Dáil Éireann debate -
Friday, 6 Mar 1953

Vol. 136 No. 16

Committee on Finance. - Military Service Pensions (Amendment) Bill, 1952—Money Resolution.

Minister for Defence (Mr. Traynor)

I move:—

That it is expedient to authorise such payments out of moneys provided by the Oireachtas as are necessary to give effect to any Act of the present session to amend theMilitary Service Pensions Acts, 1924 to 1949.

In moving this Resolution, I would like to inform the House that the Government examined the debate which took place in regard to military service pensions on the Second Stage of the Bill. They are satisfied that the Bill represents the limits to which they can go in respect of payments. They are satisfied that the method of assessing the pensions based on service is a fair method; that similarly circumstanced applicants are provided with the same opportunities for presenting their case to the Referee and Advisory Board.

Arising out of some of the statements made on the Second Stage of the Bill, I got in contact with the Referee who assured me that, while he is the deciding factor and has to accept responsibility, every decision taken is one arrived at by a majority consisting of himself and the members of his board. Service is based on the evidence tendered by the applicant and by any witnesses whom he wishes to bring forward.

There is one point which the Government considered favourably. It was a matter raised by Deputy Cowan, I think, in regard to pensions to individuals who were notionally discharged in order to secure a permanent commission. While they are satisfied that the decision was based on the terms of the 1924 Act and that there was nothing unjust in the decision taken by the officials, in their opinion it was unfair inasmuch as it could hardly have been in the minds of the framers of the particular Act to have notional discharge deemed permanent. From that point of view I was given permission to bring in an amendment which is down here in my name. This amendment will restore these men to the position enjoyed by their ordinary retired colleagues of the permanent Army.

There is only one other point I should like to raise. I would like to make an appeal to the House to deal with this Bill as expeditiously as possible. The end of the first quarter of the year comes, as Deputies are aware, on the 31st of this month. If it ispossible to get the Bill dealt with speedily in this House and in the other House my officials, in reply to a question of mine, assured me that, given some little time, it would be possible to make these payments, including the retrospective payments, available by the end of the month. On that aspect alone I would appeal to the House to deal with this particular matter as expeditiously as it can do so.

General MacEoin

I hope the Bill will get a speedy passage. Neither I nor my colleagues intend doing anything that would hold it up. I am glad to hear from the Minister that the decision upon all applications by the Referee is a majority decision, because there is still a feeling that, no matter how fair the Referee may be, he is deciding appeals from his own previous decisions. If, as the Minister now says, the decisions are majority decisions, while that would satisfy me, it may not satisfy a number of the applicants. It is important that not only should justice be done in these cases, but that it also should appear to be done. I have heard of cases being turned down by the Referee reporting to the Minister that there was not a prima faciecase to be heard. I do not think the Referee should do that. In every case brought before the Referee, the applicant should be given an opportunity of coming up to make it.

I do not think the Minister is meeting the wishes of the House when he sends out this notice that the Referee has reported to him that prima faciethe person is a person to whom the Act does not apply, and therefore no award should be made. That is not good, as the person has been condemned or refused unheard. I would ask the Minister to reconsider that aspect of the matter.

Mr. Hickey

I understand there is a clause in the Bill that, where a man has service as a public servant and has three or four years' military service pension, three or four years are deducted from the service he gave in a public institution.

Mr. Traynor

Is the Deputy referring to local authorities?

Mr. Hickey

Yes.

Mr. Traynor

It does not apply to local authorities.

Mr. Hickey

Is that clause still retained in the Bill?

Mr. Traynor

Yes, but it does not apply to local authorities. It applies to civil servants.

Mr. Hickey

I do not mind who it is, it is hardly worth while penalising them to that extent. Everyone else gets the benefit for full service and I do not see why they should not get it.

Mr. McGrath

Does it apply to people like postmen?

Mr. Traynor

Yes.

Captain Cowan

And teachers—but we got it straightened out in the case of teachers.

Mr. Traynor

You cannot pay two pensions for one period—that is ordinary common sense. If a man is getting a pension for a particular period of service in one respect he cannot be given it again for the same period in another respect.

Mr. McGrath

But he gets the option of selecting whichever is more beneficial to himself.

Mr. Hilliard

The Minister should have adverted to the fact that in the decisions of the Referee there was no discrimination between one area and another, that the Referee was concerned only with whether the applicant had continuous active service or not over the period named in the Acts to qualify him for a military service certificate, regardless of what his service was. The allegation was made during the Second Reading that there was discrimination between one area and another. As far as my experience goes, I have not found any discrimination whatever exercised by the Referee and his committee or by the Board of Assessors—and I think the Minister should have made that point quite clear.

Captain Cowan

I appreciate very much the action of the Minister and the Government in making the amendment to Section 4 of the Act of 1924. It clears up the point which was debated here on the Second Reading and enables a soldier who is promoted from non-commissioned rank to commissioned rank to get his military service pension at the rate applicable to the highest rank he reaches when his services as an officer are finally ending. It applies to a number of people and certainly is an act of justice.

Mr. Dillon

The highest substantive rank or the highest acting rank?

Captain Cowan

The highest substantive rank—in other words, the rank which he holds on the date of leaving the Army. In any case, I think acting rank has almost disappeared.

Mr. Dillon

Since the emergency.

Captain Cowan

This is an excellent improvement and the Minister and the Government are to be congratulated. I had some recent experience of appearing before the Pensions Board in regard to applications and the feeling I have is that everything that could possibly be done to aid an applicant is done by the board. The Referee goes out of his way to assist applicants in making their cases. It is only right that that should be stated. There is no question of applicants being taken sharply. The previous documents, sent in as far back as 25 years ago, are brought to the notice of the applicant, with the purpose of assisting him in making his case. The Referee takes occasion to draw attention to the vital aspects it is necessary to cover, so as to give the applicant and his witnesses an opportunity of giving evidence on those vital points. The Military Service Pensions Board as it is operating at present is certainly a court of justice in the real sense of the word. The announcement by the Minister, that the decisions taken by the Referee are majority decisions of the board, will be welcomed by everybody.

While I have a considerable amount of sympathy for the point mentionedby Deputy MacEoin that an applicant should have the right, whether he has a good case or a bad one, of making it himself to the board, I can see some difficulties, but it is a question whether the difficulties are more important than the fact that the man would like an opportunity of making his own case. Take a man who makes application for a pension and whose application shows clearly that he is not a person to whom the Acts apply. It seems a waste of time to call him up and bring witnesses before the board.

General MacEoin

If the applicant is a good writer and knows how to make his case on paper?

Captain Cowan

I am on the Deputy's side in a general way but I am pointing out this difficulty. If his application shows clearly that he is not a person to whom the Acts apply and he is notified so by the Referee——

General MacEoin

No; by the Minister.

Captain Cowan

——by the Minister, on the report of the Referee, I am not sure that that is the end of it.

General MacEoin

It is.

Captain Cowan

I think that if he is still able to produce evidence, that would be considered. At the moment there are very few people who apply for a pension who have not the benefit of the assistance of men who are very experienced in the operation of the Military Service Pensions Acts. In the early days, when applications were being made under the 1924 Act, people did not worry very much about the precise wording of the Acts and quite a number of people who should have received certificates did not receive them.

Under the 1934 Act, the system was operated differently. Brigade and battalion councils and committees came together and studied the Acts. They were advised as to the vital parts of the Acts and they were able to make their cases much better than the people who made them under the original 1924 Act. Under the recent Act again, applicants, in the main, havethe assistance of brigade and battalion advisers and generally their cases are put forward to the board in a very good way; but I do agree, in the main, that even if these applications which are sent in do not on their face seem to be applications that could possibly be successful, and even if they are deferred, the man feels that it is like going to court in the ordinary way. If he gets a chance of going into the witness box and telling his story, he does not mind whether he wins or loses the case.

If a sensible applicant goes before the board and offers evidence to the Referee and the board and if it is then explained to him that he should have this, that and the other to comply with the Act he feels that at least he has gone to the last court of appeal and is quite satisfied. To that extent, I would support the suggestion that persons should have a right and an opportunity of going before the board, if they want to go, having been informed by the Minister, as a result of the Referee's report, that it is extremely unlikely that they could possibly qualify for a pension on the evidence they have submitted in writing. Many of them will be sensible enough not to go to any expense with regard to it but those who want to go to the expense of travelling would get the opportunity. I hope the Bill will get a speedy passage so that it will be in operation before the end of the month.

Mr. Dillon

I do not know that we ought to be paying tributes to arbitrators or people of that kind at all on an occasion of this kind, but it may be relevant to say what I have often wanted to say, that, as an ordinary Deputy dealing with the Department of Defence, I have always found the officers of the pensions branch to be as careful of the interests of persons entitled to military pensions as their own best advocate would be. It is right that that should be so, and it is a good thing that we have managed to establish in the pensions branch the principle that one should bring the name of a person who believes himself entitled to a pension to their notice.One has the feeling before the transaction is finished that every conceivable precaution will be taken to see that he will get a pension, if he is entitled to it, and, furthermore, that he will not get a pension, if he is not entitled to it. Many a man, in my experience, has been helped to get his legal rights by the Department when all other sources have failed him.

I am told, since the foundation of this State, about 181 serving members of the Army have been injured in the course of their employment. These include the cases of men who have suffered injury in air crashes and other work involving active service in the Army not necessarily in emergency times.

Captain Cowan

That is not covered by this Bill.

Mr. Dillon

All I am asking is whether provision is made under the pensions code——

Mr. Traynor

That is being dealt with in an Army Pensions Bill which follows this Bill and which is related to it. It is not relevant to this Bill.

Mr. Dillon

That is the very information I wanted. If no provision is made in this, there is a scheme afoot to deal with that somewhat anachronistic situation in a subsequent Bill?

Mr. Traynor

Yes.

General MacEoin

Is it not correct that, when the Minister sends out notice saying that the Referee has reported that a person is a person to whom the Act does not apply, that is final and conclusive?

Mr. Traynor

Following the remarks made by Deputy MacEoin and Deputy Hilliard, I went to the Referee, although I was satisfied from past experience that the position was not as suggested by Deputy MacEoin, and I was assured that the question of major engagements does not arise at all. Active service, in the view of the Referee, and, I understand, of all those who have acted as such consists of continuous general volunteer service. and if a genuine volunteer can provecontinuous active service of that type, his case can be proved to the satisfaction of the Referee and the board. There is no question, and never has been any question, of a demand for a particular type of major engagement which was referred to here and I think exists only in the minds of the Deputies who coined that particular phrase.

In regard to prima facieevidence, that again is decided by the Referee and the board and it is decided by a majority of the board. In fact, this is what the Referee has informed me: if there is one person dissenting in regard to whether a case isprima facieor not, the benefit of the doubt is given to the applicant, and, if it is necessary to bring him along, that can be done. As has been mentioned, the cost to the applicant, with practically no possibility of proving his case, would be such that it would be very unfair to put him to the expense of coming from some distant part to where the board was meeting, and therefore when the case of the individual is examined by the board and the Referee and the majority decision is that he has no case, the application is dismissed. If every case —this is the point which I think is being made—whetherprima facieor not, is to be heard orally, the board would be sitting on these cases for the next ten or 12 years. There is no necessity for delay to that extent when the Referee is satisfied that these individuals cannot produce any further evidence.

General MacEoin

You will hear further of them.

Mr. Traynor

That is the position anyhow.

Mr. Dillon

I would advise you strongly to afford them some chance, sometime, somehow—even at the end of the list—to make their own case. The countryman in this country likes to make his own case.

Mr. Traynor

I think that opportunity is afforded.

General MacEoin

No. Take, for instance, the hearing of cases in Longford.The Referee was in Longford town. Applicants from around the neighbouring parish of Killoe, five miles out, got no opportunity although they have as good service as that given by men who were heard. Therefore, there is the argument that they did not get fair play. You will have this thing all over again.

Mr. Traynor

I got a long memorandum on this matter. It represents the views of the Referee and the board. The Referee adverted to the statement that of two particular individuals with identical service, one got the pension while the other did not.

General MacEoin

I did not say "pension". I said "a hearing".

Mr. Traynor

The Referee says that there is no substance whatever in that assertion.

General MacEoin

I did not say that.

Mr. Traynor

I want to tell the House something now—and it is something that I would not know, I suppose, except as a result of my inquiries. I more or less induced the Referee to give me this information. I knew, to some extent, how the applicant is represented on the board. He is represented on the board, in the first instance, by two senior Old I.R.A. officers. These men are there to look after the interests of the applicant. I know that they do that effectively. But, in addition to that, there is a representative of the Department of Defence and a representative of the Department of Finance. I took the opportunity, when I resumed office, of appointing a representative of the Department of Defence—and the man that was appointed was a pre-Truce Volunteer. That was done deliberately, in order to ensure that the weight of sympathy on the side of the applicant would be to his benefit.

I have now discovered that there are four pre-Truce Volunteers. The Referee is a pre-Truce Volunteer. Surely, with that weight of four pre-Truce Volunteers on a board representing the Minister for Defence, the Minister forFinance and the applicants, justice is bound to be done. The sympathy will always be on the side of the applicant. I think it would be foolish to provide a hearing for every man even if he has not the faintest hope——

General MacEoin

How can that be established in advance?

Mr. Traynor

I would point out that the men who are applying under this Act—and it is not an appeal Act: it is merely a petitioning for a rehearing— have had opportunities of proving their case already.

Mr. Dillon

Have they ever been allowed to appear personally?

Mr. Traynor

The position is that the 1949 Act provides a rehearing for all those who failed to secure pensions under the 1924 and 1934 Acts. It must be presumed that these particular individuals applied, were heard, and failed to secure a pension or a certificate under either of these Acts.

Mr. Dillon

Is the Minister satisfied that every fellow had a right at least once to put his own case?

General MacEoin

No, he had not.

Mr. Traynor

I could not say definitely that everyone was heard. When Deputy Dr. O'Higgins was introducing the 1949 Bill he assumed—not, perhaps, accurately—that the people who would apply under it would be those who were heard and who failed, and that people who were turned down completely and entirely because they had no case would not be——

Mr. Dillon

As an outsider to all these transactions, might I be allowed to make this modest request? Would the Minister go so far as to say that any person who had never been heard himself in any earlier proceedings would be allowed an opportunity of being heard before being finally rejected under this Act? It is a great hardship on the average countryman to feel that his case is irrevocably rejected when, at the same time, he has never been heard by any of thevarious tribunals who have looked into such matters.

Mr. Traynor

Would the Deputy say that, despite the unanimous opinion of the board that a man has no case——

General MacEoin

Yes.

Mr. Dillon

I know more about the countryman's mind than all the boards put together. I do not make the case that it is a wholly reasonable demand. Life would be too perfect if everyone in this world were reasonable. We are not reasonable. I think a man certainly has an understandable grievance, even if it is not a reasonable grievance, if he has never been heard on his own behalf.

Mr. MacCarthy

I should like to support that point of view from the following aspect. A great many Volunteers who gave service may not be sufficiently qualified for a pension but the fruits of all their efforts, as far as officialdom is concerned, are that they get a notice to the effect that the Act does not apply to them. Even though they would not get a priority, or anything, in consideration of their case, I think that at some time or another— perhaps when the load lightens—their cases should get some consideration.

Mr. Hilliard

Deputy Dillon may not be aware that the applicant—if he gets the opportunity for which Deputy Dillon is pressing—will have to provide his own expenses as well as those of his witnesses in attending the board or the Referee.

Mr. Dillon

If the Minister would go so far as to say that he would allow anyone to be heard now who had not been heard in the past——

Captain Cowan

It is an expense on the applicant, not on the State.

Mr. MacCarthy

If there are hearings throughout the country—as there are, occasionally—then that burden on the applicant is not so severe.

Mr. Dillon

No man was ever refused his rights in this country for money. Let us get the right for him first—the right to be heard once. That is a modest plea.

Mr. Traynor

I will bring all these views to the attention of the Referee. It would be the matter of hearing these cases, to a considerable extent. Deputy Hilliard says that the expense is on the applicant, not on the State. If a man wishes to be heard, and come along, he must pay all his own expenses. However, the views expressed by the House will be brought to the attention of the Referee.

Mr. Dillon

That is very fair. May I direct the Minister's attention to the taking of one step between now and the Bill going to the Seanad so that the notices which have issued will not have final effect under the Act?

Mr. Traynor

That is another difficulty.

Mr. Dillon

It is a very little difficulty.

Mr. Traynor

What I mean is that the House will have to be satisfied with the decision taken by the board. The board has been there for a considerable number of years, and if it is satisfied that there is no basis for hearing a particular individual, I do not think the House should insist on his being heard. We all know that "hope springs eternal," so that there must be quite a number of people living in the hope that they will be able to convince the Referee that they are entitled to a pension. On the evidence, however, which they submit to the board—it is on that the board makes its decision—there is not the slighest possible hope that they can succeed in their claim. It would, therefore, seem to me unreasonable of the House to demand, seeing that the board had come to a unanimous decision, that these people must be heard.

Mr. Allen

If they were not heard before.

Mr. Traynor

However, all these views will be brought to the attention of the Referee.

Mr. Allen

Most dissatisfaction came from people who never got an opportunity of giving evidence before theboard. I think that, if these people re-apply now, they should be given an opportunity of giving their own evidence.

Mr. Hilliard

Can the Minister tell us how many cases have been marked non prima facie?

Mr. Traynor

Up to date, something in the neighbourhood of 6,000.

Mr. Hilliard

How many cases will be heard?

Mr. Traynor

There are upwards of 16,000 applicants. The board has been making an examination of these for a considerable period. They are so to speak segregating the chaff from the grain. Those with a prima faciecase, or a reasonableprima faciecase, are put into one category and those with noprima faciecase are notified, in due course, that they are not persons to whom the Act applies.

Mr. Dillon

A great many people without a prima faciecase have, in fact, received at some time an opportunity of speaking for themselves so that all the nonprima faciecases would not have to be reheard—only those who never had a chance of speaking for themselves at any stage.

Mr. Traynor

That is possible, but I am not able to say so definitely.

As there is not an amendment dealing with Section 4, to which Deputy Hickey referred, and as it is a very difficult section for the ordinary Deputy to understand, I think I should make it clear what the position actually is. As regards Section 8 (2) of the 1924 Act and Section 20 (2) of the 1934 Act, the proposal that the same period of service should count for military service pension and for superannuation cannot be accepted. It is a cardinal principle of superannuation that the same period of time may not reckon as service for two pensions. This principle has been accepted in relation to military service pensions since the outset and it cannot very well be changed now.

Persons concerned have, however, a very valuable option. If they wish to retain their military service pension,only the actual period of military service is deducted from service for superannuation. If, on the other hand, they are prepared to forgo military service pensions the notional military service can be added for superannuation purposes. Thus for instance, in the case of a person who had full military service from 1916 to 1923—if he keeps his military service pension, only the actual period, approximately seven and a half years, is deducted from his service for superannuation. If, on the other hand, he surrenders his military service pension, the full notional period, 14 years, is added for superannuation. Thus, he exercises the choice as he thinks best. Only 14 or 15 persons—I understand the number is now only 12 because two or three have since died—who had small military service pensions found it better to surrender these pensions, and they are now being given an opportunity, by Section 4 of the Bill, of reversing their original option in the light of the increases in military service pensions and the removal of abatement. That appears to provide better for these individuals, and even though they did exercise an option, they are now being given the opportunity under Section 4 of reconsidering their position.

The provisions of the Military Service Pensions Acts in this matter apply only to persons who were in the public service and resigned and dismissed R.I.C. There are similar provisions affecting teachers, members of the Garda and Army personnel in the pensions codes governing the superannuation of these classes, so that it is not something new or something that has been introduced specially in respect of the I.R.A. and civil servants. The provisions do not, as I mentioned to Deputy Hickey, apply to local authorities, which are apparently completely free in that respect. I think that the other matters which were mentioned can be dealt with when we come to consider the Bill proper.

Mr. J. Flynn

The Minister referred to a prima faciecase where one member of the board dissents as regards an award. Does not that apply to cases coming under the 1924 Act?

The Referee on the present board has a different approach altogether from that of the Referee who preceded him on this whole matter. The present Referee took the view that he was dealing with the dregs and the cast-off applicants from the earlier period. I think that is the kernel of the whole thing. His approach is to the detriment of the man anxious to make his own case by relying on his own evidence. I think that if the Minister would examine that aspect of the question we could deal with the points which were raised by Deputy Dillon and Deputy MacCarthy. We would then get an approach quite different from that which is there at present.

Question put and agreed to.

Resolution reported and agreed to.