Pension Provisions

Dáil Éireann Debate, Thursday - 27 January 2022

Thursday, 27 January 2022

Questions (96)

Bernard Durkan

Question:

96. Deputy Bernard J. Durkan asked the Minister for Defence the number of situations that have arisen in which members of the Defence Forces who were injured in the course of their duties and subsequently awarded damages by the courts are now having the value of the awards recovered by way of reduction in their pensions; if it is recognised that such steps to recover moneys is arbitrary; if the full extent of these situations will be re-examined as a matter of urgency; and if he will make a statement on the matter. [3875/22]

Oral answers (10 contributions)

Deputy Bernard J. Durkan

This is an old chestnut. I have raised questions about this many times over the years. It relates to former or retired members of the Defence Forces who had been awarded damages in respect of injuries incurred during their service. They are now having the awards recovered, in whole or in part, by a reduction in their pension entitlements. I feel that this is wrong and I ask the Minister to address it.

Deputy Simon Coveney

I thank the Deputy. The Army Pensions Acts provide for the grant of pensions and gratuities to former members of the primary Defence Forces in respect of permanent disablement due to a wound or injury attributable to military service, whether at home or abroad, or due to disease attributable to, or aggravated by, overseas service with the United Nations. Section 13(2) of the Army Pensions Act,1923, as amended, provides that:

Any compensation which may be received from or on behalf of the person alleged to be responsible for the act which caused the wounding […] may be taken into consideration in fixing the amount of any pension, allowance or gratuity which might be awarded under this Act to or in respect of such person. If such compensation is received after the award of any such pension or allowance, the Minister may review the award and, having regard to the amount of such compensation, either terminate or reduce the amount thereof.

The underlying objective of section 13(2) is to prevent double compensation in respect of the same disablement. Compensation of the kind in question would usually result from a civil action for damages against the Department of Defence but compensation received from any other source is not excluded. The provisions do not apply to disability pension cases related solely to disablement due to disease attributable to or aggravated by overseas service with the UN. They apply only to wound pension cases involving a wound or injury or where disease is secondary to the wound or injury.

There are currently 1,011 disability pensions of all categories in payment, of which 275 relating to injury or wound pensions have had a reduction under section 13(2) applied. There have been a number of key cases both at Supreme Court and High Court levels involving section 13(2) and the procedures in place relating to individual cases take account of these judgments. The courts, in various judgments, have upheld the Minister’s statutory right to take into consideration that part of the damages which can properly be regarded as general damages or that part which can properly be regarded as referable to loss of earnings, as he or she considers proper. The reduction of these pensions-----

Acting Chairman (Deputy Denise Mitchell)

The Minister is over time.

Deputy Simon Coveney

I will come back in again. This is clearly quite a complex legal area-----

Deputy Bernard J. Durkan

It is.

Deputy Simon Coveney

-----but I will do what I can to get as much clarity as possible.

Deputy Bernard J. Durkan

I thank the Minister. This practice is grossly unfair and arbitrary. The fact that it has proceeded as it has for so long is unfortunate. The question that arises immediately is whether the courts erred in the first stage. To my mind, they could not have erred. Even though cases have been referred back to the courts on the basis of the situation, this issue prevails. It is totally outrageous that an award made by the courts is arbitrarily undermined, questioned and turned on its head by a decision, enabled by this Act, that part of the award made by the courts be recovered when the member of the Defence Forces is at a more vulnerable stage, that is, when in receipt of his or her military pension. I ask the Minister for a thorough investigation into this matter with a view to changing the situation.

Deputy Simon Coveney

The response I have here states that it is clear that the reduction of these pensions is not arbitrary. It is provided for under legislation and is done on foot of a bona fide decision by the Minister after careful consideration of the specific circumstances of the individual case. The person or his or her solicitor is advised of the statutory provisions and of the potential implications of his or her application. Representations are invited regarding the person's circumstances, details of the compensation actually received and whether there are any special or extenuating circumstances involved. On receipt of representations, cases are submitted to the Minister for decision, setting out the relevant facts of the case, including details of the representations made and an actuarial assessment in pension cases. The actuarial assessment, which is carried out by an actuary based in the Department of Public Expenditure and Reform, translates the compensation into an annuity value based upon various assumptions, including the date the money was received and the life expectancy of the individual. Full account is then taken of representations made and the actuarial assessment before a final decision is made by the Minister. There are no plans to discontinue the application of this statutory provision at this time. There is a process where cases are looked at on an individual basis. Extenuating circumstances are looked at and a recommendation is made to the Minister for his or her decision.

Deputy Bernard J. Durkan

I accept that is the practice but I do not accept the validity of the practice and I believe it needs to be changed. This section of the Act is repugnant to the Constitution. Why are all awards made by the courts not challenged by whoever happens to be the payer of the pensions to the individuals concerned at a later stage? It is totally wrong that this would continue. It has caused severe hardship to an awful lot of people. The Department is effectively stating again and again that these people should not really have had an award in the first place and that it has the right to second-guess the courts and decide of its own accord that it will take back the equivalent value through a reduced pension in the future. I urge the Minister to undertake an urgent reappraisal with a view to changing this practice. It is wrong, unfair and archaic.

Deputy Simon Coveney

I will again outline the purpose of the legislation as it was put together. The underlying objective of section 13(2) is to prevent double compensation in respect of the same disablement. That is what it is specifically trying to do. Compensation of the kind in question would usually result from a civil action for damages against the Department of Defence but compensation received from any other source is, of course, not excluded. If somebody takes a civil case against the Department for injuries or disablement linked to their time in the Defence Forces, that is factored in in the context of compensation they may have been previously granted as part of a pension entitlement. This provision is about trying to ensure there is not double compensation as a result of that. That is the purpose of the section. I understand the point the Deputy is making and that is why extenuating circumstances or individual circumstances linked to cases can be taken into account by the Minister when he or she has to make a final decision on the back of the actuarial recommendation and calculation that comes to his or her desk.