There surely can't ever be any need to appeal, can there?
JSP 765 says (my emphasis):
"the AFCS is a no-fault scheme... The arrangements guarantee a fair deal for all those who are entitled to compensation. The unique nature of military service is reflected by the nation’s continuing commitment to those who have been injured, with an appropriate recognition for their sacrifice. The arrangements deliver consistent and equitable outcomes, with due recognition to the needs of those most seriously injured who receive higher awards than those less seriously injured...
Transparency is a key consideration, with widely available clear information and guidance enabling claimants to access the Scheme successfully...
The arrangements reflect contemporary best practice in relation to disability, by supporting people to look forward in their lives, empowering them and enhancing their capability. Reflecting this ethos, the Scheme is one element in a coordinated range of services, benefits and programmes provided by the responsible government departments, devolved administrations and delivery agencies working together to maximise the individual’s well-being...
The process of determining a claim is inquisitorial and not adversarial... DBS medical advisers have typically had a career in clinical medicine, e.g. general practice or psychiatry, and are trained in medico-legal determinations and the AFCS legislation. They give advice, with reasons, based on the case-specific service and medical facts and in line with contemporary medical understanding of the causes and progress of injuries and disorders...
This process of analysis by trained officers means that awards are evidence-based. They aim to be consistent and equitable and properly reflect the extent of the injury or injuries which have been predominantly caused or made worse by service."
There should be very few, if any, appeals of an AFCS decision.
In my opinion, based on the excerpt from JSP 765 above, Veterans UK should be in a position where virtually every decision is correct.
Nearly all appeals of Veterans UK decisions in AFCS claims should fail based on what's written in JSP 765, because Veterans UK guarantee a fair deal for all those who are entitled to compensation. The Scheme is supposedly no-fault, and claims are apparently investigated in an inquisitorial and not adversarial process. The decisions are supposed to give consistent and equitable outcomes, be transparent and evidence based, expressing the reasons for the decisions once made.
Review, Reconsideration and Appeal
The Overview section at the start of Chapter 8 of JSP 765, which deals with Review, Reconsideration and Appeal, is a really nice explanation of what the system should be. It's comically depressingly reading when you have experience of what actually happened in the decision in your own claim. I could probably fill the website with an angry and bitter breakdown of that decision and how it bears no resemblance to Chapter 8's principles, but that probably wouldn't be that interesting. I'll try and pick out the points where there is a clear and demonstrable difference.
Paragraph 8.1 says: "the AFCS is designed to make awards as soon as possible after the claim. These awards are full and final and not subject to continuing review, in order to provide individuals with a degree of certainty about their financial position. This allows them to move forward with their lives, focusing on the future rather than wondering whether they will receive compensation, how much it might be, and whether it may be changed at some point in the future." This evidently isn't what happens, and there is a clear understanding by the JSP's authors of how hard it is to be left in financial limbo by the deliberations of Veterans UK, and the latter's underestimation and misunderstanding of the damage of mental injury.
Reconsideration is the first stage of appealing the initial decision of Veterans UK. Theoretically it is designed to allow an individual to explain why they do not agree with the decision taken in their claim. I think this is a little far fetched within the bounds of what the Scheme is supposed to be. Claimants are supposed to be laypeople, and the Veterans UK decision makers are supposed to be trained in making reasoned decisions based on the rules of the Scheme, supported by policy advice and guidance, while medical advisers are trained in medico-legal determinations and the AFCS legislation. Any explanation by an individual why they don't agree with the decision taken in their claim shouldn't really have sufficient substance to affect the decision, because the individual should have nothing like the knowledge and training in AFCS's rules that Veterans UK's staff have.
This is where I again become racked with self doubt. Maybe the system does work. Maybe the decision taken in my claim was correct. Maybe I'm just being petulant, not accepting the decision, howling at the moon and tilting at windmills.
An application for reconsideration must be in made within 12 months from the date of the original decision. DBS Veterans UK will then take a look at the case again in light of the individual's comments. The decision-maker who undertakes the reconsideration is different from the original decision-maker, enabling a ‘fresh look’ at the case. During reconsideration, DBS Veterans UK can either maintain the decision already made or increase the award. The award cannot be reduced or removed.
I applied for reconsideration in my case without a lawyer. I was angry enough to want to do it myself, and with the best will in the world a lawyer isn't going to be able to complete the work on your case immediately. I wanted a degree of certainty about my financial position, to be allowed to move forward with my life, focusing on the future, just like the JSP said I should be able to. I received the original decision in my claim on 27 October 2020 and submitted my request for reconsideration on 2 November 2020, which you can do when you are your own client.
I got my reconsideration decision in March 2021, and it confirmed the original decision. If I was racked with self doubt before, it was supercharged now.
If there hasn't already been a reconsideration when you lodge an appeal, Veterans UK automatically do a reconsideration. If they have done one already, or the reconsideration doesn't change the decision, the case will proceed to an independent tribunal.
I'm in uncharted territory here. When I was weighing up whether to appeal or just walk away, I spoke to the Legion. Their adviser said that the tribunals are very positive and the panel want to hear from the claimant, hear their story and their understanding of their injury.
I put in my appeal paperwork in March 2021, and despite repeated complaints from my solicitor and the involvement of my MP, Veterans UK didn't even release my file to the lawyers until November 2021.
As I understand it, it can take years to get to tribunal. They are back listing hearings now though, according to the Courts and Tribunals website.
The JSP says that each tribunal consists of a legally qualified Chair, a medical member, and an ex-Service member. In England and Wales, appeals are heard by the War Pensions and Armed Forces Compensation Chamber of the First-tier Tribunal. In Scotland and Northern Ireland, appeals are heard by a Pensions Appeal Tribunal. For claimants living overseas, their appeals will be dealt with by the Tribunal covering England and Wales.
I'll try and stick updates on here based on what it's like as I go through it.
In civil cases, permission to appeal a court's decision will only be given if the court considers the appeal would have a real prospect of success, or there is some other compelling reason why the appeal should be heard. Appeals are usually granted if it is arguable the decision was plainly wrong or unjust through a serious irregularity. A real prospect of success has been found to mean that the prospects of success must be realistic rather than fanciful.
Remember also that in civil claims these are cases that have gone all the way to court, where a judge has heard arguments from both side's lawyers, who have already examined the case in fine detail, and where suitably experienced experts from the same field have discussed the issues and given their opinions. In clinical negligence claims it is frequently possible to have experts giving very different opinions on a claimant's condition. This is especially so in complicated areas of medicine, or where practice has recently changed and there are different opinions amongst a body of clinicians. This could be where management of an injury is concerned, such as diagnosing and treating deep vein thrombosis and pulmonary embolism (deep blood clots in places such as the calf, which then moves to the lungs). Two orthopaedic surgeons and two vascular surgeons may take different views. It could also be where a claimant suggests they have PTSD, and two expert psychiatrists have different views of whether the claimant is genuine. In all these examples though, as I've stated elsewhere, there will always be experts in the appropriate field, and unless it is valid for them to assess the claimant on the records alone, the experts will assess the claimant in person.
The UK's legal system is adversarial because that has been seen to give the best decision more often than not, as each side will pick at all the available holes in the other side's arguments. A judge or mediator then listens to the arguments that haven't been conceded, and decides who's right.
So to get permission to appeal the judge's decision, after all that expensive, detailed argument and consideration, there needs to be a non-fanciful prospect of that decision being reversed.
Intention of AFCS
It is to avoid all this time and expense that the AFCS is designed to be objective and non-adversarial. It is supposed to be administered by case handlers / decision makers who know the Scheme inside out, know about the multiple injuries in the Scheme, and have expert medical advisers available when the injuries are more complicated.
What the Scheme is not supposed to have is medical advisers who think they know the law, don't know the law, and aren't experts in the relevant medical field, making decisions in claims that are then rubber stamped by so-called decision makers. The claims are not supposed to take an inordinate amount of time, they are supposed to be evidence based, and while they are supposed to be consistent, I doubt the Scheme's creators meant for decisions to be consistently shit.
As I suggested above, if you get an increased award at appeal, especially if it needs a tribunal, then the system has failed. There should be the odd one, every few years, where an error has been made, probably an error of law, or maybe where there’s been an error of fact, or there is a clear difference of diagnosis between expert clinicians who have physically met the claimant in a complex case.