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Sixth Report Session 1998-99

Volume 2
OCTOBER 1998 - MARCH 1999

The full report of selected cases

Summary of selected cases

DEPARTMENT OF SOCIAL SECURITY

Case No. C.1210/97

Delay by the War Pensions Agency in changing an assessment of disablement from a final to an interim one

12.1 Mr K complained that the War Pensions Agency (WPA), an executive agency of the Department of Social Security (DSS), took too long to change the basis of the assessment of the degree of his disability from a final to an interim one, as recommended by their medical advisers in 1978, and that as a consequence the assessment was increased later than it should have been, leading to a financial loss on his part.

12.2 My investigation into Mr K's complaint began in May 1998 once the Ombudsman had obtained comments from the then Acting Chief Executive of WPA, following the referral of the complaint by the Member. I have not put into this report every detail investigated by the Ombudsman's staff; but I am satisfied that no matter of significance has been overlooked. Annex A contains the comments of the then Acting Chief Executive of WPA on the complaint. A list of the abbreviations used in this report and their meanings is at Annex B.

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Background

12.3 The main war pension scheme applies to former members of the armed forces who have suffered disablement due to injury or disease (including mental injury or loss of mental capacity) which is attributable to their service or which has been, or remains, aggravated by it. The amount of war pension payable depends on the assessment of the degree of disablement, which is expressed in percentage terms by comparing the condition of the disabled person with that of a normal healthy person of the same age and sex. Payment for disablement which is assessed at less than 20 per cent (in assessment bands of 1-5, 6-14 and 15-19 per cent) takes the form of one-off gratuities. A continuing war disablement pension (WDP) is awarded for disablement assessed at 20 per cent or more. Claims are dealt with by WPA on the advice of medical officers (MOs). Article 65 of the Naval, Military and Air Forces Etc (Disablement and Death) Service Pension Order 1983 (the Order) provides that, except insofar as the Secretary of State for Social Security may direct, a WDP shall not be paid in respect of any period preceding the date of a claim. Article 9(2)(d) of the Order states that the degree of disablement shall be assessed on an interim basis unless the condition permits a final assessment of the extent, if any, of the disablement.

12.4 At various times during the period covered by the complaint WPA's functions were carried out by the War Pensions Central Office (then part of DSS), the War Pensions Directorate and War Pensions Branch of DSS, and by the Benefits Agency. For ease of reference I use WPA in this report to refer to those bodies.

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12.5 If a WDP is rejected on the grounds that the person's disablement is not due to or aggravated by service, he or she may appeal to a Pensions Appeal Tribunal (PAT). That is known as an entitlement appeal. A person may also appeal to a PAT if he or she disagrees with the assessment of the degree of disablement. That is known as an assessment appeal. An appeal must be lodged using the appropriate forms which the Secretary of State for Social Security must supply on request. Before an appeal is heard, WPA prepare a statement of case (SOC) containing the relevant facts and medical history and, in the case of an entitlement appeal, the reasons for the decision under appeal. The claimant must be sent a copy of the SOC and be given 28 days in which to submit comments on it. As soon as possible after receipt of the claimant's comments, or expiration of the 28 days, WPA send the SOC, any comments from the claimant, and any remarks they wish to make on the claimant's comments, to the Pensions Appeal Office for them to arrange a PAT hearing. The relevant legislation states: "An appellant may at any time before the hearing give notice to the Pension Appeal Office that he desires to withdraw his appeal, and thereupon the appeal shall be struck out."

12.6 It is not for the Ombudsman to comment on the decisions of PATs. The Ombudsman is generally debarred from investigating any action in respect of which an aggrieved person has or had a right of appeal to an appellate body such as a PAT. It is not for the Ombudsman to question the medical opinion of doctors. The Ombudsman cannot question the merits of discretionary decisions taken by or on behalf of the Secretary of State for Social Security (for example decisions on the backdating of pension claims) unless there was maladministration in the way those decisions were taken. I refer to such matters in this report only to place in context the administrative actions of WPA in their handling of Mr K's case.

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12.7 An allowance for lowered standard of occupation (ALSO) is payable to a disabled war pensioner whose disability permanently prevents him or her from following either the occupation he or she regularly followed before service, or any other suitable occupation of an equivalent financial standard. ALSO is based on a comparison of the earnings the pensioner could expect to receive had he or she still been employed in his or her pre-service occupation and the earnings of his or her present occupation, or the most remunerative occupation the disablement would permit. ALSO is reviewed at regular intervals unless the pensioner is over the state retirement age.

12.8 DSS have a non-statutory scheme under which compensation may be paid to those who have suffered unacceptable delay or who have been denied benefit as a result of DSS's errors. The scheme provides for compensation to be paid if two conditions are fulfilled: the delay must be directly due to a clear and unambiguous error by DSS; and the pensioner or his or her representative must have done everything that could reasonably have been expected of them to obtain the pension at the proper time. Any contributory negligence by the pensioner is taken into account. Claims to compensation were handled by DSS's special payments unit (SPU). From 1 September 1998 WPA took over responsibility for handling claims to compensation and special payments relating to their own cases.

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Investigation

12.9

1975

On 8 April Mr K was examined by a departmental medical board (DMB) who diagnosed him as having "paranoid schizophrenia". On 17 April Mr K was discharged from the Royal Marines (with whom he had served since 24 July 1956) because he was deemed to be "Permanently unfit for Naval service in consequence of (1) Paranoid personality, (2) Acute paranoid reaction." On 20 June Mr K was examined by a consultant otolaryngologist (CO) who diagnosed that he suffered from "Mixed Deafness". On 7 July WPA decided that a 1-5 per cent final disablement assessment was appropriate for Mr K's conditions which they recorded as: "1. Injury Left Ankle (sprain), 2. Injury Right Ankle (fracture Medial Malleolus), 3. Bilateral Sensorineural Deafness." WPA also decided that Mr K's psychosis and hypermetropia (an eye condition) were neither attributable to nor aggravated by his service. They refused a WDP. Mr K was informed of both decisions and was sent a gratuity of £325 (paragraph 12.3). He was also informed of his right of appeal. The letter sent to Mr K said that "we further consider that your disablement is sufficiently stable to permit a final settlement", and the formal notice of decision stated that "the Secretary of State for Social Services has made a final assessment". On 18 July Mr K's solicitors wrote to WPA saying that he wished to lodge an assessment appeal against their decision of 7 July (assessing his disablement at 1-5 per cent). They also asked for details of the evidence upon which WPA had relied in deciding that Mr K's psychosis and hypermetropia had not been attributable to or aggravated by service. WPA replied on 1 August saying that a WDP in respect of Mr K's psychosis had been rejected on the grounds that "it is a constitutional condition, and is not related either in onset or progress to service factors". They said that they had been satisfied that Mr K's hypermetropia had not been related to service as "it was a developmental condition of the eye, and evidence showed that neither injury to the eyes, nor drugs, could cause the condition". On 18 August Mr K wrote to WPA telling them of his intention to lodge an entitlement appeal against their rejection of his claim to an "attributable service pension". WPA sent Mr K an appeal form on 22 August. On 18 December WPA wrote to their medical branch in connection with Mr K's entitlement appeal asking whether his service could have contributed to his hypermetropia and psychosis. On 23 December the medical branch replied saying that Mr K's psychosis could be accepted as aggravated by service, thereby increasing his composite assessment to 15-19 per cent. The medical branch said that "rejection of Hypermetropia should be maintained." On 24 December WPA recorded 18 April as the effective date for accepting that Mr K's psychosis had been aggravated by service. They noted that appeal action was continuing in respect of hypermetropia.

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12.10

1976

On 15 January WPA wrote telling Mr K that his psychosis could be accepted as having been aggravated by service resulting in a composite final assessment of 15-19 per cent, of indeterminate duration, effective from 18 April 1975. They enclosed a cheque for £1,114 representing a gratuity of £1,439 (paragraph 12.3), less £325 in respect of the gratuity they had sent to him on 7 July 1975. They informed him that he had a right of appeal to a PAT. They said that details of that right, for which there was a time limit, were set out in an enclosed formal notice. The relevant part of that notice said: "There is a time limit for appealing of 12 months from the date of this notice. An appeal made after 12 months can only be accepted if the Tribunal accept that there was reasonable excuse for the delay. If you do make a late appeal and it is heard by the Tribunal it is important to note that the commencing date of my resultant award of pension will normally depend upon the date of your appeal." The letter to Mr K said that "this assessment is final", and the enclosed formal notice stated that "the Secretary of State for Social Services has made a final assessment". On 13 February WPA wrote asking Mr K whether he wished to withdraw his entitlement appeal since his psychosis had been accepted as having been aggravated by service. Mr K replied on 19 February indicating that he did wish to continue with his entitlement appeal. On 8 March Mr K wrote to WPA mentioning his financial difficulties and saying that because of his injuries he could not find employment. He asked for advice on whether he would be entitled to other benefits. On 26 March WPA wrote to their medical branch saying that Mr K had chosen to continue with his entitlement appeal. WPA asked the medical branch for advice on whether Mr K's psychosis could have been attributable to service (rather than aggravated by it). On 4 December a regional consultant (RC) in psychiatric medicine who had examined Mr K on 26 October reported his findings. The RC said that he considered Mr K to be "mentally well and stable", and he opined that the invaliding diagnosis of "paranoid personality" had been incorrect "though there is no doubt that he had an acute reaction. Such a condition, however, is not necessarily a manifestation of schizophrenia". On 31 December WPA wrote to their medical branch asking whether "psychosis" had been the correct diagnosis of Mr K's condition and whether it had been correctly accepted as having been aggravated by service.

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12.11

1977

On 5 January the medical branch replied to WPA saying that in view of the RC's report, "the diagnosis and also the entitlement will have to be changed to Psychoneurosis 1975 Attrib." They said that from the RC's report, there was no longer a "paranoid reactive state", and opined that the award that Mr K had already received had therefore been generous. On 3 February WPA wrote telling Mr K that following a review of his case they had amended the diagnosis from psychosis, aggravated by service, to psychoneurosis (1975) attributable to service. They said that the assessment of 15-19 per cent remained unchanged, and asked Mr K to complete an enclosed form if he wished to appeal against the level of the assessment. They said that his entitlement appeal in respect of hypermetropia was continuing. On 12 April Mr K wrote to WPA saying that he intended to appeal against the decision regarding psychoneurosis and the assessment of 15-19 per cent disability. On 5 May Mr K returned forms to WPA appealing against the final assessment of 15-19 per cent made on 15 January 1976 in respect of psychosis and the assessment of 15-19 per cent notified by WPA on 3 February 1977 in respect of psychoneurosis (1975). On 16 May WPA wrote to Mr K saying that his case had been reviewed in consultation with WPA's doctors, and WPA remained satisfied that his hypermetropia was not attributable to, and had not been aggravated by, service. They said that his entitlement appeal would be put before a PAT. On 16 August WPA wrote to their medical branch asking for advice on whether a blow to Mr K's eye during a boxing bout and frequent use of one eye as a rifleman could have had an aggravating effect on his hypermetropia. Medical branch replied on 18 August and, referring to an opthalmologist report, said that the use of one eye while shooting with a rifle would not have had an effect "on the underlying refractive defect." In October WPA wrote telling Mr K that he had been awarded ALSO at £7.60 per week from 18 April 1975, £8.72 per week from 19 November 1975, £10 per week from 17 November 1976 and £11.44 from 16 November 1977. On 22 December Mr K visited the War Pensions Welfare Service and complained about the length of time being taken to deal with his entitlement and assessment appeals.

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12.12

1978

On 4 January WPA wrote to Mr K about his entitlement and assessment appeals saying that his entitlement appeal had been forwarded to a PAT, but WPA's MOs required an up-to-date medical board report and X-rays of his right ankle in connection with his assessment appeal. WPA mentioned that the assessment appeal was against the finality of the assessment. Mr K replied on 10 January saying that he was not aware that he had appealed against the finality of any assessment. He said that he was appealing against the assessment of 1-5 per cent for injury to left and right ankle and his sensorineural deafness in both ears. He was also appealing against the assessment of 15-19 per cent for psychoneurosis (1975), backdated to 18 April 1975. He said that he had been advised that WPA's MOs had on record sufficient in-service and post-service medical records of examinations and X-rays, and sufficient consultant reports, to make a fair and just assessment of his injuries so as to arrive at a settlement of his case. On 28 February a PAT adjourned Mr K's appeal pending a report from an opthalmologist. On 5 May the opthalmologist reported that Mr K's hypermetropia had not been the result of any injury or abnormal use to which the eyes had been put, but had been developmental and the result of natural progression. On 26 June WPA's Medical Advisers (MAs) wrote a report called an opinion of medical division (OMD) for inclusion in the SOC. They said that on the basis of the DMB's report of 8 April 1975, the CO's report of 20 June 1975 and the RC's report of 4 December 1976, "we regard the composite assessment of 15-19 per cent indeterminate duration as being appropriate. We consider, however, that an interim assessment would be more appropriate and do not propose to defend finality." They also said that they did not regard Mr K's hypermetropia as being associated with service. A copy of the SOC was sent to Mr K on 17 July. On 13 September a PAT disallowed Mr K's entitlement appeal finding that his hypermetropia had not been attributable to or aggravated by service.

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12.13

1979

On 15 January 1979 WPA sent a form to the Secretariat to the PATs advising them that Mr K wished to withdraw his assessment appeal in respect of injury to left ankle; injury to right ankle; bilateral sensorineural deafness; and psychoneurosis (1975). (There is no other record of Mr K's request in WPA's papers.)

12.14

1981-1989

On 12 October 1981 Mr K wrote to WPA asking for an increase in ALSO backdated to October 1979. Among other things, Mr K said that on 21 May he had been seen by a hospital for "acute depression" and on the same day he had been admitted to a mental hospital. He said he had discharged himself two weeks later. He had only been able to work "on an average of 4 out of every 6 days" due to his depressive moods when he became aggressive or unable to concentrate. His wife had had to employ someone full time "who can be relied upon". On 23 November WPA noted their records to the effect that advice had been sought from their section dealing with pension entitlements as to whether the section wished to consider whether a deterioration had occurred in Mr K's health. The entitlement section replied saying that as Mr K "does not claim deterioration, we do not propose to review the assessment". On 22 February 1982 WPA wrote telling Mr K that his ALSO had been increased to £15.20 per week from 27 October 1980, to £17.70 per week from 26 November 1980 and to £19.32 per week from 25 November 1981. On 14 February 1984 WPA wrote telling Mr K that his ALSO was being reviewed and asking him to provide details of his employment since 12 October 1981. Mr K replied on 3 March that his wife was a sub-postmaster and that he assisted her part-time on a self-employed basis "when fit enough to be presentable to customers". On 17 January 1986 WPA wrote telling Mr K that his ALSO was being reviewed and asking him to provide details of his employment since 3 March 1984. Mr K replied on 30 January that he had been a partner with his wife in a grocery retail shop since 3 March 1984. He said: "Medical position during Oct, Nov, Dec 1985 and up to the present date I have been taking Melleril 10mg daily at night to get sleep before exhaustion at the time of alarm call 7 am. This condition is due to business worries and personal inefficiency." On 24 July 1989 Mr K sent WPA a completed claim form in respect of deterioration, saying that his condition had deteriorated and giving a number of reasons, including: long-term depression preventing normal work; long-term medication causing side effects; and unprovoked sudden outbursts of uncontrollable temper usually at home against members of his family. He said that he had spent time in hospital between 1982 and 1983 because of anxiety; he gave details of the war pension payments that he had already received, and he said that he was receiving £28 per week in ALSO. He enclosed a medical certificate for the period 7 July to 4 October 1989 which diagnosed "Bipolar Depression".

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12.15

1990-1991

On 17 January 1990 Mr K was examined by a War Pensions Medical Board (WPMB) and they recorded an assessment of 15-19 per cent for his accepted conditions: injury to left ankle, fracture to right ankle, bilateral sensorineural deafness and psychoneurosis. On 13 February WPA wrote to Mr K saying that they had reviewed all the evidence in his case and, although they believed that the assessment of 15-19 per cent indeterminate duration correctly represented the degree of his disablement, they considered that there should be a further review. They said that they had decided to cancel the "final assessment" part of the notice of 15 January 1976, and to place the assessment on an "interim basis" with effect from 24 July 1989. They said that the change would not affect the amount payable as Mr K had already received a gratuity for the assessment of 15-19 per cent indeterminate duration and no further amount could be paid while his disablement remained assessed at that level. They said that the interim nature of the assessment would enable them to conduct a further review in about four years time, before 31 January 1994. They also told Mr K of his right of appeal. On 20 March the Royal British Legion (RBL) wrote to WPA saying that Mr K wished to lodge an assessment appeal against the assessment of 15-19 per cent. WPA sent appeal forms to Mr K on 8 May. RBL returned Mr K's completed appeal forms to WPA on 6 June. On the forms Mr K wrote: "I maintain that the award made to me of 15-19% does not reflect the degree of disability I suffer from my conditions." On 15 May 1991 WPA wrote to a CO requesting a medical report on Mr K's bilateral sensorineural deafness. The CO replied on 23 October, having examined Mr K on 17 October. He said that the prognosis was for a slow deterioration in Mr K's hearing as he aged and no treatment, other than advice about ear protection, was required. On 13 November Mr K was examined by the WPMB. They assessed his conditions as follows: injury to left ankle, a nil assessment; injury to right ankle, a nil assessment; bilateral sensorineural deafness, an assessment of 1-5 per cent, and psychoneurosis, an assessment of 6-14 per cent. The WPMB made a composite assessment of 15-19 per cent. Under the heading "diagnosis", they entered: "affective disorder."

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12.16

1992

On 9 January the MAs stated that Mr K's composite assessment should now be 30 per cent "for the whole period under appeal". They stated that the assessment for bilateral sensorineural deafness had increased to 6-14 per cent and the assessment for psychoneurosis to 20 per cent. On 23 March WPA wrote to RBL saying that arrangements were being made to implement the increased composite assessment as soon as possible, and that no arrangements had been made for further examination regarding Mr K's psychoneurosis. On 27 March WPA wrote to the Secretariat to the PATs saying that they were not proceeding with Mr K's assessment appeal as they had increased the assessment of his disablement to 30 per cent for the whole period under appeal, which they said was 24 July 1989 to 31 January 1994. On 2 April WPA wrote to Mr K saying that they had increased the assessment of his disablement to 30 per cent from 24 July 1989 and that that award disposed of his assessment appeal. They said that his WDP would be £21.51 per week for the period 24 July 1989 to 10 April 1990; £23.13 per week for the period 11 April 1990 to 9 April 1991; £25.62 per week for the period 10 April 1991 to 7 April 1992; and £26.90 per week for the period 8 April 1992 to 31 January 1994. They said that the assessment was an interim one and that they would write again before 31 January 1994. They informed Mr K of his right to appeal. On 22 April the then Chief Executive of the Benefits Agency wrote to the then Member in response to a letter of 2 April from the then Member about Mr K's concern that his psychoneurosis had not been reviewed for 17 years. (The letter of 2 April is not in WPA's files.) The then Chief Executive said that Mr K's "psychosis" had been accepted in January 1976 as attributable to service, and that the overall degree of his disablement had at that time been increased to 15-19 per cent. He said that Mr K had been informed that the award had been final, which meant that his condition had not been expected to change; he had also been informed of his right of appeal. The then Chief Executive said: "It was therefore up to him to contact the Department and exercise his right of appeal." The then Chief Executive went on to say that following Mr K's claim that his condition had deteriorated and his examination by the WPMB in January 1990, their doctors had advised that his final assessment, notified in January 1976, should be placed on an interim basis from 1989. Further to the fresh evidence provided by the WPMB in their report of November 1991, the MAs had advised that Mr K's composite assessment should be increased to 30 per cent from 27 July 1989.

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12.17 On 13 July RBL wrote to WPA saying that Mr K wished to appeal against the assessment of 30 per cent. WPA sent appeal forms to Mr K on 16 August. On 17 September RBL returned Mr K's completed appeal forms. Under the heading: "Why do you think the assessment you are appealing against is wrong?", Mr K said that he had not been assessed or examined by DSS for his psychoneurosis and therefore the decision taken by WPA "is not complete or accurate, and is detrimental to my case." On 10 December a consultant psychiatrist wrote to WPA providing a brief history of her dealings with Mr K. She said that he had first come to her attention in May 1981. The consultant psychiatrist said that over the years Mr K had been known to "our service." He had had mood swings, "now largely controlled by Lithium and Melleril but there is always a paranoid element". She said that there had been no evidence of any psychiatric illness in Mr K's notes prior to 1972, and his emotional conflicts had first been documented in a report of 24 April 1972, "with the latest report discussing an escalation into frank illness." In her opinion "Mr K's illness was certainly precipitated by emotional conflict arising in his military service, during the last twenty years he has been subjected to periodic exacerbations particularly when under stress."

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12.18

1993

On 17 February WPA wrote to the Secretariat to the PATs saying that Mr K had lodged an assessment appeal against the assessment of 30 per cent for the period 24 July 1989 to 31 January 1994, and that he wished to lodge an out-of-time assessment appeal against the assessment of 15-19 per cent for the period 18 April 1975 to 23 July 1989. They asked whether the President of the PAT wished to raise any objections. The Secretariat replied on 23 February saying that the President had no objection to Mr K lodging an out-of-time assessment appeal. On 5 April WPA noted on their records that Mr K had said the following when asked why he had not appealed before the time limit had run out: "The process took so long that I lost heart and my illness psychosis prevented me from continuing the paper work involved in the appeal." On 19 April WPA wrote to Mr K saying that on return of completed appeal forms his appeal against the final assessment of 15-19 per cent commencing on 18 April 1975 and the interim assessment of 30 per cent for the period 24 July 1989 to 31 January 1994 would be placed before a PAT.

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12.19

1994

On 27 January a PAT heard Mr K's appeals against the assessments. The PAT decided that the assessment of 15-19 per cent should be increased to 70 per cent. They included in the reasons for their decision their view that Mr K's "Psychiatric Illness" had resulted in manic and depressive phases which had considerably affected his life and life style. They said that their assessment of 70 per cent applied to the time of the first appeal in 1975. It was accepted that Mr K had been unable to make an earlier appeal because of his illness. The PAT decided to set aside the assessment of 30 per cent, and they made an interim assessment of 70 per cent effective from 2 April 1992 to the date of their decision. On 8 March WPA wrote telling Mr K that as his assessment had been increased to 70 per cent from 18 April 1975, they had had to "take some money off" his ALSO because the sum of WDP and ALSO could not exceed the rate paid for a WDP of 100 per cent. They said that when calculating the arrears due to him they would have to take into account the gratuities of £325 paid on 7 July 1975 and £1,114 paid on 15 January 1976. His assessment had been made on an interim basis and they would write again before 28 February 1998. On 22 March WPA sent Mr K a payment of £25,800.50 representing arrears of WDP for the period 18 April 1975 to 12 April 1994. On 26 October the Soldiers' Sailors' and Airmen's Families Association (SSAFA) wrote to WPA on Mr K's behalf requesting interest on the payment of £25,000. On 17 November a member of staff in WPA wrote to his supervisor saying that Mr K had a reasonable claim to compensation. WPA should have considered a claim for deterioration following Mr K's letter of 12 October 1981 and again on 17 February 1984. (Note: It is not clear what the member of staff had in mind in his reference to 17 February 1984. It is possible that he meant to refer to Mr K's reply of 3 March 1984 to WPA's request of 14 February 1984.) The member of staff said that because of that "it would appear that we have not dealt with his file correctly". On 25 November SSAFA telephoned WPA asking about progress on Mr K's claim for compensation. WPA recorded that SSAFA had been told that "the compensation had been approved at a local level but if the amount exceeded £10,000 it had to be approved by our headquarters".

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12.20 On 1 December the member of staff who had said on 17 November that Mr K had a reasonable claim to compensation wrote a detailed report for his supervisor's consideration. The following is an edited version of that report:

Mr K lodged an assessment appeal in 1976, which he subsequently withdrew. The letter withdrawing the appeal was sent to the Secretariat to the PATs, and no copy was retained by us. The Secretariat no longer have a copy. We do not know the reasons why Mr K withdrew his appeal. A copy of the letter should have been retained on file, to have sent it off as we did was sloppy. We are not in a position to make a judgement on whether we should have taken further action or made more enquiries as to his withdrawal. With hindsight, taking into account his condition and the fact that he had solicitors acting on his behalf, it would not seem unreasonable to have made further enquiries. We considered whether Mr K's letter of 12 October 1981 constituted a deterioration claim. We replied "No". That seems unreasonable and you (the supervisor) have since sought Dr [X's] opinion who stated to you that a claim for deterioration should have been considered and the hospital case notes requested. Mr K was therefore disadvantaged. There is other correspondence, for example 17 February 1984. This to my mind constitutes a deterioration claim. However, again no action was taken. On 30 January 1986 Mr K again drew attention to his medical condition which we should have considered. Mr K had the right to expect his case to be dealt with in a more professional and caring manner. It is debatable what the outcome would have been had proper investigations been carried out, but given the opinion of the PAT Mr K must be given some benefit of the doubt. He would have been given the opportunity to lodge an appeal if a claim for deterioration had been considered and he had been notified of the outcome. That is precisely why the outcome of the consideration of deterioration claims is notified in a manner which draws attention to appeal rights. Mr K has had his assessment decided by the PAT and arrears paid. I consider that for the above reasons he is entitled to compensation for those arrears.

The supervisor replied on 5 December saying that "payment of compensation may be authorised".

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12.21

1995

On 14 March WPA wrote to their MAs asking for advice in connection with their consideration of compensation for Mr K. They said that the payment of compensation hinged on whether the decision to reject psychosis and the subsequent decision to award an assessment of 6-14 per cent had been correct by the standards of the time "taking into consideration the knowledge before the certifying medical officer". They also asked the MAs whether either of the decisions could be classed as so wrong that they could be regarded as constituting clear and unambiguous error. The medical policy manager (MPM) replied on 22 March saying that: "The medical evidence is conflicting and in my opinion often speculative" and "I think the early medical decisions were reasonable and cannot be said to represent true and unambiguous error in light of medical knowledge of the time and facts before the MO". The MPM suggested that WPA seek advice from their policy colleagues "sooner rather than later". On 18 May WPA replied to SSAFA's letter of 26 October 1994. WPA said that, having considered Mr K's circumstances, they had decided that there were no grounds for paying him compensation. They said that DSS's compensation scheme existed to compensate claimants whose benefit payments had been delayed for unacceptably long periods through departmental error or omission. They said that in Mr K's case the initial decision and subsequent appeal had been dealt with correctly, and reasonable decisions had been given based on the facts available at the time. The same applied to the decision following Mr K's deterioration claim. WPA said that significant changes in medical opinion about the causes of psychoneurosis had been made since Mr K's case had been considered in 1975, and advances in medical science and additional evidence might have played a role in the PAT's consideration of the case and the eventual outcome. WPA said that: "The overturning of a decision by a higher tier of the adjudicating authorities is a routine event clearly envisaged in legislation. If it had been Parliament's intention that "interest" or compensation be paid on arrears delayed through the normal workings of the adjudication process the legislation would have made specific provision for it."

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12.22 On 6 June the then Member wrote to the then Parliamentary Under Secretary of State at the Ministry of Defence on behalf of Mr K and enclosed a letter from SSAFA. The then Member said that, as the letter from SSAFA made clear, Mr K was seeking "the interest/index linking to the sum of £25,000 he had received, which would amount to a further £10,000". On 7 July the then Chief Executive of WPA replied to the then Member on behalf of the then Parliamentary Under Secretary of State. He said that WPA had reviewed Mr K's war pension history but remained of the opinion that there had been no delay in payment due to clear and unambiguous error on the part of DSS. WPA still believed that there were no grounds for payment of compensation. On 31 July WPA wrote to Mr K referring to the fact that medical opinion about schizophrenia had changed with effect from 1 February 1976. They said that they were not withholding any of his medical records and that all of them had been made available to the PAT and had been included in the SOC. They said that there was no right of appeal against the decision to "recover" the gratuity awarded in 1975 as there was a "fundamental principle that no one should be paid twice for the same disablement". WPA also said that payment of compensation was made on an ex gratia basis; there was no statutory or legal liability "and therefore no right of appeal against non-payment". On 14 August the then Member wrote to the then Chief Executive of WPA saying that he had found his letter of 7 July disappointing and asking for Mr K's case to be looked at again.

12.23 On 31 August WPA wrote to SPU asking for advice on Mr K's claim for compensation. SPU replied on 8 September saying that compensation was not payable to Mr K. SPU said that they did not think DSS had erred in their processing Mr K's claim. There had been a long history of frequent reassessments of Mr K's mental condition, but those appeared to have been due to new diagnoses following developments in medical science, as opposed to merely having been changes in opinion. SPU said that Mr K's file indicated that there had been times when he had been in no condition to attend to his own affairs, and it could be argued that he could not therefore have contributed to any delay. They said that the nature of Mr K's condition appeared to have been "intermittent", with him apparently demonstrating the ability to handle his own affairs over various periods of time. SPU concluded that WPA could not be held responsible for any delay.

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12.24 On 29 September the then Acting Chief Executive of WPA replied to the then Member's letter of 14 August. He maintained the rejection of Mr K's claim for compensation, and said that although Mr K's case had been progressed slowly at times, for which he apologised, there had been no clear and unambiguous departmental error in the handling of the case, and SSAFA had been informed on 18 May of the decision not to pay compensation. On 29 December Mr K visited WPA.

12.25

1996

On 5 January the then Chief Executive of WPA wrote to Mr K to answer points which Mr K had made during his visit to WPA on 29 December 1995. The then Chief Executive said that he was sorry that Mr K was still unhappy with the reasons WPA had given for not paying him compensation. The then Chief Executive told Mr K how to complain to the Ombudsman. On 17 January Mr K wrote to the then Chief Executive complaining about WPA's "refusal of redress and compensation for 19 years of maladministration". WPA replied on 5 February telling Mr K that there was very little they could add to their previous replies which had outlined the reasons why they had been unable to pay him compensation. The then Minister of State for Social Security wrote to the then Member saying that WPA had thoroughly investigated Mr K's case but no grounds could be found for the payment of compensation, and there was "nothing" further they could add to that which had already been said.

12.26

1997

On 6 January Mr K telephoned WPA about his claim for compensation. In particular, he said that he was pursuing compensation in excess of £10,000 and referred to the OMD which had said that an interim assessment would be more suitable in his case and that they would not contest finality. (See entry for 26 June 1978 - paragraph 12.12.) On 7 January Mr K wrote to the then Chief Executive of WPA saying that he was trying to explore every avenue of mediation and representation with the then Chief Executive before embarking on other avenues of legal investigation. He said that the then Chief Executive's letter of 6 January 1996 (in fact it was 5 January) and the then Minister of State's letter of 5 February 1996 to the then Member had been "in error and flawed". On 12 March the then Minister of State for Social Security wrote to the then Member saying that the situation was difficult as Mr K did not seem to be prepared to accept the fact that WPA were unable to compensate him any further. The then Minister of State said that there had been no clear and unambiguous error on the part of WPA in handling Mr K's claim. There was no basis for an ex gratia payment. On 14 October the Member referred Mr K's complaint to the Ombudsman.

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12.27

1998

On 6 January Mr K visited WPA to discuss his case. One of the members of WPA's staff who interviewed Mr K recorded that Mr K had shown him a copy of a SOC dated 1978. The SOC included information to the effect that WPA felt that an interim assessment would be more appropriate to Mr K's disablement and that they would not defend finality. The member of staff said that the appeal for which the SOC had been prepared had not proceeded. He added that he thought the appeal had been discontinued at Mr K's request. The member of staff said that Mr K contended that WPA should have noted the OMD and arranged for an interim assessment to be implemented. The member of staff added: "I had to agree this required investigation." On 9 January Mr K wrote to the then Secretary of State for Social Security about WPA's handling of his case. He asked for an explanation of the statement made by the then Minister of State in his letter of 12 March 1997 that there had not been a clear and unambiguous error on the part of WPA in the handling of his case. Mr K wrote another letter for the attention of the Parliamentary Under Secretary of State (Lords) at DSS about what he called "the 22 years of injustice due to Departmental Maladministration". He said that the Secretary of State for Social Security was required to award an interim assessment instantly in the circumstances which had applied to his case. On 15 January WPA wrote to their MPM asking whether the finality of the 15-19 per cent award had been correct in 1978. They said that Mr K had recently shown them a copy of an OMD which had formed part of a SOC prepared in 1978 and which had clearly stated that finality would not be defended as it had been considered that an interim assessment would be more appropriate. WPA said that the appeal had later been withdrawn, but the 15-19 per cent award had remained final. WPA said that, in the light of the OMD, Mr K contended that DSS had made an error in not putting his award on to an interim basis in 1978. He also contended that compensation was payable because, had an interim award been made, he would have had his WDP increased at an earlier date.

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12.28 The MPM replied on 23 January saying that she had reviewed Mr K's file in its entirety, and in her opinion "the original finality decision is understandable in the light of the clinical description and although it would not be the consensus approach it is reasonable". She said that in 1978 the MAs had changed the assessment of Mr K's disability to interim, but that that had been their medical judgment, not action taken because there had been clear and unambiguous error. On 26 January WPA wrote to the MPM asking whether an interim award should have been made following the OMD in 1978. They said that Mr K's file showed that his award remained final until 1990 and it appeared that no one, lay or medical, had realised that finality had not been defended in 1978. The MPM replied on 27 January saying that it seemed reasonable to take the view that since the OMD had not defended finality, the case should have been re-submitted to WPA's medical branch for review when Mr K's appeal had been withdrawn. If appropriate, revision should have taken place, and Mr K should have been notified.

12.29 On 3 February the then Acting Chief Executive of WPA wrote to Mr K saying that WPA had investigated the OMD and "now agree that your award should have been made on an interim basis in 1978 and should not have remained final....". He apologised for the error and for any inconvenience caused. He said that WPA did not consider that their error had had any significant effect on the progress of Mr K's case over the years. If the award had been made on an interim basis in 1978, WPA would not automatically have automatically reviewed Mr K's assessment. Every four years notifications would have been sent to him advising him of his assessment and right of appeal. The then Acting Chief Executive told Mr K that the onus would have been on him to request a review. He went on: "It has already been established that you would not have been able to request such a review because of your disability. It must therefore be concluded that making your award interim would have had no effect on your actions or your WDP assessment. Therefore, any review request would have had to have been instigated by a third party." The then Acting Chief Executive said he understood that Mr K believed that, if his assessment had been made on an interim basis, he would automatically have received remedial treatment from Combat Stress (an organisation providing remedial treatment to former service personnel) who would as a consequence have asked for a review on his behalf. The then Acting Chief Executive said that WPA had found no evidence among Mr K's papers to indicate that Combat Stress acted in that way. He invited Mr K to supply evidence. He said that there were no grounds for altering WPA's decision about compensation.

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WPA's response to the complaint

12.30 On 22 May 1998 the then Acting Chief Executive of WPA wrote to the Ombudsman giving comments on Mr K's complaint. An edited version is at Annex A.

Findings

12.31 Mr K contended that WPA took too long to change the assessment of the degree of his disability from a final to an interim one. I found that part of his complaint fully justified. On 26 June 1978 an OMD said that an interim assessment would be more appropriate and that they did not propose to defend finality. However, WPA did not revise Mr K's assessment to put it on an interim basis until 1990, approximately 12 years later. On 13 February they wrote to him, after he had made a deterioration claim on 24 July 1989, telling him that they had reviewed all the evidence in his case and had decided to cancel the finality aspect of the assessment notice of 15 January 1976 and substitute an interim assessment. This decision was made in ignorance of the views expressed in the OMD in 1978. It was not until 3 February 1998 that WPA admitted to Mr K that they should have cancelled the final assessment in 1978. That admission came only after Mr K himself had brought the matter of the OMD report in 1978 to WPA's attention. I was pleased to see that the then Acting Chief Executive of WPA had apologised to Mr K and had agreed that the award should have been made interim in 1978. I criticise WPA for their poor performance.

12.32 Mr K contends that had his assessment been put on to an interim basis earlier, his WDP would have been increased sooner because WPA would have automatically reviewed his assessment on a regular basis. The then Acting Chief Executive said that WPA would not have automatically reviewed Mr K's case. Instead, they would have sent him notifications every two or four years informing him of his right to appeal and advising him to contact WPA if he wanted a review. The then Acting Chief Executive went on to say that WPA considered that on receipt of such a letter Mr K could not have pursued any claim or appeal between 1978 and 1989 because of his mental condition. The then Acting Chief Executive referred to the fact that neither Mr K nor a third party acting on his behalf had sought to re-activate the appeal which had been withdrawn in 1979 and which had been against a final assessment. He suggested that that showed that an appeal would not have been pursued against an interim assessment either, had an interim assessment been made in 1978 as it would have had but for WPA's maladministration. It struck me, however, that there were significant differences between the two scenarios. The notice enclosed with WPA's letter of 15 January 1976 said that there was a time limit of 12 months for the making of an appeal. The notice said that that could only be exceeded if a PAT accepted that there had been a reasonable excuse for delay, and that even then the commencing date of any resultant award would normally depend on the date of the appeal. I considered that Mr K, or a representative, was far less likely to make an out-of-time appeal under that scenario than under one which would have involved an in-time appeal following receipt of one of the four-yearly letters that would have been sent had the assessment been put on to an interim basis in 1978. Such a letter would also have provided a jolt to Mr K's memory of a kind that would not otherwise have been provided. It is no longer clear why the assessment appeal was withdrawn in 1979, but it is not improbable that a decline in Mr K's health had been a factor. The evidence shows that he suffered periods of bad health in subsequent years. It might well have been difficult for him to recall, without any external stimulus, the precise details of how he could seek to re-activate the appeal withdrawn in 1979. One of the four-yearly letters would have provided a stimulus to consideration of appeal rights. (I noted in passing that the only evidence that now exists that Mr K did indeed indicate his desire to withdraw the appeal in 1979 is what WPA said in their letter of 15 January 1979 to the Secretariat to the PATs. However, I have no reason to doubt the veracity of what WPA said.) I also noted that it was of the very nature of an interim assessment that it related to a condition which, in WPA's opinion, might change; a final assessment of its nature related to a condition that was more stable. That distinction might well have led Mr K to believe that he would have had more prospects of success against an interim assessment, had he been notified of one, than he would have had against a final assessment.

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12.33 What of WPA's belief that Mr K would have been incapable, because of his medical condition, of reacting to the stimulus provided by one of the four-yearly letters that would have been issued had his assessment been an interim one? The PAT held on 27 January 1994 said that the assessment applied to the time of the first appeal in 1975, and that Mr K had been unable to make an earlier appeal because of his illness. It did not seem to me to follow automatically from that that Mr K would also have been unable to react to a letter had his assessment been an interim one. There is a good deal of evidence that, for certain periods, Mr K was perfectly capable of rational action. After WPA had written to him in October 1977 to inform him that he had been awarded ALSO, they corresponded on a regular basis with him throughout the 1980s about that benefit. For example, on 14 February 1984 they wrote asking him about his employment record, and he replied promptly and comprehensibly on 3 March. WPA wrote to Mr K on 17 January 1986 in connection with a review of his ALSO and again his prompt response of 30 January was totally coherent. I noted that when SPU considered Mr K's claim for compensation on 31 August 1995 they commented that his condition appeared to have been "intermittent" with him demonstrating the ability to handle his own affairs over various periods of time. It seemed to me to be ironic that one of the grounds on which SPU's refusal of compensation had been based had been that he had at times been capable of handling his own affairs (with the implication that he had shown contributory negligence - paragraph 12.8), while WPA had more recently refused him compensation because they considered that he had not been capable of making an appeal.

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12.34 I considered that WPA's delay in putting Mr K's assessment on to an interim basis constituted a clear and unambiguous administrative error on their part. WPA argued that that error had not led to any financial loss for Mr K, but I found grounds for challenging that view. It seemed likely to me that, but for WPA's maladministration in not putting Mr K's assessment on to an interim basis in 1978, he would have appealed earlier against the level of his assessment and he would have received WDP payments earlier. I therefore asked the Chief Executive if, in the light of my findings, he would reconsider Mr K's claim for compensation. I also asked the Chief Executive if he would consider compensating Mr K for the gross inconvenience and botheration he had been caused in pursuit of his claim for compensation, and if he would willing to add his apologies for WPA's shortcomings. Following exchanges between the Deputy Ombudsman and the Chief Executive, WPA replied that they had decided to compensate Mr K for the loss in value of the backdated award of WDP he had been paid in 1994. The amount payable was £14,940.43 and covered the period 1975 to the date the arrears of WDP had been paid (22 March 1994). WPA also agreed to make Mr K a consolatory payment of £150 to reflect the inconvenience he had been caused by having to pursue the matter for such a long time. WPA sent Mr K a payable order for a total of £15,090.43. They also agreed to make Mr K an additional payment to compensate him for the delay in paying compensation. The calculation would be done on the basis that the compensation had been due on 22 March 1994. The Chief Executive offered his apologies to Mr K for WPA's error in taking too long to change Mr K's assessment to an interim basis. A member of WPA's staff also wrote to Mr K offering WPA's apologies.

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12.35 I turn next to the detailed report produced by a member of WPA's staff for his supervisor on 1 December 1994. The member of staff drew attention to opportunities missed by WPA to look again at Mr K's case and highlighted correspondence from Mr K about ALSO which the member of staff believed had indicated that Mr K's condition had deteriorated. The member of staff referred to Mr K's letter of 12 October 1981 to WPA telling them that he had been admitted to hospital after being seen for "acute depression". WPA decided that as Mr K had not specifically made a deterioration claim, they would not review his assessment. According to the member of staff, when his supervisor had sought advice from WPA's MAs they had stated that Mr K's hospital case notes should have been requested and a deterioration claim should have been considered. It was not clear to me what guidance had been given to WPA's staff as to what was expected of them when giving consideration to deterioration claims, especially when they had received correspondence such as that from Mr K. I noted that the member of staff regarded it as unreasonable of WPA to consider that correspondence did not constitute a deterioration claim simply because the writer had not specifically said that they wished to make such a claim. I therefore asked the Chief Executive whether he thought it appropriate that WPA should review their guidance to staff on the question of deterioration. In reply, the Chief Executive said that WPA's guidance had been revised in 1995 and again in 1997 and 1998. He said that the guidance was under constant review and did not require further attention at the current time.

12.36 WPA indicated to SSAFA on 25 November 1994 that compensation had been approved in Mr K's case, but they wrote to SSAFA on 18 May 1995 saying that there were no grounds for paying compensation. I was glad to see that the then Acting Chief Executive apologised, in his letter of 14 August to the then Member, for the misleading information given to SSAFA.

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Conclusion

12.37 WPA's handling of Mr K's case fell short of the standards he had a right to expect. They delayed changing the assessment of his disability from a final to an interim one. As a result he received WDP later than he would otherwise have done. The then Acting Chief Executive and the present Chief Executive apologised for WPA's shortcomings. I regard those apologies, which I pass on to Mr K through this report, together with the apologies offered to Mr K by WPA's staff, compensation payments totalling £15,090.43, and WPA's agreement to make Mr K an additional payment to compensate him for the delay in paying compensation, as representing a very satisfactory outcome to my investigation of a justified complaint.

Annex A

Edited version of the comments of the then Acting Chief Executive of WPA

1. WPA accept that some delays have occurred in the handling of Mr K's case. We have apologised for this but I reiterate my apologies for any inconvenience Mr K has been caused. In 1978 we were preparing a SOC for an assessment appeal Mr K had lodged against a final assessment of 15-19 per cent. At the time one of our MAs made a decision not to defend the "final" aspect of the award and recommended that it be made on an "interim" basis. Mr K withdrew the appeal and the case did not reach a PAT. However, the advice from the MA was not noticed at the time, and Mr K's award remained final. Nothing more was heard from Mr K until 1989 when his assessment was reviewed at his request. This resulted in our MAs maintaining the 15-19 per cent assessment, but on an interim basis. The assessment was later increased to 30 per cent on further review and then increased to 70 per cent by a PAT. The 70 per cent award was backdated to 1975 when Mr K had been discharged from the forces, as it was accepted by WPA and the PAT that he had been unable to make an earlier appeal due to the nature of his disablement. It is important to remember that Mr K could not pursue a claim or appeal during the period from 1978-1989 due to mental incapacity.

2. In late 1997 we discovered the advice given in the OMD in 1978. That advice was that an interim assessment was more appropriate. Mr K had made us aware of this issue earlier in 1997 but we had not appreciated its significance. I apologise for this oversight. The reason that the advice in the OMD had not been noticed earlier is partly the fact that the OMD in 1978 had been prepared for the sole purpose of the appeal. It had been contained within the appeal papers. Once an appeal is heard or withdrawn, we have no need to refer to the appeal papers, as we would use the original documents on file. Once the matter had come to light, medical policy advice was sought. Advice had previously been given by the MPM that the assessment of Mr K's condition in the 1970s, and the acceptance of his condition and description, used were all reasonable given the standards at the time. It was confirmed that the decision on whether an award should be interim or final is a matter of medical judgement, not fact. The original decision to make the award final is considered understandable and, although it would not be the consensus approach, was reasonable. It was agreed that Mr K's award should have been reviewed after the appeal had been withdrawn to clarify whether it should have been interim or final. We are prepared to accept that in all probability Mr K's award would have been made interim had a review been conducted after the appeal had been withdrawn.

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3. On that basis we considered if making the award interim in 1978 would have had any effect on later developments in Mr K's case. Until 1966 war pensioners receiving interim awards were called for reassessment every two years, and would normally require some sort of medical examination. After 1966 the system changed. Under the new arrangements a letter was issued every two years to pensioners reminding them of their rights of appeal and advising them to contact us if they wanted a review or an appeal against an assessment. If no contact was made, no medical examination took place and the assessment remained unchanged for a further two years. In 1977 the period between letters was extended to four years. There was consequently no possibility of Mr K being called automatically for a medical reassessment between 1978 and 1989. It is clear that had Mr K received an interim award between 1978 and 1989 instead of a final one, the only difference would have been that a letter would have been sent to him every four years. We consider he could not have pursued any claim or appeal on receipt of such a letter because of his mental condition. We have considered the possibility that Mr K might have enlisted the help of a representative during this time and that this third party might have pursued an appeal. However, Mr K had withdrawn his assessment appeal against his final award and he still had a right to pursue this appeal throughout the late 1970s and 1980s. Permission would, however, have been needed from a PAT. Our letter of 15 January 1976 had made clear that out-of-time appeals could be considered. We therefore concluded that had Mr K been receiving help from a third party during the time of his incapacity and had he wished to challenge the 15-19 per cent assessment, the third party could equally have pursued an appeal against the final award in the same way that an appeal against an interim award could have been made. We therefore see no significant difference in the award being final or interim in this respect.

4. Mr K has suggested that had he received an interim award in 1978, he would have automatically been invited to attend for remedial treatment. He contends that an assessment review would consequently have been made earlier. Remedial treatment is provided by the Ex-Services Mental Welfare Society, and treatment costs are only considered on application. There is no automatic referral of war pensioners who receive interim (or for that matter final) awards. I am not aware of the remedial treatment available in the 1980s but Mr K (or a helper) would not have been prevented from applying for any medical treatment simply because the assessment was final rather than interim. We fully accept that Mr K was put at a disadvantage by his inability to pursue his case in 1978-89. To reflect this we have paid him WDP back to 1975 following a hearing by a PAT. However, we do not agree that our failure to send a letter every two/four years to someone incapable of making a claim/appeal has had any effect on his case. Our MPM has stated that other decisions on Mr K's case had been reasonable given the knowledge of mental health matters at the time, and we can therefore see no grounds for making a compensation payment.

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Annex B

List of abbreviations used and their meanings

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Short text of this investigation

Last updated: 19 April 2006