War Pensions: Appeals Process

Hugh Gaffney Excerpts

Wednesday 13th March 2019 Commons Chamber

[Justin Madders]

I thank the hon. Gentleman for his intervention. I do not know the answer to that. My constituent has sought numerous sources of assistance throughout the years, some of which I will go into. This has proved to be an extremely time-consuming and convoluted process, which has caused him unnecessary stress—the hon. Member for Strangford (Jim Shannon) referred to that—and has undoubtedly exacerbated his ill health and affected his quality of life. Opportunities to act and put things right were repeatedly missed throughout the handling of his case. I hope that his experience has not been repeated in the other 588 war pension appeals cases that, at 11 November 2018, were still in train.

As I have stated, my constituent was awarded a war pension at 50% and a lower standard of occupation allowance in 2012, following as assessment that noted that Mr Cottrell

“cannot walk more than 200m without stopping or severe discomfort”.

Upon leaving the Army, he worked as a tutor for Manchester College for a number of years, delivering training to professional drivers, which included on-the-road training as well as classroom-based training. In 2013, he applied for his pension from the college to be released early on health grounds. He was referred to Dr Nightingale in December 2013, via the occupational health team, for an assessment to be made. Dr Nightingale concluded that he was unable to work as she did not

“envisage significant recovery to facilitate return to work in due course to enable ‘gainful employment’ at 30 hours per week, every week, on a sustained basis for a 12 month period”.

As Mr Cottrell was unable to work, he submitted a deterioration claim to request a formal review of his war pension assessment in January 2014 and was sent for an assessment with Atos Healthcare in April of that year. The report from this assessment is scattered with errors, which is not surprising, given that Mr Cottrell informs me that he was not asked all the questions that appeared in the report. We have all heard about the errors and indignities our constituents have suffered during these assessments, and earlier today I took part in a Westminster Hall debate on disability assessment services, where Member after Member brought up harrowing examples of flaws with the assessment procedure. Now is not the time to rehearse those massive flaws in the way those assessments are carried out, because, flawed though that assessment was, I am here today because of opportunities that were not taken afterwards to put the situation right.

[Hugh Gaffney (Coatbridge, Chryston and Bellshill) (Lab)]

Does my hon. Friend agree that the pension age has been increased to 67 and we have WASPI—Women Against State Pension Inequality Campaign—women who must also have served in the Army, perhaps in this regiment, and they are entitled to a pension as well, along with others?

[Justin Madders]

I thank my hon. Friend for his intervention and he is right; the injustices the WASPI women have suffered have been repeatedly mentioned in the Chamber. When they see how we are incapable of finding a way through our current predicament, they will be disheartened to see that this Government cannot deal with such a major injustice.

Let me return to Mr Cottrell’s assessment. It contained many errors, including saying that Mr Cottrell drinks alcohol occasionally when he was not asked about alcohol during his assessment. It exaggerated his ability to walk, saying that he was able to walk further than 800 metres, despite only being observed walking 10 metres to the examination room during the assessment. Let us not forget the earlier assessment in 2012 said he could not walk more than 200 metres, and clearly his condition had not improved in the meantime. Perhaps the most incredulous part of the assessment was the conclusion that his PTSD was ‘likely to improve”, an assumption that was not based on any medical evidence whatsoever. In fact, it was direct contradiction to what Dr Nightingale said in her report, which was that this would not happen. Clearly, her views were not given anything like the same weight as the views of the Atos assessor, who saw Mr Cottrell for only a short amount of time.

As a result of the incorrect report, Mr Cottrell received a decision letter in July 2014 stating his war pension rate would not change. He disputed the findings of the assessment, as he did not believe that the medical evidence had been adequately taken into consideration. His complaint was referred to the independent complaints executive, which informed Mr Cottrell that his complaint was not in its remit and so he requested that Veterans UK investigate his complaint. Mr Cottrell informs me that the chief medical officer of Veterans UK reviewed the complaint and concluded that Dr Nightingale’s assessment was incorrect as it only referred to him being unable to work for the next 12 months. Rather incredulously, he also said that the report should not be trusted due to the close relationship Mr Cottrell would have with Dr Nightingale as his GP. Given that Dr Nightingale assessed Mr Cottrell via the occupational health department of his employer and was not his GP, this demonstrates clearly that her report was not properly considered, understood or possibly even read at all.

In fact, the contents of Dr Nightingale’s report are really the nub of the issue, as it has since transpired that the paperwork shows that the decision on Mr Cottrell’s claim was made three days before the medical report from Dr Nightingale was received by the assessors. The report was recorded as being received by the department on 14 July, although for some reason the recorded date is 15 July, but, crucially, the decision on Mr Cottrell’s claim was made on 11 July. This is a basic error—it is factually indisputable—but since that point, the whole process has been characterised by a total failure to acknowledge that mistake and act accordingly.

An example of that failure is that the records reveal that when the assessing doctor was informed that Dr Nightingale’s report had been received late and was asked whether that would have altered his decision, the assessing doctor did not actually look at it again, because the response was in fact from a different colleague, who said that the assessing doctor was not available, but that in the new doctor’s opinion the original decision remained appropriate. It seems to me to be wholly inadequate to have one professional trying in effect to second-guess what another professional might have said. It should have been sent back to the original doctor to do the whole thing again. Had that happened, I very much doubt that we would be here today.

Following that decision, Mr Cottrell proceeded with the internal complaints procedure of Veterans UK, while also appealing the decision at tribunal. His case was eventually heard in February 2015, and the tribunal was unsuccessful. Worryingly, papers from the tribunal demonstrate that half Dr Nightingale’s report was omitted from the appeal pack. So, for a second time, the full evidence was not considered. Following that, Mr Cottrell was told that only procedural issues could be dealt with via the remaining complaints procedure.

Mr Cottrell informs me that because of the controversy over Dr Nightingale’s report, he decided to write to her in September 2015 about the interpretation that the department had made of her report regarding the period for which he was unfit for work. Dr Nightingale responded by stating that in her professional opinion, as had been detailed in the report previously, Mr Cottrell was permanently unable to work. That letter was then sent to the MOD.

In the meantime, Mr Cottrell made a new deterioration claim for extra allowances for his war pension, and Dr Nightingale’s letter was added to the new claim file, rather than being considered as part of the ongoing dispute regarding the 2014 Atos assessment. This review resulted in an increase in Mr Cottrell’s war pension from 50% to 70% in August 2015, and he got unemployability supplement in November 2015. Indeed, on 26 November 2016, Mr Cottrell received a letter from Veterans UK saying that he was entitled to unemployability supplement

“because we think you are unable to work”.

Curiously, this decision did not require a medical assessment, and instead used both the letter submitted by his GP and the report made by Dr Nightingale. So, 18 months on, we finally got the right decision, even though the medical opinion had not changed during that time. Given that both the information from his GP and Dr Nightingale had been discounted by Veterans UK previously, Mr Cottrell feels that demonstrates that the objection to his appeal was unfounded and that his award should be backdated to January 2014, when the deterioration was originally reported and the application made.

In the meantime, with regards to his complaint, Mr Cottrell was informed by Veterans UK that it would no longer respond to his or his solicitor’s correspondence, so he referred the complaint to the Parliamentary and Health Service Ombudsman. Following this, Mr Cottrell received a visit at home from the customer services manager of Veterans UK. He tells me that during this visit he felt he was being encouraged to drop his complaint because his new claim had been approved. I find that a rather curious approach to take, if not an improper one. Frankly, the implication that he should be satisfied with his lot is simply not good enough.

My constituent deserves to receive the war pension to which he was fully entitled from the beginning. He should not be expected to write off several years of underpayment just because the MOD got it right in the end. I am deeply concerned that because the appeals process open to him was not sufficient to deal with his complaint and instead resulted in a drawn-out affair, he had to use a solicitor, running up a bill of nearly £5,000. It was only because of the financial costs that he could not pursue his legal case any further.

I have been trying to resolve this unfair situation since June 2015, just after I was first elected. That is nearly four years. In that time, I have written to the Minister responsible on nine occasions and twice to the independent complaints panel, which subsequently took up Mr Cottrell’s complaint. At this point, I pay tribute to my caseworker Eve, who has done a great job in keeping the issue going all the way through. We should all acknowledge the great work that our staff do. I think that every Member would agree that without them we would not be anywhere near as effective as our constituents would like us to be.

As the House can tell, the details of this case are long and complicated, but at the heart of it lie two simple truths: first, a mistake was made in assessing Mr Cottrell’s deterioration claim in 2014; and secondly, since then, no one has been prepared to admit that mistake and put it right. That is not how justice is supposed to work in this country. If a wrong has occurred—I hope that it is patently obvious from what I have said that the original decision was wrong—then nobody, and certainly not someone who has suffered as a result of service to their country, should be faced with such a begrudging attitude, which is essentially, “Well we got there in the end, albeit a few years late, so be satisfied with your lot.”

That brings me back to where I started. Our servicemen and women deserve respect, support and fair treatment both during and after their service. I do not believe that we have seen that in this appeals process. I am concerned that the bodies and processes are not sufficient to deal with complaints in general.

Eventually, the Veterans Advisory and Pensions Committees found in Mr Cottrell’s favour and strongly recommended that his war pension was backdated, yet Veterans UK ignored this recommendation.  I appreciate that it is an “advisory” committee, but what is the point of making recommendations if no one listens to them and they cannot be enforced? Mr Cottrell was also concerned that he was not able to present his case in person to the VAPC, which meant that he could not, for example, make the case for repayment of his legal fees. Mr Cottrell does not know what evidence was considered by the panel, and his communications with VAPC were via Facebook Messenger. I think there is now an acceptance that that was not an appropriate channel for communication, but it does bring into question the resources available to the VAPC to deal with the administration of hearings, which seemed to take an age to happen.

It has also been brought to my attention that the Independent Complaints Panel is made up of members of the VAPC, so how, in those circumstances, can it really be independent? In my correspondence with the Minister, and his predecessor, I have asked for a review of the way that this case has been handled, so that mistakes are learned from and no one else has to suffer in the way that my constituent has. I believe that my constituent deserves an apology from the Ministry of Defence, compensation to cover his solicitor’s fees and the backdating of his award to the original application date.

As the Minister himself confirmed in his letter of March 2017, the backdating of awards can be considered when there has been an error in the handling of a case, and I believe that that is the only reasonable outcome. It is manifest that there was an error in the original assessment, and after four years there was a recognition by the VAPC that the original decision was wrong, but why my constituent feels so strongly about this, as do I, is that it should not have taken four years to go through this process, which at the end of it turns out to be something that cannot be legally enforced.

Although there is obviously the individual injustice that my constituent has suffered, questions need to be asked about how such an obvious error was allowed to continue for so long. The Government also need to review the powers of the VAPC. If its decisions cannot be enforced then it is a toothless body, which gives people false hope and wastes people’s time. Frankly, our veterans deserve better.