Pensions Appeal Tribunals (Late Appeal) (Amendment) Regulations 2022

Baroness Goldie Excerpts

Tuesday 17th January 2023 Grand Committee

Moved by

[Baroness Goldie]

That the Grand Committee do consider the Pensions Appeal Tribunals (Late Appeal) (Amendment) Regulations 2022.

[The Minister of State, Ministry of Defence (Baroness Goldie) (Con)]

I proffer my apologies to the chairman and the Committee. I am terribly sorry that my late arrival meant the adjournment of the Committee. We thought the Transport (Scotland) Act order would be a much meatier affair than it apparently turned out to be.

My Lords, we enter the somewhat technical world of the MoD Armed Forces compensation schemes, but we do so for an important and necessary reason: because the statutory instrument before us will change the rules allowing late appeals against decisions under the various Armed Forces compensation schemes in Scotland and Northern Ireland. The purpose of these changes is to align the rules for Scotland and Northern Ireland with the current rules in England and Wales.

The schemes provide compensation to persons who have sustained illness, injury or death wholly or partly as a result of service in the regular or reserve Armed Forces. Claims made under the rules of the various schemes are decided by the Secretary of State for Defence, and claimants who do not agree with the decision have a right of appeal against most substantive decisions. Before 2008, all such appeals were made to the Pensions Appeal Tribunal, which operated across the whole United Kingdom under the provisions of the Pensions Appeal Tribunals Act 1943.

Following the 2008 courts and tribunal reforms in England and Wales, a War Pensions and Armed Forces Compensation Chamber of the First-tier Tribunal was created in England and Wales with its own rules, made under an Act that extended to England and Wales only. The Pensions Appeal Tribunals in Scotland and Northern Ireland continued to exist under the provisions of the original 1943 Act.

As I have said, claimants who disagree with certain decisions by the Secretary of State may appeal those decisions; they have 12 months in which to make that appeal. There is also provision for what is known as a “late appeal”. This is an appeal that is made more than 12 months after the original decision but within 24 months, because no appeal is ever possible after two years. As a result of the 2008 reforms in England and Wales, a late appeal is accepted by the First-tier Tribunal unless the Secretary of State objects. If the Secretary of State does object, the tribunal has the power to consider the matter and admit the appeal if it is fair and just to do so. However, the provisions of the 1943 Act still apply to those tribunals in Scotland and Northern Ireland. Until recently, these provisions did not allow tribunals in those jurisdictions to treat late appeals with such flexibility, as they could do so only in specific circumstances set out in regulations.

The Lord Chancellor established a War Pensions and Armed Forces Compensation Advisory Steering Group to pursue consistency in the procedure for appeals across the United Kingdom. It concluded that existing late appeal processes may possibly disadvantage appellants in Scotland and Northern Ireland. The request to make these amendments came from the presidents of tribunals in Scotland and Northern Ireland. The devolved Administrations have been consulted on, and have approved, the draft regulations.

In 2021, amendments to the 1943 Act were made. They allow us to align the rules under which late appeals are accepted in Scotland and Northern Ireland with the current rules in England and Wales. These draft regulations seek to amend the 2001 regulations to remove this anomaly and align the rules on late appeals across the whole of the United Kingdom. I beg to move.

[Lord Jones (Lab)]

My Lords, I thank the Minister for her incisive and always-informed remarks.

At paragraph 7.3 of the Explanatory Memorandum, the word “consistent” is used. A consistent approach is to be welcomed. However, can the Minister tell us about the ASG—that is, the advisory steering group? Who heads it? It looks very formal. It is advisory but shall its members be paid? Do we know what amount the group’s members receive? Are there any names of which the Committee might be informed? We need information regarding the names concerning the representative ex-service and service communities. One does not want the high and mighty of law and government ministries leaning heavily on the humbler members of the ASG. If the MoD is involved, rank will be a consideration. The judiciary also carries weight. On membership, does everyone have an equal voice?

At paragraph 7.2, we learn of appeals. Might the Minister flesh this point out by instancing an appeal case? What might it entail?

On paragraph 7.4, how many appeals were heard in 2021 and, if it is possible for the Minister to say, 2022? Again, I thank the Minister for her remarks.

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[Baroness Goldie (Con)]

My Lords, predictably, although this may be a somewhat technical and relatively short debate, your Lordships have advanced questions, some of which I may not be able to answer; I may have to offer to write.

I will deal first with the points raised by the noble Lord, Lord Jones. I do not have before me specific information about the compensation advisory steering group—members, who leads it, whether they are paid or whether there are ex-service representatives—but I can undertake to find out that detail. I am just glancing at my officials and, reassuringly, their faces are as blank as mine. If the noble Lord will be patient with me, we shall find out that information and I shall write to him.

[Lord Jones (Lab)]

I am grateful for the Minister’s remarks. I admire the way she does her business. I simply want to say that I rise often in this Committee as a point of principle, rather than to ask questions that may or may not be answered by the given Minister. Having been a Minister in three Administrations in another place, one’s sympathy is always with a Minister seeking to answer.

The main thing that comes to my mind is that so often in this Committee there are orders and regulations that really should be on the Floor of the House. Important regulations and orders are often so badly attended. They can go through without any consideration as to how they affect the citizenry. I thank the Minister.

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[Baroness Goldie (Con)]

I applaud the noble Lord’s persistence and tenacity, because that is entirely reflective of what good scrutiny should be. I came here thinking I had everything I needed, but the noble Lord has disproved my theory. The noble Baroness, Lady Smith, asked similar questions so I undertake to include all noble Lords in my response.

The noble Lord, Lord Jones, also asked whether I had an example of a case of the type of appeal. I do not, but I presume that could be obtained without too much difficulty. I undertake to investigate that.

On the numbers of appeals, I offer a little more in the way of a glimmer of hope. I have been given information that in 2021 in Scotland, 11 late appeals were received. These would have been received under the less favourable regime that this statutory instrument is seeking to correct. Of these 11 late appeals, nine were admitted and two were refused. I think the two were refused because the upper limit of two years had been extinguished, so I think we can accept that that was a bona fide and understandable reason for declining to meet the appeal. In 2022, nine late appeals were received in Scotland. Seven were admitted and two were refused. In one appeal the upper limit of two years had been extinguished. The other appeal was refused because not only was it late but it had already been adjudicated at a previous tribunal hearing. I think that reassures your Lordships that there is a process that has been robust.

In Northern Ireland in 2021, two late appeals were received and both were admitted. In 2022, two late appeals were received; two were admitted and none was refused. I hope that reassures your Lordships that there has been a working system and that the intrinsic components of the system are operating. But as I said from my speaking notes, there was a sense that this may lead to some disadvantage for appellants in Scotland and Northern Ireland, hence the desire, recognised by your Lordships, to achieve pan-UK consistency on the issue.

I think it was the noble Baroness, Lady Smith, who asked about other people who may have been disserved by the previous arrangement, and that was echoed by the noble Lord, Lord Tunnicliffe. All I can say is that I do not know, but these figures, which are from the previous regime, suggest to me that a very fair regard has been had to the appeals. I do not see evidence of any manifest unfairness or unreasonable determination of the appeal.

The noble Baroness, Lady Smith, said that we are doing a bit of tidying up. That is correct. Does more legislation need to be brought forward to address any other outstanding issues? I am not aware of it. As the noble Baroness herself observed, delegated legislation for the Ministry of Defence is relatively unusual and fairly sparse. As I think your Lordships will understand, this is intrinsically a very technical issue, and it was the tribunal presidents who pushed to make the change because they had both the experience and the technical knowledge, and I think they realised that there was a better way of dealing with this. The acquiescence of the devolved Administrations endorses that approach. I am not aware of any accumulation of material that needs to be addressed.

The noble Lord, Lord Tunnicliffe, asked about the length of time to address this. I do not have a specific answer; from the circumstances I can infer only that when the changes were made in England and Wales, nobody thought at the English and Welsh end that anything needed to be done in Northern Ireland and Scotland. Interestingly, it is pretty clear that nobody at the Scottish and Northern Ireland end thought that anything needed to be done. It has been a classic example of the system working and keeping going, and only on further consideration by the presidents of the tribunals in Scotland and Northern Ireland was there a realisation: “Wait a minute, this is maybe not the best we can do for these two countries, and we ought to change it”.

The noble Lord, Lord Tunnicliffe, asked about the criteria that the Secretary of State has to observe when determining an application. He will be aware that the role of a Minister of the Crown in determining these matters is quasi-judicial, and I imagine that the Secretary of State is encompassed by legal advice to make sure that they are not in danger of doing anything that would be patently unfair or unjust to the applicant. There will no doubt be advice, based on the circumstances of the applicant, as to whether a case is deserving and should be granted. Of course, the safeguard is that if the applicant is dissatisfied with the Secretary of State’s determination, there is now this more flexible method of appeal available to the applicant.

The final question from the noble Lord, Lord Tunnicliffe, was basically: is this change more favourable to appellants? The answer is yes. As I said and the noble Baroness, Lady Smith, identified, it is just possible that there may have been appeals determined in Scotland and Northern Ireland under the old, more rigid rules, which had been abandoned by England and Wales, and that under those more rigid rules something was deemed not grantable on appeal, but I do not know. I think it would be an impossible question to answer, but it is obvious from the numbers I have cited that we are dealing with a fairly small cohort of cases here.

With the exception of the compensation advisory steering group, on which I will write to all three noble Lords who contributed to the debate, I hope I have managed to answer all the questions. I commend this instrument to the Committee.

Motion agreed.