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Parliamentary Commissioner for Administration

First Report Session 1998-99

Volume 3 - 1st Report - Session 1998-99

DEPARTMENT OF SOCIAL SECURITY

Case No. C.791/95

Refusal to backdate payments of war disablement pension

7.1. Mr K complained that the War Pensions Agency (WPA) of the Department of Social Security (DSS) had refused to backdate payments of his war disablement pension (WDP) to the date when he first made a claim.

7.2. The investigation began in November 1995 once the Parliamentary Commissioner's predecessor had obtained comments from the Permanent Secretary of DSS after the Member's referral of the complaint. I have not put into this report every detail investigated by the Parliamentary Commissioner's staff; but I am satisfied that no matter of significance has been overlooked. The events covered by the complaint span many years, during which the title of the body responsible for WDPs changed several times, but for ease of reference I refer to that body as WPA throughout this report. An annex to this report gives the abbreviations used in it and their meaning.

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Background

7.3. A WDP is payable under certain circumstances to people who have served in the armed forces, whose military service has come to an end, and who have suffered disablement due to an injury or disease which is attributable to that service (normally at any time after 2 September 1939) or, if it existed before the service began, was and remains aggravated by that service. The award depends on the severity of the disability, which is assessed on a percentage basis. For disabilities assessed at less than 20% a one-off lump sum is payable; for those assessed at 20% or more a weekly pension is payable.

7.4 Until 1983 payments of a WDP could not be backdated further than the date of the successful application or appeal to the Pensions Appeal Tribunal (PAT), unless the Secretary of State for Social Security (SofS) directed otherwise in any particular case. It was the SofS's practice to exercise that discretion exceptionally, and normally to do so only where there was evidence that the claimant had been prevented by incapacity from acting earlier, or had been misdirected. Successive Commissioners have generally regarded that practice as reasonable. From 1983 The Naval, Military, and Air Forces Etc. (Disablement and Death) Service Pensions Order 1983 has provided that arrears can be backdated for up to 6 years prior to the date of an application to a PAT, the SofS retaining discretion to direct further backdating in any particular case.

7.5 WPA tell claimants that, if they are dissatisfied with a decision on their claim, they can ask for help from a local War Pensions Committee (WPC) which is independent of WPA. Although WPCs do not have any power to change decisions made by WPA they can ask WPA to review a case.

7.6 The Commissioner may not question the merits of a discretionary decision taken without maladministration.

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Investigation

1946—1955

7.7. Prior to his enrolment in the Royal Navy Mr K was medically examined in November 1946, and the medical board confirmed that his ears and hearing were normal. I have seen no evidence that Mr K experienced any problems with his hearing between the date of that examination and 1950, when he was serving on a Royal Naval vessel. Mr K has said that when that vessel was in foreign waters he was caught in an exposed position on a gun mounting platform during gunnery practice, and was exposed to the sound of gunfire at very close range. (Although there is no official evidence to confirm that, Mr K's account of the incident has generally been accepted by the relevant authorities from the outset.) By his account Mr K experienced an immediate loss of hearing, and felt quite shocked. After the gunnery practice he reported to the sick bay where he was told that his deafness would wear off. His hearing showed some improvement after 24 hours, but thereafter no change occurred for better or worse. Throughout 1952 and 1953 Mr K was treated for various ear complaints (including abscesses and deafness). In May 1953 an ear, nose and throat (ENT) specialist concluded that Mr K was suffering from severe bilateral conductive deafness, the cause of which the specialist said was obscure.

7.8. At a medical examination in September 1953 (arranged before Mr K's release from service in October 1953) a Royal Navy medical board determined that he had bilateral conductive deafness (probably otosclerosis), and again recorded that its cause was obscure. Mr K told the board that he had first noticed the deafness three years previously at the time of the incident on board the Royal Naval vessel. The officer completing the medical board's record wrote that he '[did] not think that the alleged incident on the Royal Naval vessel had anything to do with the deafness'. In October another independent specialist examined Mr K and also diagnosed him as suffering from conductive deafness. The specialist found no evidence of acoustic trauma, and concluded that Mr K was probably suffering from otosclerosis. In November Mr K appealed against that decision, with the support of the Royal British Legion. According to an undated medical report prepared at around that time at the request of the Royal British Legion, the examining doctor found a 'sudden dip in the bone-conduction audiograph' which he described as characteristic of acoustic trauma. He submitted that it was highly probable that such acoustic trauma had been superimposed on the otosclerosis 'assuming that the conductive deafness is due to this disease'. As to the latter, however, he went on to say that some factors did not support the diagnosis of otosclerosis (absence of family history; absence of tinnitus; presence of wax in the ears; and the absence of flamingo-red appearance of the eardrums). He said that the source of the deafness could only be proved histologically by examining the bone surrounding the inner ear. WPA sought further advice from their medical advisers who said that they would probably require an examination by an independent ENT specialist to resolve the inconsistency. Mr K was then examined in June 1954 by another ENT specialist, who reported that a firm diagnosis was impossible and that 'only a microscopic examination of the otic capsule would clinch the diagnosis'. The ENT specialist concluded that it was 'almost certainly otosclerosis with secondary involvement of the cochlea'. Mr K's appeal was heard in October 1954. The PAT found that the bilateral conductive deafness was not attributable to war service but accepted that it had been aggravated by it. They therefore allowed Mr K's appeal, and awarded him a WDP on the basis of a disability assessed at 6-14% (so that he was entitled to a lump sum pension—paragraph 7.3). Mr K then appealed against the level of that assessment. A further PAT heard that further appeal in May 1955 and upheld the decision of the first PAT.

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1958

7.9. In March 1958 Mr K had an operation in connection with his hearing difficulty. Although the operation was initially successful, by October Mr K's hearing was reported to have deteriorated and to have returned to its previous condition.

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1985

7.10. On 15 April 1985 the then Member wrote to the then Minister of State for Social Security asking whether Mr K's case might be re-opened. The then Parliamentary Under Secretary of State (PUSS) for Social Security replied on 15 May saying that Mr K's assessment could be increased if WPA doctors certified that there had been substantial and permanent worsening of his condition since the PAT's decision. She said that WPA were seeking up-to-date medical evidence and that Mr K might be required to attend a medical board. WPA obtained hospital case notes, a report from Mr K's doctor, and DSS's records of Mr K's history of sickness from 1950 onwards but did not arrange a further medical board. They wrote to Mr K on 18 July saying that the findings of the PAT in 1955 were final and legally binding but that WPA could, exceptionally, reconsider that assessment if their doctors could certify that there had been a permanent and substantial worsening by service of the disablement since the 1955 decision. They said that their doctors considered that any worsening of Mr K's bilateral conductive deafness would have been due to the natural progress of the condition and not connected with his service. In the circumstances, they said, it was not possible to authorise a further award. Mr K wrote to WPA on 1 September saying he wanted to appeal against their decision, and asking how to go about that. On 17 September WPA replied saying that the PAT decision was legally binding on both himself and the department and that there was no further right of appeal against the tribunal's decision or following a review of a final assessment.

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1990

7.11. At Mr K's request a war pensions welfare officer visited him in September 1990. Mr K told the officer that he wished to reclaim a WDP for his loss of hearing. The welfare officer told Mr K that the PAT decision could not be changed unless fresh and cogent medical evidence was available. The welfare officer noted that the basis of disagreement between Mr K and WPA was the cause of his deafness: the WPA decision, upheld by the PAT, was that conductive deafness had been caused by otosclerosis, a congenital and progressive condition, and that acoustic trauma had only temporarily aggravated it. Mr K told the officer that he had attended hospital in the late 1950s and early 1960s, and had had three operations to scrape the bones of his ears. He did not know whether any bone growth had been found but his hearing had not improved. The welfare officer suggested that Mr K should try to establish whether any sign of otosclerosis had been found, and said that if none had been detected that might be sufficiently cogent evidence to allow the PAT to set aside its original decision and reconsider the case.

1992

7.12. On 14 September 1992 Mr K's doctor referred him to a specialist ENT consultant (whom I refer to as consultant M). On 4 December consultant M wrote to Mr K's doctor saying that his examination had identified symptoms consistent with ossicular discontinuity which he found consonant with Mr K's account of having been exposed to gunfire. Consultant M said that his condition had probably been misdiagnosed at the time as otosclerosis. Consultant M advised Mr K to apply to DSS for a review of his case in the hope that he could get a WDP to compensate him for his loss of hearing. He concluded that he could not be 100 per cent certain of the diagnosis without surgery, but that an operation would not be justified; he said however that he agreed Mr K had been wronged.

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1993

7.13. On 6 January 1993 Mr K made another claim to WPA for a WDP, on the strength of consultant M's report. WPA's medical advisers agreed that the consultant's report provided new evidence which justified a joint application to the PAT by Mr K and WPA to have the PAT's decision of 1954 set aside. On 6 April WPA wrote to Mr K saying that the PAT's decision was final and conclusive subject to an appeal to the High Court on a point of law or 'a joint application to the President of the PAT for the decision to be set aside in those rare cases where ... additional evidence has become available which is so strong that the Department is able to agree with the appellant to the making of such an application'. WPA said that there had been a change in the medical view about factors that could cause bilateral conductive deafness, and that there was a possibility that the Tribunal would come to a different decision if they were to consider the appeal afresh. A joint application was then made to the PAT, who on 12 May approved the request to have the original PAT decision set aside. On 21 July WPA wrote to Mr K saying they accepted that he suffered from bilateral ossicular discontinuity which had been caused by his military service. Their interim assessment was that he was 70 per cent disabled as a result, so that he qualified for a weekly WDP (paragraph 7.3), and they agreed to pay arrears backdated to 5 January 1987 (six years prior to Mr K's claim—paragraph 7.4).

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7.14. Mr K continued to press for his award to be backdated to the date of his original claim in 1953. On 10 May 1994 the local WPC (paragraph 7.5) considered Mr K's complaint. Mr K told them that he had not approached WPA earlier than 1992 because he had been told repeatedly by specialists that his disability was not service-related. He accepted that they were experts, and he knew that their opinions carried more weight than his own. He added that it was only by chance, when attending hospital for attention to his hearing aid, that he was introduced to the consultant who had correctly diagnosed the cause of his deafness. That had eventually led to his WPA award. The WPC recommended that, as WPA had accepted the later diagnosis that Mr K's injury was attributable to his service, the SofS should exceptionally backdate the award to the date of the original claim. On 25 October WPA wrote to the WPC and Mr K rejecting the WPC's recommendation. WPA said that the original decision had been based on the contemporaneous opinion of consultants who were independent specialists, and concluded that the decision had therefore been correct at the time. WPA said that it was only because the later evidence had raised a reasonable doubt about that matter that WPA's medical advisers had certified that the condition had been due to service. Finally they said that the medical evidence on which the later award had been based was that obtained in 1992, so that it provided a true picture of his hearing loss only from that point.

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DSS's response to the complaint

7.15. In her comments to the then Parliamentary Commissioner in November 1995 the Permanent Secretary said that the question of backdating Mr K's award to 1953 had been given full consideration by WPA. The original decision in 1953 had been taken with full consideration of all the evidence at the time. All the available evidence had been identified, obtained and fully considered by WPA's medical advisers. That evidence had also been presented in full to the PAT, and their decision had been made on the basis of that evidence. The total degree of disablement at that time had been assessed at 6-14% and a WDP appropriate to that degree of disablement had been awarded. WPA's response to the request for a review in 1985 was considered to have been correct at the time. There had been no indication from the evidence obtained, which included hospital case notes detailing treatment up to 1982, that there was any reason to doubt the correctness of the earlier decision which had been confirmed by the PAT. It was not until January 1993 that Mr K had made WPA aware that there were grounds for reconsidering the earlier decision. The Permanent Secretary said that the commencing date for an award, following a successful request to set aside an earlier decision of a PAT, was six years before the date of the application to the PAT; in Mr K's case that would have led to an award from 30 April 1987. However, WPA had decided to use the SofS's discretion to award Mr K a WDP from 5 January 1987 (six years before the date on which he had first notified WPA of the fresh evidence which had led to his successful application).

Findings

7.16. Until the PAT decision of 1955 had been set aside, WPA were not able to consider awarding a further WDP to Mr K as the original medical opinion (that he was suffering from bilateral conductive deafness which had been aggravated by war service) was binding on both WPA and Mr K. It was only after that decision was set aside in May 1993, and a further WDP was awarded, that the question of any backdating arose. Since 1983 WPA have been able to backdate a WDP award for six years (paragraph 7.5), and the SofS has discretion to direct further backdating in any particular case. That discretion has already been exercised to a limited extent in this case (paragraph 7.7 and 7.8) but Mr K remained dissatisfied with that decision.

7.17. In considering Mr K's complaint I look first at the events between 1953 and 1955. It is clear from the evidence I have seen (paragraph 7.7) that official deliberation on Mr K's case at that time was informed by a wide range of medical opinions, including those of four independent specialists. I note also that the matter of diagnosis was regarded as complex and difficult and that, although one specialist opined that Mr K's symptoms appeared consistent with acoustic trauma (paragraph 7.8), that was a minority view and even the specialist concerned accepted that the diagnosis was not clear cut. In the circumstances I find no evidence of maladministration in the way Mr K's case was handled between 1953 and 1955.

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7.18. I next consider the opportunities WPA had to reconsider the matter. When Mr K took up his case with the then Member in 1985 the then PUSS indicated (paragraph 7.9 and 7.10) that Mr K's assessment could be increased if WPA doctors certified that there had been a substantial and permanent worsening of his condition. She said WPA were seeking up-to-date evidence, and that Mr K might have to attend a medical board. In the event, however, no such board was held, and no attempt was made to arrange a fresh medical examination or otherwise seek contemporaneous medical evidence. Instead, WPA relied entirely on evidence from Mr K's case notes, and wrote to him (paragraph 7.10) saying that the PAT decision of 1955 could exceptionally be reconsidered only if doctors could certify that there had been a permanent and substantial worsening by service of his disablement, and that WPA's doctors considered that any worsening in his case would have been due to the natural progress of his condition. That response was in my view inadequate and deficient in a number of respects. In saying that worsening would have to have resulted from service, it clearly implied that the criteria could not apply to Mr K since he had left military service before the relevant period; it made no mention of the possibility that the PAT decision could be reviewed if fresh evidence about the cause of deafness were to come to light; and it contained no suggestion that a contemporaneous medical examination might be considered. Worse, when in September 1985 Mr K asked for guidance on how he might challenge that decision he was given an unequivocal reply that there was no further avenue open to him (paragraph 7.10). That letter, like the one sent in July, failed to tell him that, should he produce further medical evidence to support his claim, WPA might consider the matter afresh, and contemplate an application to have the original decision set aside. I criticise the inadequacy of those letters, which effectively denied Mr K the opportunity to have his case reviewed at that point and understandably led him to conclude that the medical evidence was conclusively weighed against him.

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7.19. In the light of those findings I invited WPA to look again at the possibility of further backdating Mr K's latest WDP award, but the then acting Chief Executive concluded initially that WPA's actions at the relevant time had not led to any unremedied injustice for Mr K. In reaching a final view on that issue, it seemed to me important to establish whether, had Mr K had the benefit of a contemporaneous medical examination in 1985, it was likely that the correct cause of his deafness could have been diagnosed at that time. The Commissioner's staff accordingly sought the views of consultant M on that. In reply consultant M said that the techniques he had used in his diagnosis in 1992 (paragraph 7.12) would probably have been available in most major audiology departments in 1985. The Commissioner's staff put that further advice to WPA, and in response a director of WPA agreed that WPA could have done more in 1985 to advise Mr K that there was a process by which he could challenge the PAT entitlement decision. As it was they had not explained the position fully until the welfare officer visit in 1990 (paragraph 7.11 ). In all the circumstances the director agreed to backdate Mr K's award to 15 April 1985 (the date of the former Member's letter asking whether Mr K's case might be re-opened—paragraph 7.10) and to make a further ex gratia payment to compensate Mr K for loss of use of the arrears that were thus due. On 30 April 1998 WPA paid Mr K arrears of £3,904.57 for the WDP due between 15 April 1985 and 4 January 1987, plus £762.20 to compensate him for the loss of use of that sum.

7.20. I very much welcome WPA's agreement to backdate Mr K's arrears to 1985; but, for completeness, the Commissioner's staff asked DSS whether there was any scope for further backdating, under the provisions of The Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 1983 (paragraph 7.4). In response the Agency said that the original award had, in the light of those provisions, been backdated six years before Mr K's claim for a WDP in 1993 which had led to his successful appeal to the PAT. That was the maximum allowed by law, and the decision to allow any further backdating was discretionary. WPA said that they had since accepted that they could have done more for Mr K in 1985—hence their agreement to backdate his arrears further to 15 April 1985 (paragraph 7.19). Whether, had his case been handled differently in 1985, Mr K would, in consequence, have appealed to a PAT, or when, was a matter for speculation. In the circumstances, WPA said, they felt that the backdating which had already been agreed represented the most beneficial and appropriate resolution to Mr K's case. Given those points, and the fact that—after the rejection of his intial claim and appeals—Mr K himself had not raised the matter of his possible entitlement to a WDP again until 1985, I found no fault with the way in which WPA had exercised the discretion not to backdate Mr K's arrears any further, and concluded therefore that that was not a decision the Commissioner could question (paragraph 7.6).

Conclusion

7.21. I found no maladministration in the way Mr K's WDP claim was dealt with between 1953 and 1955, but concluded that WPA had dealt with his case less well than they should in 1985. WPA subsequently agreed to backdate Mr K's WDP award to April 1985 and have paid arrears of £3,904.57, plus an ex gratia payment of £762.20 to compensate Mr K for the loss of use of that sum. I regard that as a suitable outcome to a partly justified complaint.

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17 June 1998

Annex

Abbreviations used and their meaning

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Short text of this investigation

Last updated: 26 April 2006