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

Considered in Grand Committee

Moved by

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

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

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

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

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

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

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

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

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

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

My Lords, often in your Lordships’ House—and I mean your Lordships’ House, not Grand Committee, as I have not forgotten where I am—we spend a lot of time looking at primary legislation and saying that we need better scrutiny, that we should not have Henry VIII clauses, that we do not want framework legislation and that we need to be able to scrutinise statutory instruments very closely. The assumption is that the Government, on occasion, are perhaps trying to pull the wool over our eyes.

We do not get framework legislation with lots of Henry VIII clauses from the MoD, but we do from other ministries, so we will perhaps exonerate the MoD from this. Here we have a statutory instrument that looks so straightforward that one almost wonders why it needs to be here, other than that we had agreed in the Armed Forces Act 2021 that we should scrutinise such a statutory instrument. In asking whether this should be considered debated and approved, it is a straightforward statutory instrument, as it is only right that service personnel and veterans who are seeking to appeal, whether they are from Scotland, Wales or Northern Ireland, are treated in the same way. The basic principle seems straightforward: everyone in the four nations of the United Kingdom should be treated the same.

I have a similar question to one from the noble Lord, Lord Jones, about the number of appeals we are thinking about—not necessarily in 2021 or 2022. Are we talking about very large numbers or is this seem primarily as a tidying-up exercise? It would be useful to know that and have a sense, looking back 15 years from 2008 to 2023, of whether many people have been done a disservice because they were in Scotland and Northern Ireland and were not able to appeal between months 13 and 24, whereas they would have been able to in England or Wales.

I like the idea of the Lord Chancellor’s steering group but agree that it would be interesting to know more about its basis and whether it is intended as a long-term body.

My Lords, I thank the Minister for introducing this instrument. It seems simply to bring appeals in Scotland and Northern Ireland into line with those in the rest of the United Kingdom, which is a good thing. I am curious, because this anomaly presumably sprang up in 2008, which was 15 years ago, about why it has taken so long to alight upon it and address it. That is the first of my two questions.

Secondly, the hierarchy for whether an appeal is allowed involves a step at which the Secretary of State may choose not to allow it. Does the Secretary of State have to respect any criteria in making this decision or is it absolutely at his discretion? I cannot see any guidance on the criteria in the instrument, but there may be a general criterion. I recall some discussion of this in the past and the requirement of Secretaries of State to behave reasonably, but I cannot see any criteria. Clearly, the stopgap—the thing that makes this reasonable —is that the tribunal may override the Secretary of State in the interests of justice, so it is not that important a point, but I am curious.

Just to make sure I have not got this completely wrong, would the Minister confirm that this measure is favourable for appellants in Scotland and Northern Ireland?

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

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

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

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

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

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

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

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

Motion agreed.