Handling of AFCS claim and time taken
47. Mr O made his first claim in August 2013 and did not receive a final decision until March 2016. He appealed the decision, and the Tribunal overturned it on 17 March 2020, which he tells us is evidence that VUK made mistakes in its consideration of his claim.
48. VUK acknowledged Mr O’s AFCS claim in August 2013 and subsequently requested his case notes on 10 September 2013 from the hospital (Hospital A). The hospital sent these to VUK on 4 October.
49. VUK has provided us with a copy of an internal flowchart which explains the process it follows when considering a claim under the AFCS. The process flow shows us that upon receipt of a valid claim form, VUK should check if further information is required. This can include service medical records. There are various points in the process where VUK scrutinises the file to identify if further evidence is required. This includes medical input from a qualified medical adviser.
50. AFCS medical advisers are independent from the clinicians who treated Mr O when he was injured.
51. Once all medical information is obtained, VUK should reach a decision, calculate the payment, and notify the applicant of the decision.
52. The flowchart itself does not have any timescales for each action. VUK has also told us there are no published timeframes or targets for processing an AFCS claim. It explained all claims are dealt with in strict order of receipt. VUK says that during the evidence gathering process in this case, work was undertaken to ensure it had all the information needed to reach a decision and to ensure the case progressed as quickly as possible.
53. On 2 December 2013, VUK sent Mr O’s medical notes to an adviser for medical advice. VUK then received the advice on 5 December 2013.
54. On 12 January 2014, VUK subsequently made its interim decision, with a view to reviewing its decision in 18 months. It is worth noting VUK aims to make final awards as early as possible after a claim is made, to allow for financial certainty and to allow the individual to focus on moving on with their life. However, when treatment is ongoing and there is a level of uncertainty an interim award is made.
55. The JSP 765 AFCS policy on interim awards states where the injury is caused by service but has not reached ‘steady state’ because treatment is incomplete or the ongoing disabling effects are uncertain, an interim award may be made. At the date of decision, the most appropriate descriptor is selected and the period for which the interim award applies is specified. A final award will usually be made within two years, starting with the date on which the interim award was made, but exceptionally can be extended for a maximum of four years.
56. It is also important to note that there is no right of appeal with an interim award.
57. As such, there is no indication VUK failed to follow its process, as an interim decision was made before further evidence would be considered and a final decision made. VUK also made Mr O aware that it would take further time for the final award to be made.
58. Our Principles state that ‘organisations should deal with people promptly, within reasonable timescales and within any published time limits’. Although, VUK does not have any published timelines as already outlined, we have not seen evidence of avoidable delay and are satisfied that it did act promptly when making its interim decision, in line with our Principles.
59. The AFCS flowchart does not outline what should happen in between the interim award phase and the final award, other than the case being passed on to the decision implementation team. It also states that once an interim award is made, VUK will look at the case again within two years. It appears VUK met this deadline in this case. The flowchart also suggests a final decision will be made within four years of the interim decision being issued.
60. Following VUK’s interim decision it is unclear from the evidence available what happened, until 6 May 2015. On that date it appears VUK wrote to Mr O regarding his ongoing medical treatment and to obtain further information.
61. VUK has explained Mr O did not respond to its enquiry at this point. It subsequently referred the evidence it already had to the medical adviser.
62. On 25 September 2015, VUK wrote to Mr O again regarding his ongoing medical treatment.
63. During this time, from the evidence we have seen it does not appear Mr O responded to VUK or provided any further evidence for VUK to consider.
64. On 11 November 2015, VUK wrote to Mr O and explained he was entitled to compensation under the scheme. A lump sum of £31,240.00 was made. In its letter VUK stated ‘as there is uncertainty about the prognosis of some of Mr O’s fragmentation injuries to his forearm and hand, it has made interim awards’.
65. On 11 February 2016, the records suggest VUK sent Mr O’s file, including medical records, to an adviser for further advice. This advice was received on 15 February 2016. VUK requested further clinical records from the hospital on 17 February 2016, these were received on 29 February 2016, and additional medical advice was requested, which was returned on 8 March 2016.
66. On 10 March 2016, VUK wrote to Mr O with its final decision, explaining this did not change from its interim award(s).
67. This suggests that once VUK had all the necessary evidence, it acted swiftly and in accordance with our Principles. It appears that VUK was trying to obtain all the relevant information in trying to reach a final award decision. It also acted within the timeframes given with the AFCS flowchart, in which it states a decision will be made within four years, which it was.
68. Our Office contacted VUK to establish how it reached it final decision and why it felt there was no evidence to change its interim award. VUK explained the clinical records considered did not include records from when Mr O’s care was transferred to another hospital (Hospital B) after March 2015. VUK explained although, the previous clinical records referred to Mr O’s care being transferred, it did not know if he was receiving further treatment.
69. It is our view that VUK adhered to its internal AFCS flowchart as it attempted to check for all the latest evidence relating to the claim. VUK has accepted at this stage that the records it had access to did note Mr O’s care had been transferred to Hospital B and subsequently tried to contact Mr O about this. However, we have seen no evidence to suggest Mr O responded to its enquiries and confirmed his treatment was still ongoing. As such, VUK used the evidence available to it. Therefore, from the evidence we have seen, we cannot criticise VUK for the way in which it reached its final decision and therefore, we do not uphold this part of the complaint.
70. It also appears that VUK was proactive in progressing the case and we have not seen anything at this stage to suggest the actions of VUK caused avoidable delay in progressing Mr O’s claim at this point in the process. This is in line with our Principles.
71. From the information we have seen, it is unclear what happened following VUK’s final decision, until Mr O submitted a reconsideration appeal on 9 March 2017. JSP 765 AFCS policy states a reconsideration must be made within 12 months from the date of the final decision, which was done in this case.
72. We have not seen any evidence to suggest any delays during this period were down to VUK. Mr O had the opportunity to appeal VUK’s decision immediately, but it was twelve months before he submitted his appeal.
73. A reconsideration enables VUK to take a fresh look at the case, considering comments and any evidence received. Had an appeal been made sooner, it would have allowed VUK the opportunity to identify any errors it made much sooner and potentially allow it to put things right.
74. VUK then wrote to Mr O on 18 October and 15 November 2017 querying whether he was undergoing any further medical treatment for his condition(s) since making his appeal. This was seven months after Mr O submitted his appeal. At the time VUK said this was due to its high volume of work on reconsideration case.
75. VUK has told us Mr O responded to its request on 4 December 2017 and questioned why it needed access to his clinical records. His email stated:
‘I am not claiming a change in my condition since the original decision was made, I am claiming the original decision was wrong. You should therefore be able to make the correct decision by reviewing the records available to you in March 2016’.
76. We went back to VUK to clarify the reason for the seven-month period before contacting Mr O, but it did not provide any further information. There is no specific service standard in relation to timeframes on how long a reconsideration should take. Again, our Principles state an organisation should acted promptly and within reasonable timeframes.
77. We have not found anything to suggest this timeframe was avoidable or caused by anything other than demand on VUK’s service. This is because it is reasonable to expect there will be delays if there are higher volumes of work into the business. Mr O tells us that he is aware of other appeals which received a decision more quickly than he did. However, we do not know the circumstances of other individual complaints and so cannot comment on those matters.
78. It appears there was some confusion, as VUK mistakenly was under the impression Mr O received no further medical treatment, in light of the email he had sent it on 4 December 2017 simply stating his condition had not changed. This led VUK to use the medical evidence already on file when making its reconsideration decision on 13 December 2017. This resulted in the reconsideration decision remaining unchanged from its final decision made on 10 March 2016.
79. JSP 765 2.12 states VUK will routinely seek medical advice when assessing the claim or appeal including at the reconsideration and appeal stage. However, it is important to note there is no obligation on VUK to seek medical advice if new evidence is not available.
80. Based on the evidence we have seen it suggests VUK made its reconsideration decision without considering medical records from when Mr O’s care was transferred to Hospital B in March 2015. However, it does not appear VUK or Mr O was aware of this error. We have seen no evidence to suggest Mr O responded to any of VUK enquires in respect to ongoing treatment.
81. Moreover, it does not appear there was anything explicit in Mr O’s correspondence between the final decision on 10 March 2016 and the reconsideration decision on 13 December that allowed VUK to identify that it was missing the additional records. As such, we have not seen any indications of mistakes on the part of VUK in not obtaining further medical input as it understood there was no further medical evidence to consider. Therefore, we do not uphold this part of the complaint.
82. JSP 765 Armed Forces Compensation Scheme principles say decisions should:
• Be fair – the arrangements guarantee a fair deal for all those who have been injured, with an appropriate recognition for their sacrifice. The arrangements deliver consistent and equitable outcome, with due recognition to the needs of those most seriously injured who received higher awards than those less seriously injured.
• Be understandable, accessible and transparent – transparency is a key consideration with widely available clear information and guidance enabling claimants to successfully access the scheme. Information concerning claimants’ overall compensation package is to be straight forward and comprehensive to all
83. Given VUK maintained its award decision, and the fact Mr O remained unhappy with the decision, in line with the flowchart VUK prepared the case to go to appeal. Subsequently, it prepared its statement of case on 13 December 2017.
84. The statement of case is a set of documents containing all evidence VUK used when making its award decision. Photocopies are produced and sent to all parties involved, including the tribunal, prior to the hearing.
85. VUK prepared the documents for the hearing the same day it issued its reconsideration decision. We are satisfied it acted promptly and again in line with our Principles, ensuring the case was being progressing as quickly as possible.
86. As outlined earlier in this document, VUK submitted the case to the Tribunal in January 2018, and the hearing was due to take place on 11 June 2018. It is important to note that it is outside of our jurisdiction to consider the actions of the Tribunal. Therefore, we cannot comment on the organisation of hearing dates set by the Tribunal, which is outside the control of VUK.
87. VUK explained it had written to Mr O on 22 February 2018 and requested ‘signed authority’ to access his medical records regarding further treatment he had received. It says Mr O responded on 10 March 2018 but refused access to any further medical records until ‘certain actions or conditions were met’. We cannot fault VUK for any delays at this point.
88. VUK said that on 21 and 22 April 2018, Mr O provided supporting evidence to the Tribunal. VUK said it received these documents on 24 April and submitted these for medical advice on 9 May 2018, in line with its flowchart.
89. VUK again provided us with a copy of an internal flowchart which explains the process it follows for the War and Pension Scheme and all other Tribunals. There is no set timeframe in respect to how quickly an appeal should be dealt with. However, VUK has told us all appeals are dealt with in strict date order of receipt at each stage of the appeals process.
90. Prior to the date of the hearing the evidence suggests VUK had received additional medical evidence from Mr O on 22 April 2018, and so VUK then requested two new separate pieces of medical advice.
91. As such, the evidence indicates the actions of VUK were in line with the War and Pension scheme appeal flow chart guidance, as it sought further medical advice based on the new evidence.
92. On 11 June 2018, the Tribunal instructed the hearing to be adjourned as one of the panel members were believed to have known Mr O. The Tribunal instructed the new hearing for 2 April 2019. Again, it is important to note that we cannot criticise VUK for the length of time between hearings, as its outside of its control. VUK said the Tribunal instructed Mr O to supply further medical evidence for VUK to consider at this point.
93. VUK went on to say on 19 December 2018 it emailed the Tribunal chasing the further information. It says this was received on 18 February 2019 and a medical advice request was made, and a further supplementary response of 130 pages was created. VUK accepts this was subsequently submitted 24 hours before the hearing on 2 April was due to take place. It is important to note that it does not appear this information related to care provided at Hospital B, which was given after March 2015.
94. VUK has said in the bundle was a letter dated 31 January 2018, by the medical adviser that Mr O had not seen. There was also a response to Mr O’s list of descriptors that he says was not readily clear, and as such Mr O requested an adjournment. Mr O says this demonstrates the incompetency of VUK.
95. It is recorded the Tribunal adjourned the hearing again on 2 April 2019. Mr O has told our Office that this was because VUK submitted the bundle of new evidence the day before the hearing was due to take place. He tells us this meant he did not have enough time to consider the information and so he asked for the hearing to be adjourned.
96. Although we appreciate it appears the actions of the Tribunal meant Mr O did not have enough time to prepare for the hearing on 2 April, resulting in him requesting the case to be adjourned, we did not find this was due to maladministration on behalf of VUK.
97. The evidence shows VUK was trying to obtain further evidence and follow up medical advice, in line with its process and the Tribunal’s instructions. We can see that VUK needed to obtain the information before acting on it, which it was trying to do. Once it received that information, it needed time to consider it and take the appropriate action, which it appears to have done. Therefore, we have not seen anything to suggest maladministration.
98. Furthermore, there is no doubt Mr O’s case was complex and VUK was taking proportionate steps to progress the case as best it could. Each time new evidence was submitted, VUK needed the input of a medical adviser, which in turn slowed things down.
99. Following the adjournment on 2 April 2019, VUK received further medical evidence from Mr O and so sought more medical advice. VUK subsequently wrote to Mr O on 14 August 2019 and amended its final award. This is in line with the War Pension Scheme appeal flow chart which states: ‘if additional evidence has been provided the case is passed to the qualified medical adviser who made the decision being appealed to ask whether the additional evidence changes the decision’.
100. However, Mr O did not accept VUK’s new decision and informed the Tribunal he still wished to proceed to a hearing. The Tribunal went ahead on 17 March 2020, following which a new award was made. VUK received this final decision on 19 March 2020.
101. It is important to note that although the Tribunal reached a different decision to VUK, this in itself is not evidence of maladministration in the original decision. A Tribunal is set up to assess information independently with the benefit of wider judicial expertise and can reach a different decision to one that has already been made.
102. Mr O has said following the Tribunal’s decision, VUK failed to adhere to its recommendations in a timely manner and says he did not receive his new award(s) until September 2020.
103. VUK has explained Mr O had already been in receipt of a Ministry of Defence (MoD) compensation claim. It went on to say that, whilst the Tribunal decision had no effect on his lump sum, it did affect the GIP calculations.
104. On 16 June 2020, we can see VUK sent Mr O’s file to its policy team to calculate the GIP.
105. On 1 July 2020, VUK emailed Mr O for confirmation of his account details, to allow payment to be made. VUK has told us it then made a telephone call to Mr O as it did not receive a response from the email sent the week before.
106. It appears Mr O did not wish to provide his bank details at this point as he was not confident the calculations were correct. In response to the information he provided, we have seen VUK resubmitted the GIP calculations to its policy team to confirm whether they were correct.
107. VUK policy team confirmed the correct calculation had been made and subsequently VUK contacted Mr O on 28 August 2020 to confirm the GIP calculation was completed and correct.
108. On 31 August, Mr O responded to VUK maintaining his dissatisfaction and concerns about the GIP calculations. As outlined in the background section of report, VUK wrote to Mr O on 3 September explain how the GIP payments had been calculated and how they would be backdated from 4 December 2014.
109. Mr O responded to VUK again on 9 September 2020 with questions about the calculations. VUK contacted its policy team on 11 September to obtain answers to his questions. The policy team responded and VUK then wrote to Mr O on 24 September 2020 confirming the commencement date of the GIP was 4 December 2014. VUK also again asked for Mr O’s bank account details.
110. Mr O wrote to VUK again on 9 November 2020 raising concerns about an underpayment. VUK responded on 13 November, apologising for the underpayment and stated the arrears owed to Mr O would be paid as soon as possible. The letter also outlined the revised annual GIP amounts.
111. From the information, we have seen there was an initial period of three months before VUK acted on the recommendations made by the Tribunal. However, after this it appears VUK was actively trying to progress the case and ensure its GIP calculations were correct.
112. As such, although, we appreciate the frustration Mr O experienced as a result of it taking VUK three months to progress his claim, we have not seen anything to indicate maladministration by VUK. As previously outlined, there is no set timeframe on how long VUK has to act, and we note that following the Tribunal’s decision VUK needed to carry out administrative work to action its directions. We have not seen any evidence of avoidable delay here, and so we are provisionally satisfied VUK acted in line with our Principles of Good Administration.
113. In relation to the underpayment identified by Mr O, although we appreciate this would have caused him further frustration and upset, especially given the length of the whole process, we are satisfied VUK took swift action once it was made aware of the problem and apologised for its error, rectifying the matter within four days of Mr O raising the issue. We do not consider this to be so significant an error as to indicate maladministration, and we note it adhered to our Principles of Good Administration in putting things right.
114. In summary, we have seen nothing to suggest VUK failed to act in line with its process when dealing with Mr O’s AFCS claim. There is no doubt that the case was complex, and the claim process can be lengthy, even if followed in line with guidance.
115. Once more, there is no doubt the process between Mr O making his AFCS claim and the case being concluded took a considerable amount of time, but we are satisfied there was no indication of prolonged delay on behalf of VUK.
116. We note that the Independent Complaints Panel (ICP) found several delays in VUK’s handling of Mr O’s complaint and made recommendations. It also found issues with poor explanations regarding delays and communication. The report also outlined concerns with VUK not taking steps to improve its processes.
117. We have taken this into account when exploring the issues raised in this complaint. We are an independent body and have undertaken our own consideration of Mr O’s complaint, including a detailed review of the evidence available. Having done so and having had the benefit of being able to discuss these matters with both VUK and Mr O, we have reached a different view.
Interest payments award decision
118. Mr O has also raised concerns about not being awarded interest on payments he received following the Tribunal’s decision in March 2020. Specifically, he believes he was owed interest due to the length of time it took VUK to reach a final award.
119. VUK explained, following the Tribunal’s decision, it would not pay interest on the money awarded as Mr O had received a lump sum payment for the tariff, he was awarded under the AFCS.
120. From the evidence we have seen, there is nothing to suggest VUK should have paid interest on payments made to Mr O. As outlined in paragraph 14, GIP is index linked and therefore any changes in inflation are already taken into account.
121. Additionally, although we appreciate it took several years for Mr O to receive his GIP, we have not seen that any significant delays were caused as a direct result of maladministration on behalf of VUK. Therefore, we would not expect it to award any interest on the Tribunal’s award as there is no error on its part causing financial loss to Mr O. This is in line with our Principles of acting fairly and proportionately.
122. As such, we do not uphold this element of the complaint and therefore, based on all the evidence we do not uphold Mr O’s complaint in its entirety.