Sunday July 2nd 2023
Midlothian View reader John Cole, (on the left) in his army days.
Midlothian View Reporter, Sofia Villegas, takes an in-depth look at a Military pension issue that goes back to 1975.
There is an pension inequality within the present Armed Forces that is affecting an estimated 30,000 Military Veterans.
The root of the issue dates back to 1975, when the Armed Forces Pension Scheme 1975 (AFPS75) came into effect, leaving thousands of veterans ineligible to receive what the government website quotes as “one of the most generous pensions in the UK” that “fairly reflect the unique sacrifice they have provided their country”.
A cohort of Military Veterans has since formed a Facebook Group (FBG) to highlight the issue and are campaigning for fair treatment.
Midlothian View spoke to John Cole, leader of the cohort and military veteran, “It must be remembered that we were on call for 365 days a year, 24 hours a day, no paid overtime, no time off in lieu of a weekend. In other words, we were 100% a soldier from that point of view. No problem there. We knew that was what we were going in for. The problem occurred when many of us found out that we lost our pensions.”
Scheme, Act & Warrant – The Social Security Act 1973
Before 1975, servicemen were required to complete 22 years as an ordinary rank and 16 years as an officer to be entitled to a military pension. A substantial change to this condition was brought about by the Social Security Act of 1973 (SSA73) effective date 6 April 1975. It stated that early leavers would access a preserved pension if they were over 26 years of age and served for five years. Subsequent acts removed the age requirement all together and reduced the years of service from five to two. It is understood that as there were no declared commencement dates to the amendments the effective date reverts to when the SSA73 received Royal Assent namely 6 April 1975.
In turn the AFPS75 should have been amended to reflect the removal of the 26 years/5-year service rule with an effective date of 6 April 1975. Therein lies the problem this has not occurred, had it done so then the pension inequality of today would have been partly solved meaning thousands of veterans would not be facing this pension predicament.
Prior to the SSA73 becoming law employers were mandated to regularly inform their employees on any updates. The Ministry of Defence claim all members of the Armed Forces Personnel were informed of the introduction of the preserved Pension rights via a leaflet produced in March 1975. However, no one has recollection of seeing or being in possession of this leaflet. During the period when the MOD should have been regularly informing their employees, they chose instead to release 28,000 personnel during the period 1973 – 75 without informing them of the impending changes meaning those early leavers within the 28,000 would not now be eligible to receive an Armed Forces Pension.
The Army Pension Warrant 1977 – effective date 1 April 1975
The Army Pension Warrant 1977 is a Royal Warrant and Schedule that governs the Non effective Pay of The Army (Service Retired Pay, Pensions, Gratuities etc). It is a Prerogative Instrument, which in turn means that for the armed forces it is the Monarch who is the sole authority. Royal Prerogative is the term used to describe powers held by the Monarch without the consent of the House of Commons or House of Lords.
The Warrant states that a soldier may, provided he has completed 2 years reckonable service be granted a preserved pension. The APW77 itself clearly states that it must be “obeyed as the sole authority on the matters herein treated” that it clearly overrules the SSA73 yet to date Ministers have chosen to ignore both the existence and significance of the APW77.
House of Commons Briefing Paper 1151
The House of Commons Library produces briefing papers containing politically impartial analysis and statistical research on a given topic and are often the main source of information for MPs. Briefing Paper 1151 explains “The Armed Forces Pension Scheme – Preserved Pensions”. It has been found to contain some incorrect information.
First, it reports that the Armed Forces Pension Group failed in 2003/04 with a legal challenge regarding the Policy on Preserved Pensions for pre-1975 leavers. In truth the “Legal Challenge” was in fact a High Court Restitution Claim for recompense of abated pay.
Briefing Paper 1151 also includes a statement made by the former Minister of State for the Armed Forces, Adam Ingram who in a 2007 House of Commons debate said: “The real test is the legal one. The issue has been legally tested, and a claim for pre-1975 pension entitlement for the armed forces failed in the High Court in 2003, in the House of Lords in 2004, and in the European Court of Human Rights in 2006”.
That it further failed in House of Lords in 2004 appears to be incorrect as the main topic of that debate related to War Widows Pensions not pre-1975 pension entitlement, and where he voices that the claim failed in the European Court of Human Rights in 2006 is also incorrect as it was declared inadmissible to begin with.
The dilemma on abated pay
Not for the first-time pension controversy has arisen within Government. In 1964, a group of MPs were excluded from their pension scheme, as it was only accessible to those who had served after the scheme’s commencement date. That same year however, a solution was found, whereby these former politicians were given “periodical payments” instead.
One may ask, what seems at plain sight to be a remarkably similar, if not identical issue why were equal actions not applied to those Military Veterans omitted from their Pension Scheme? The main answer to any confusion appears to lie within the quandaries of contributions. Unlike the MPs scheme, the AFPS is said to be non-contributory as no money is formally deducted from their salaries. However, Lord Hudson of Astley Abbotts debated against this claim in 2010, explaining to the House of Lords that there was a 7% abatement to each servicemen salary that funded Armed Forces Pensions. The only difference being that unlike formal contributions it was a deduction that was made before the salary become gross pay in turn funding the pensions of those who were deemed eligible.
Mr. Cole is disheartened by this, saying “Of course, our contribution was never noticed, because an abatement was never recorded on any pay documents. It was taken in effect before we received our money.”
This issue has been taken to the High Court, Mr. Justice Stanley Burton dismissed the claim, as a contributory pension is only so when an employee is aware (which servicemen were not aware of) that a part of their salary will go towards funding his pension. On his ruling he said, “No such deduction was made in the present case. The pension was non-contributory. Much as I understand that the claimants may feel they were misled, in my judgement that characterisation of the pension scheme adds nothing to their claim.”
DENY, DELAY, HOPE YOU DIE
During House of Commons debate 28 March 2022 Owen Thompson, Midlothian MP and SNP spokesperson for armed forces and veterans, called for the Government to conduct an independent inquiry regarding War Pensions and Armed Forces Compensation payments as the current process is failing. Mr Thompson stated that he had been informed by one Veteran, a former Major: “That Veterans UK have followed an unofficial policy of Deny, Delay, Hope you Die.”
“Some veterans have life-changing injuries and illness, both mental and physical, from their experiences in service. The very least we should expect from government is that veterans and their families will be properly looked after and given the support they need. I have heard too many reports of delays and difficulties when veterans make claims for compensation, war pensions and other financial support. The process – blighted by red tape – seems designed to deny claims and save money rather than serve veterans well.”
Of note is that Veterans UK also administer the Armed Forces Pension Scheme.
Throughout the years, multiple members of government have been contacted regarding the matter, yet with no success. Some of the officials made aware include former Veterans Minister, Tobias Ellwood, The Defence Committee, former Minister of State Anna Soubry, current Veterans Minister, Johnny Mercer and former Prime Minister, Theresa May to name but a few.
In 2019, Primer Minister Boris Johnson said, “A stain on our national conscience that any veteran should be abandoned by the country they have fought so courageously to protect. I salute the work of our Armed Forces and that’s one of the reasons we are here today announcing a new Office for Veterans Affairs (OVA) to look after people who serve our country, their housing, their healthcare. Make sure that they never, after they’ve left the service of Her Majesty the Queen, after they’ve left the Armed Forces never face any disadvantage for the commitment they have made.”
At present, the OVA has still not dealt with the Pension Inequality of Ex-Armed Forces personnel.
Regardless of commencement dates, contradicting schemes, Social Security Acts, Pre, or Post April 1975 etc with the Government lauding their current “Levelling Up programme”, which has Fairness and Equality at its heart and soul, the FBG questions how denying some veterans a pension whilst giving it to others can be viewed as fair. They all served albeit at separate times for the same country and Queen as did those who benefit from an Armed Forces Pension.
“All the ministers just love to talk, but they don’t act on anything,” Cole added.
The FBG still has strength within it, plans on fighting for their pensions remain strong. A petition for Veterans prior to 1975 to be included into the AFPS, has as of May 2021, collected almost 30,000 signatures. The process is proving to be lengthy for veterans for whom unfortunately, time is running out – certainly, a case of Deny, Delay, Hope you Die.
Mr. Cole said “I’ve got people on my petition this morning. I have 30,899 signatures and some of them are really on the breadline. And this pension, which was taken from them, if given to them, would put them in a situation where I always say they can afford a torch at Christmas.”Tweet Share on Facebook