specialists, and the number of appeals in the other areas is significantly higher than in pensions appeals tribunals. I am happy to keep an eye on the figures in the next few years to see how the new system is working and to record them in Hansard as is appropriate. However, all the signs are that the numbers will remain about the same, that the necessary specialism lies in the tribunal and that legal help is available to those who need it.

As I have said, the amendment has drawn attention to a drafting oversight whereby the expenses of regime of the commissioners has not been extended to appeals to the PAT. We have responded with a Government amendment, and an amendment to the Social Security Act 1998 is to be included in clause 7, which deals with appeals and amendments. I shall discuss it at the relevant time.

Given my comments, I invite the hon. Member for Aldershot to withdraw his amendment.

Photo of Gerald Howarth Gerald Howarth Shadow Minister (Defence)

I am sure that Members on both sides of the Committee are grateful to the Minister for his positive response to our expressions of concern. It is significant that three Labour Members made contributions and stated their concern.

I am grateful to the Minister for acknowledging the merit in our case and for undertaking to examine it. The hon. Member for Brighton, Kemptown made a

telling point in noting that there was a 50 per cent. success rate in cases without an advocate while the rate was bumped up to 95 per cent. with an advocate. I am not sure what form of advocacy the hon. Gentleman was offering and whether it was through his parliamentary office or just himself. I am sure that he would not have been on commission for that, but I am equally sure that his constituents, for whom he secured such success, would have been more than willing to have made some contribution towards his office cost allowance, although we know that that is not possible. It was, however a turning point. We welcome the fact that the Minister has taken the matter on board.

It would be helpful to know how many commissioners have had service experience. It would also be interesting for the Committee to know whether the Minister intends to give some sort of instruction that would ensure that those hearing the appeals are familiar with the particular circumstances that affect ex-service personnel. I hope that the Minister will respond to those points.

The Minister also mentioned that assistance was available, and set out the details on accommodation, travel and subsistence. I am not sure what one would get in London for less than five quid for eight hours of attendance—it might buy a cappuccino. The important point, however, is that the information that the Minister gave does not appear to be on the Veterans Agency website. Given that the Minister for Veterans is sitting beside the Minister from the Department for Constitutional Affairs, perhaps the two Ministers might get together during the break in our proceedings, to ascertain whether it might be possible for the website to incorporate some of the information that was given to the Committee this morning. That might help the appellants and the Royal British Legion.

I agree with the Minister's statement that he does not want to encourage legal representation at tribunals. That would be a retrograde step. I am in favour of keeping lawyers out of as much as possible, given the amount that they charge. Having had personal experience of such matters, I believe that lawyers are a very expensive commodity.

I shall declare an interest, although I do not have to, and say that my son has just joined that profession. He has done so only out of affection for his father, however, to ensure that he is able to maintain his father in retirement in the style to which he would otherwise not be able to become accustomed, after having served a number of years in the House of Commons. It would therefore be unfair of me to denigrate the legal profession. None the less, lawyers are expensive and I suspect that there is a degree of common ground on both sides of the Committee that it would be better for the tribunals if appellants did not have legal representation.

I am grateful to the Minister for giving the Committee the assurance that he will look into these matters. I hope that, after discussion with the Minister for Veterans, he will put some information on the

website. I also hope that he will consider the possibility of assisting the Royal British Legion through some sort of specific arrangement, such as a grant in aid. The hon. Member for Glasgow, Anniesland (John Robertson) made the fair point that we do not want to have a blank cheque, so that everyone is encouraged to lodge appeals because there is Government money available.

As we in the Committee know, there is no such thing as Government money: the money is taxpayers' money to which we and all our constituents have contributed. Ministers might like to consider the possibility of making such a grant in aid, which could be specifically ring-fenced, to assist the RBL and others who are engaged in that charitable work.

On the basis of the constructive response that the Minister has given to the Committee, and bearing in mind that we have tabled other amendments in which such matters will also be addressed, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5 ordered to stand part of the Bill.