Appeals
 

Appealing

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.

Civil Appeals

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.