Military lawyers welcome Government response to Armed Forces Compensation Scheme Quinquennial Review and positive changes that will help claimants
In July 2023 the Quinquennial Review (QQR) was published following the review of the Armed Forces Compensation Scheme (AFCS) to ensure that the AFCS remains fit for purpose by providing appropriate recognition and financial support to those members of the Armed Forces who are injured, become ill or die as a result of service, providing an opportunity for policy improvements.
The response to the QQR recommendations was to be provided by the Government and also stakeholders. Last month the Government response to the recommendations was published.
At the time that the QQR recommendations were published in 2023 we expressed reservations since some of the recommendations, if implemented, would actually disadvantage claimants applying through the AFCS.
It's against that background that we've reviewed the Government’s response and very much welcome the positive approach taken by it in considering which recommendations to implement.
Recommendations accepted by the Government will be implemented on a rolling basis over the next 18-24 months.
Subjective decision making
One of our main concerns with the QQR recommendations was that a significant element of subjectivity was to be introduced in the decision-making process. This would enable decision makers to separate the decision on lump sum awards from the decision on Guaranteed Income Payments (GIP), such decisions being made entirely upon a subjective view of the case handlers opinion of a claimant’s family, social and occupational functional limitation.
We very much welcome the Government’s response which rejects such a decision-making process. Indeed, the response was that to implement such a subjective system would “increase the risk of inequitable outcomes for claimants. Furthermore, rather than simplifying the method for calculating awards, the changes would introduce increased complexity into the scheme, making it less transparent and more difficult for claimants to understand”.
Further the Government states that “our analysis shows that the proposals carry a high risk of inconsistency and inequity in awards because some of the judgements proposed will, by their very nature be subjective."
The rejection of the recommendation to return to the subjective decision-making process used under the previous War Pension Scheme, was the main concern that we had and upon which we based our own response to the recommendation. We agree with the response that such a proposal to split the lump sum award from the GIP would “change the original intent of the scheme”.
Interim awards
In many situations, particularly in mental health cases, a claimant applying to the AFCS will receive an interim award. This means that an initial award is given and is made interim for a period of up to 24 months at the end of which it will be reviewed with a maximum of four years in total.
The QQR recommended that the interim review period should be a maximum of 12 months which was something that, in our significant experience of dealing with claimants with mental health issues, would disadvantage those who were going through protracted periods of treatment where an outcome could not be known for some considerable time.
We were therefore pleased to find that the Government response to this recommendation is to reject it because “operational experience shows that reducing the 24-month interim award period is unlikely to be beneficial to claimants”.
It's specifically agreed that claimants would struggle to obtain the necessary medical treatment in order to enable an accurate picture of the injury or prognosis for the future to be obtained and that this would disadvantage claimants with a lower award than they would have received at the four-year point.
We very much welcome this approach which accords entirely with our own experience of dealing with mental health cases. It's stated that going forward better communication will be provided as to why interim awards are made in order to manage claimant expectations and confirm that this is in fact in their best interests.
Medical evidence
A further recommendation by QQR was that treating doctors and physicians only, should be the providers of medical evidence.
In cases in which we're involved we consider that independent medical evidence is crucial. This is because an independent medical expert has a duty to the court as opposed to any individual party in the claims process.
This means that their evidence is truly independent since it favours neither party. Our concern with the QQR recommendation has in fact been acknowledged in the Government response in that it is “important to note that the claimant’s medical team are representatives for the claimant with a professional need to maintain the trust and confidence of their patients. They cannot (and probably should not) take an objective view of the situation in these circumstances."
It's also recognised that claimants may have multiple treating physicians none of whom have the same opinion. It's “for all these reasons, rather than giving primacy to evidence from the treating physician, a holistic approach is taken in considering claims”.
This is critical for claimants in terms of providing evidence to support the prognosis for the future and therefore secure an award under the higher tariff bands.
The government response quite correctly states that “treating physicians are often hesitant to provide a definitive prognosis regarding the duration a mental health condition”. It will be the case going forward that “all relevant medical evidence is thoroughly considered allowing for a fair and comprehensive evaluation of each claimant’s condition”.
It's important that objectivity is required and that an holistic approach should be taken in terms of looking at all evidence that is available.
Despite the very favourable response of the Government it remains the case that there are matters which are not as beneficial to the claimant as we would have hoped.
The recommendation in the QQR that decisions made upon a Claimant’s Application to Reconsider an award should only be carried out on the evidence available when the original decision was made, has been welcomed by the Government ‘in principle’. In addition to that a checklist of evidence which may be required to prove a case will be developed.
On the face of it an evidential checklist, albeit non-exhaustive, would appear to be a good idea. It should assist claimants when they submit an application in terms of what evidence they need to compile to support the claim.
The difficulty with this is that a claimant may not know how or where to obtain the evidence. If the first decision that they receive is incorrect because insufficient evidence has been provided, the move to amend The Order to ensure that Reconsiderations can only be carried out on the material upon which the original decision was based, will prejudice claimants even more since they will inevitably fail a second time.
Effectively this recommendation, if implemented removes one of only three procedural stages available to a claimant in making a claim through the AFCS especially if the application is made close to the seven-year limitation deadline and there is no time to obtain the necessary evidence.
Legislative change would be required to amend The Order as above which the Government say will be assessed during 2024. In short therefore, we have to wait and see exactly what the outcome may be and we will of course highlight our concern to the respective stakeholders in the meantime.
Conclusion
All in all, we welcome the Government’s response to the QQR which we feel is positive, considered and balanced in terms of the impact that any changes will have upon claimants navigating the Scheme.
Find out more about our expertise in supporting service personnel suffering from illness or injury at our dedicated military injuries section.
