Foreword

This is the report of my investigation of a complaint brought by Mr A (who has subsequently died) on behalf of himself and four of his siblings about the Ministry of Defence and the Service Personnel & Veterans Agency. Mr A complained of unfair treatment by these bodies, in particular for wrongly rejecting his and his siblings’ applications to the ‘injury to feelings’ payment scheme.
This was a scheme designed to acknowledge the impact of the application, by the British government, of an unlawful criterion in the original ex gratia compensation scheme which they had devised to compensate British prisoners of war and British civilian internees held captive by the Japanese during the Second World War.

I have upheld his complaint. Mr A and his siblings were indeed treated unfairly, and subjected to prolonged and aggravated distress by the British Government in relation to these matters. In Mr A’s case, in the last years of his life. I have made recommendations for remedy, which the Ministry of Defence have accepted in full. That is commendable, but it does not excuse what has gone before.

This is the second time that I have investigated complaints about this scheme. In my first investigation, which led to the publication in July 2005 of my report, A Debt of Honour, I found injustice as a consequence of maladministration in the way the original ex gratia scheme was announced, devised and implemented. I made a number of recommendations for remedy, some of which the Ministry of Defence did not initially accept, but all of which were eventually complied with, following a report by the Public Administration Select Committee and a series of legal challenges.

When Mr A brought his complaint to me, I thought the indications of maladministration were so strong, and the consequent injustice so clear, that I should be able to persuade the Ministry of Defence to put things right without the need for a second investigation. I wrote to the then Permanent Under-Secretary, and my staff met with his officials to discuss the case, but the Ministry of Defence maintained their position. They continued to defend the indefensible and made a second investigation inevitable. If they had not done so, the matter might have been resolved before Mr A died.

I am laying this report before Parliament for two reasons: first because of its connection with my earlier report; but primarily because it is the worst example I have seen, in nearly nine years as Parliamentary Ombudsman, of a government department getting things wrong and then repeatedly failing to put things right or learn
from their mistakes.

The Permanent Under-Secretary of State for Defence has assured me that she will look carefully at how best to embed the lessons from my report into the Ministry of Defence’s internal processes and will review the implications of my report for the Ministry of Defence more generally. I will be interested to hear the outcome of that review. At the same time, there is learning here for government which goes well beyond the Ministry of Defence. This report should be required reading for every aspiring senior civil servant.

I am putting this report into the public domain in the hope that something positive will come out of this disgraceful story. The British Government should hang its head in shame at the way it treated Mr A and his siblings – say sorry – and then set about ensuring that nothing like this ever happens again.

British enough to be interned

Mr A was born in 1937 in Negeri Sembilan, Malaya, which was then a British protectorate. To understand his story we need to understand the events which led up to it. They begin with the attack on Pearl Harbour by the Japanese on 7 December 1941.

The attack on Pearl Harbour triggered the entry of the United States into the Second World War. It also presaged an attack by the Japanese Empire on the territories in Southeast Asia which at that time were colonies, protected states, protectorates or mandated territories of the UK, and of other western Allied nations. The British and Allied forces were roundly defeated. Singapore – the most important British military base east of Suez – surrendered to the invading Japanese forces on
15 February 1942. In his memoirs Winston Churchill described this surrender as the ‘worst disaster’
in British history.

Approximately 80,000 British, Australian and Indian troops became prisoners of war when Singapore fell, joining the 50,000 who had been taken prisoner during the fighting that had taken place since the Japanese invaded what was then Malaya on 8 December 1941.

The fall of Singapore – and the successful invasion and capture of other colonies of the UK and other western Allied nations – also had a terrifying impact on the local civilian population. It is estimated that over 130,000 Allied civilians were interned by the Japanese, between 15,000 and 20,000 of whom were British. Mr A and his
family were amongst them.

British civilians were interned in specially designated camps controlled by the Japanese forces. Mr A and his family were taken to Singapore’s Sime Road internment camp in March 1945. He was 8 years old at the time. They were liberated in September 1945, returned to Malaysia after the war and subsequently emigrated to Australia.

It is a matter of record that the treatment by the Japanese of Allied civilian internees and military prisoners of war was horrific. They were Allied nationals and thus deemed to be enemies of the Japanese Empire.

The ex gratia compensation scheme – a ‘debt of honour’

In 2000 the British Government decided to establish an ex gratia compensation scheme to make payments to surviving members of British groups interned by the Japanese. This followed a lengthy campaign by surviving internees for an official apology from Japan for the inhuman treatment that they had endured and for compensation to be paid by the Japanese Government in recognition of that treatment.

The scheme was announced by the then Parliamentary Under-Secretary of State for Defence, Dr Lewis Moonie (now Lord Moonie of Bennochy) in a Statement to the House of Commons on 7 November 2000. It provided for payments of £10,000 to be made to surviving members of British groups who were held prisoner by the Japanese during the Second World War, including ‘British civilians who were interned’, in recognition of the unique circumstances of their captivity.

Dr Moonie’s Statement included the following:

‘The Government recognises that many UK citizens, both those serving in the armed forces and civilians, have had to endure great hardship at different times and in different circumstances, but the experience of those
who went into captivity in the Far East during the Second World War was unique. We have said before that this country owes a debt of honour to them … today something concrete has been done to recognise that debt.’

So it was clear from the outset that this compensation scheme was intended to provide tangible recognition of the ‘debt of honour’ that the UK owed to British prisoners of war and civilian internees. These were people who had been held captive because of their British status and who had experienced great suffering and hardship. It was incumbent on those designing and operating the scheme to ‘get it right’. Sadly, for Mr A and for many other British civilian internees, they got
it very wrong indeed.

British enough to receive compensation?

Not surprisingly, having read the Government’s announcement about the scheme, Mr A and his siblings thought they met the eligibility criteria and duly applied. However, they were all refused payment on the basis of what was described as the ‘bloodlink criterion’ – a test of the closeness of people’s connection to the UK. This test had not been mentioned in the Minister’s Statement in November 2000 and was introduced much later, many months into the operation of the scheme.

Following my first investigation the Ministry of Defence apologised and paid £500 compensation for the distress caused to those civilian internees who discovered long after the scheme had been announced, when the ‘bloodlink criterion’ was applied, that they were ‘British enough’ to have been interned, but not ‘British enough’ to qualify for payment. Mr A and his siblings received that apology and that compensation payment.

But that was not the end of the matter. As a result of a legal challenge, the ‘bloodlink criterion’ was found to be unlawful – it indirectly discriminated against applicants on grounds of national origin. So the Ministry of Defence had to redesign the original compensation scheme to make it lawful. They also decided – rather than face a series of individual legal claims – that they should design a further scheme to pay compensation for ‘injury to feelings’ resulting from their unlawful race discrimination.

The ‘injury to feelings’ compensation scheme

In January 2007 the Minister announced a further ex gratia compensation scheme, the ‘injury to feelings scheme’, with payments of £4,000 to compensate people, like Mr A and his siblings, whose applications to the original scheme had been rejected unlawfully on grounds of national origin.

The Service Personnel & Veterans Agency invited Mr A and his siblings to apply – although they had already decided by then, in accordance with criteria that they had not announced, and contrary to what the Minister had actually decided, that their applications could not succeed. The Service Personnel & Veterans Agency then proceeded wrongly to reject their application – on grounds of national origin; and in doing so they told them, wrongly again, that the previous apology and compensation payment they had all received had been made in error. Even if the Service Personnel & Veterans Agency believed that to be true – which it wasn’t – that was an extraordinarily insensitive and offensive thing to do.

Mr A said that his prolonged correspondence with the Service Personnel & Veterans Agency between 2000 and 2007 had made him relive over and over again the terrible times he had spent at the Sime Road Internment Camp. He described his dealings with the Service Personnel & Veterans Agency as ‘not just mental anguish, but torture’. He said that he and his siblings felt that they were ‘being treated as outcasts’.

Mr A brought his complaint to me after the final letter of rejection by the Service Personnel & Veterans Agency in 2008.

My findings

Maladministration

I have made six findings of maladministration, which are set out in full in paragraphs 162 to 168
of the report:

• First, the basis on which the Ministry of Defence devised the injury to feelings scheme was maladministrative, being inconsistent with court judgments, as well as the Minister’s Statement announcing the scheme, and imposing a restriction on eligibility based on irrelevant considerations.
• Secondly, the design of the injury to feelings scheme was maladministrative, because it produced such unfair, inconsistent and
  even absurd outcomes.
• Thirdly, the actions of, and the literature distributed by, the Ministry of Defence following the Minister’s announcement of the injury to feelings scheme constituted maladministration, being unclear and unfair, and failing to inform potential applicants of the full eligibility criteria.
• Fourthly, that the invitation by the Service Personnel & Veterans Agency to Mr A and his siblings to claim under the injury to feelings scheme constituted maladministration, in that their expectations were raised on the basis of an incomplete statement of the scheme’s rules, made many months after the Service Personnel & Veterans Agency had already decided that Mr A and his siblings were not eligible on its view of the scheme’s rules.
• Fifthly, that the communication by the
  Service Personnel & Veterans Agency to Mr A and his siblings of its belief that the earlier apology payments had been made in error constituted maladministration, being incompatible with the true basis of those payments and constituting unnecessary action which could only reasonably have further,
  in Mr A’s words, ‘added insult to injury’.
• Finally, that the Ministry of Defence and the Service Personnel & Veterans Agency consistently failed to be customer focused in their decision making, announcements and correspondence. Not only did they lose sight of the original intentions of the scheme, they lost sight of the people it
  was intended to compensate.

Injustice

I have found that Mr A and his siblings suffered injustice resulting from maladministration in
two forms:

• First, by not receiving compensation for injury to feelings which they should have received; and
• Secondly, by being caused extreme outrage and distress by the way in which their claims were handled by the Ministry of Defence and the Service Personnel & Veterans Agency.

My recommendations

I have made the following recommendations for remedy, all of which have been accepted by the Ministry of Defence.

• The Ministry of Defence pay Mr A’s widow, and each of Mr A’s four siblings, the £4,000 injury to feelings payment to which they were entitled, together with interest from the date they were incorrectly denied this payment.
• The Ministry of Defence pay Mrs A on Mr A’s behalf, and each of Mr A’s four siblings, £5,000 in recognition of the outrage and distress they have suffered as a result of the Ministry of Defence and the Service Personnel & Veterans Agency’s maladministration.
• The Secretary of State for Defence writes a personal apology to Mr A’s widow and to each of his siblings, apologising for the shameful way that the Ministry of Defence and the Service Personnel & Veterans Agency have dealt with these matters, and for the impact of their maladministration on Mr A and his siblings; and outlining the Ministry of Defence’s plans to ensure that other individuals in the same situation will be compensated appropriately.
• The Ministry of Defence review all other applicants under the injury to feelings scheme and, where it identifies individuals who are in the same position as Mr A and his siblings, that they should also receive
  the £4,000 payment, with interest.

I also said that I considered it essential that the Ministry of Defence launch a review of the internal mechanisms in place which allowed senior civil servants to get things so wrong, for so long, with such a devastating impact on people who deserved so much better. The Permanent Under-Secretary of State for Defence has agreed to do that, and also to review the implications of this report for the Ministry of Defence more generally.

Conclusion

Lord Justice Mummery’s judgment in the Court of Appeal in October 2006, upholding the High Court’s finding of unlawful indirect race discrimination against the Ministry of Defence, included the following description of the Ministry of Defence’s handling of the original ex gratia compensation scheme.

‘An embarrassing administrative and legal muddle, personal pain, charges of incompetence, costly litigation and political apologies, accompanied by inquiries, investigations, reports, hearings and reviews. A cloud has been cast over what many people would agree was an honourable act of public benevolence.’

I think that is also an admirable description of the events that I have investigated – although, of course, that judgment preceded the redesign of the original scheme and the creation of the injury to feelings scheme. The ‘administrative and legal muddle’ just went on and on.

Despite findings of maladministration and injustice by the Ombudsman, criticism from the Public Administration Select Committee, findings of indirect race discrimination by the courts, and numerous internal reviews, the Ministry of Defence and the Service Personnel & Veterans Agency failed time and time again to ‘get it right’ or ‘put it right’. They repeated and compounded their errors and as a result they compounded the distress caused to Mr A and his siblings.

Those failings were unacceptable in any context. In the context of a compensation scheme intended to recognise the unique circumstances and exceptional suffering of British people held captive in the Far East during the Second World War – people to whom Britain owed a debt of honour – they were unforgivable.

The final words should go to Mr A’s family. Responding to the draft report, Mrs B, one of
Mr A’s sisters, wrote the following:

‘It is clear that the most honourable intent of the “debt of honour” compensation scheme, in certain circumstances, devolved into an administrative quagmire that, over many years, simply lost sight of its intention.’

That seems to me to sum it up precisely.

Ann Abraham

Parliamentary and Health Service Ombudsman

September 2011