Armed Forces Compensation Scheme under scrutiny

27/12/2007

The scale of compensation payable to injured Service personnel under the Armed Forces Compensation Scheme (AFCS) is under scrutiny after details of the tragic case of Lance Bombardier Ben Parkinson were highlighted by the media. Ben, age 24, a soldier serving on an operational tour in Afghanistan, sustained multiple injuries as a result of mine strike.

Ben submitted an application under AFCS, a scheme described by the MoD on its introduction in 2005 as a scheme that Gives modern, fair and simpler arrangements, which focuses help better on the more severely disabled. However, the award of £152,150 afford to Ben under the AFCS highlighted the fact that there are significant problems in the way in which the scheme assesses compensation for service personnel who have suffered multiple injuries and the scheme needed to be urgently reviewed. Ben's case has also brought into sharp focus the commitment and sacrifice members of the British armed forces make, what they may expect to receive when they are severely injured and whether the scheme introduced to compensate them is fair?

The AFCS was introduced in April 2005 and replaced the previous arrangements for compensation to injured service personnel under the War Pension Scheme.  The AFCS is a no fault scheme for injuries or illnesses caused by service in the Armed Forces.  There is no need to establish any breach of duty, but there is a need to prove on the balance of probabilities that the injury or illness was attributable or significantly aggravated by service.  The scheme is administered by the Ministry of Defence through the Service Personnel and Veterans Agency (SPVA) and the main elements of the scheme can be summarised as follows:

a) Service personnel can claim a tax free lump sum calculated on a tariff basis running from Levels 1 to 15, calibrated to an assessment of injury severity. Level 1 is the highest tariff covering the most severe injuries which include spinal cord injury (at or above vertebra C3) and brain injury with persistent vegetative state, while level 15 covers injuries such as minor burns and broken toes. It is understood that a Level 1 award has yet to be made.

b) The maximum lump sum payment which can be claimed under the AFCS is £285,000.

c) In cases of multiple injuries the Scheme only allows for 3 injuries to be claimed where all the injuries have resulted from the same incident.  The lump sum provided for each individual injury reduces in the following way. The first injury will receive 100% of the tariff value, the second 30% and for the third 15%.

d) A graduated Guaranteed Income Payment (GIP) can also be claimed once the serviceman/woman has left the Armed Forces. This is calculated from the daily rate of pay, age and the severity of the condition. The monthly sum is payable for life.

e) A claim must be submitted within 5 years form the day the injury occurred, or the condition was made worse by service, or when medical advice was first sought for an illness contracted through service, whichever is the later.

f) The scheme allows for awards to be made to dependants and widows/widowers.

g) There is an internal review and appeal procedure.

h) The scheme does not prevent a member of the Armed Forces from pursuing a civil claim for compensation, which could lead to a higher award in respect of damages.

On the 12^th September 2006 Lance Bombardier Ben Parkinson was on a patrol with his unit in Afghanistan when his military Landover struck a mine.  As a result of the incident Ben lost both his legs, sustained fractures to his skull, cheek bone, nose, jaw, pelvis and vertebra and suffered serious damage to his spleen and chest and also sustained a serious brain injury.  He is reportedly one of the most seriously injured soldiers to have ever survived a combat incident.  In total Ben sustained 37 separate injuries, but under the AFCS only three injuries could be assessed for the lump sum payment and he was awarded the sum of £152,150.  Ben's family requested a review, but the SPVA confirmed that their calculation was correct and the sum awarded to Ben, less than half the maximum amount under the scheme, was correct.  More cynical commentators compared the approach taken by the MOD at the time as being like an insurance company loss adjuster intent on minimising their liability.  In truth the SPVA were faced with a scenario that had not been anticipated when the scheme was originally established in April 2005.

How this situation was not anticipated when the AFCS regulations were first drafted and the scheme finally introduced in 2005? There appear to have been a number of factors that have culminated in highlighting the fact that the AFCS is not an adequate scheme to address the needs of the most seriously injured members of the Armed Forces.

Two points are worth emphasising. Firstly, over the last few years the UK has increased its commitment of UK troops involved in operations in Iraq and Afghanistan.  Both operational theatres are high tempo and for the troops on the ground this involves daily contacts with an enemy that does not use conventional tactics, whilst also using weapon systems designed to inflict the maximum amount of damage possible.  Secondly, this sustained threat level is combined with the significant improvements in acute medical treatment not only in field hospitals, but also in hospitals such as Selly Oak, Birmingham (the main hospital in the UK treating injured service personnel returning from Iraq and Afghanistan) and the military rehabilitation centre at Headley Court.  We are therefore seeing more and more service personnel surviving multiple injuries which previously would have been fatal.

As a direct consequence the AFCS was not designed with multiple injuries in mind. The regulations would only allow for 3 injuries to be assessed under the tariffs and the scheme therefore takes no account whatsoever of serious multiple injuries when awarding lump sum compensation. It was for this reason that the Parkinson family put forward their challenge of the AFCS on the following issues:

1) The scheme does not treat multiple injury cases fairly in only allowing 3 injuries to be considered under the AFCS regulations.

2) Taking into account that severely injured service personnel face the prospect of having to purchase adapted accommodation, mobility aids equipment and may have future care and rehabilitation needs the maximum lump sum payment of £285,000 is not adequate.

3) That any changes to the scheme be made retrospective.

In reply it is said that the lump sum payment combined with the lifelong GIP is more than sufficient compensation for members of the Armed Forces who knew what the risks were when they joined up.  However, a significant amount of money is often needed upfront in order to purchase adapted housing, mobility aids and appropriate transport. While the GIP does provide some financial security, that money is there to compensate the individual service man/woman for their loss of earnings and in most cases will cover the basic everyday expenditure that any able bodied person will face. What the GIP and the lump sum payment do not provide is adequate funds for the additional costs that will be occurred by ensure someone like Ben Parkinson to enable him to enjoy life in appropriate accommodation and with at least some degree of independence and dignity.

Whilst members of the Armed Forces accept the high risks of serving with the Royal Navy, RAF or Army it would not be unreasonable for them to expect a compensation scheme that would, at the very least, recognise their contribution to the services and place them on a comparable level with their civil counterparts. Had Ben Parkinson pursued a successful claim under the Criminal Injuries Compensation Scheme then he would have been subject to a scheme that would have allowed him to claim the reasonable cost of special equipment and care needs. It also worth noting that the maximum payment under the Criminal Injuries Compensation Scheme is £500,000, almost double the maximum lump sum award paid under the Armed Forces Compensation Scheme. If this he had pursued a successful civil claim for compensation then Ben would have been provided with sufficient funds that would have insured that he his life long needs would have been adequately addressed and he would have been provided with an element of financial security.

Following the public campaign by the Parkinson family to raise the issues involving the AFCS the Secretary of State of Defence announced in October 2007 that following a review the MoD would now bring in reforms that would improve the benefits under the AFCS. This included the facility to consider multiple injury cases under the tariff system, rather than the just making an assessment on the 3 worst injuries. Also that the maximum award of £285,000 would be considered for those Service personnel who were viewed to be the most severely injured.  Further, that the Government would review all cases of severely injured personnel going back to April 2005 and if considered appropriate their awards would be increased accordingly.

However, the MOD failed to raise the maximum lump sum payment of £285,000. Therefore while the reforms are welcomed they do not appear to completely address the immediate needs of badly injured Service personnel. Without financial security and adequate funds required for someone facing a life time of disability the burden of support and assistance will therefore fall upon family members, military charities and the state. The MoD has promised the Parkinson family that it will inform them of the details of the review and there is still the possibility of a legal challenge being pursued.

This is not a case of members of the Armed Forces and soldiers like Ben Parkinson jumping on a compensation band wagon. In some respects the word compensation used in the title of the scheme is misleading because what is required is a reasonable element of financial support for those individuals that have become casualties while performing their duty for their country. Even with the recent review and the improvements made for the AFCS there is a still a significant amount of work to be done. We must ensure that injured members of our Armed Forces are provided with adequate support and resources so that their long term needs are met. Calvin Coolidge, (13^th President of the United States) said, The nation which forgets its defenders will itself be forgotten. We seem to readily commit our already over stretched Armed Forces to which ever troubled hotspot in the world they are needed. If we forget those injured members of the Services that need the most support then we are failing our Armed Forces and this issue needs to be addressed as quickly as possible.

Author Andrew Buckham, Solicitor, Irwin Mitchell

Co Author Andrew Tucker, Partner, Irwin Mitchell

Both authors work as part of Irwin Mitchell's Armed Forces Personal Injury Team