Shot soldier has to fight on two fronts

Stephen Howard,Press Association
Tuesday 28 July 2009 15:10

A British soldier was at the centre of two major battles today - fighting the Taliban and in a Government court challenge over injury compensation for the armed forces.

In Afghanistan, Light Dragoon Anthony Duncan is fighting on the front line. In London, the Ministry of Defence launched an appeal involving his compensation for injuries sustained in Iraq.

If the Government is successful, it could mean that both his and Royal Marine Matthew McWilliams's awards for injuries could be slashed and future payments limited for combat victims.

Cpl Duncan was originally awarded £9,250, which was increased to £46,000 by a Pensions Appeal Tribunal, and Marine McWilliams's £8,250 award was increased to £28,750.

The 27-year-old corporal was shot in Iraq in 2005 and overcame two years of rehabilitation to ship out in April with his Light Dragoons colleagues to fight in Afghanistan for six months.

It is Cpl Duncan's first tour of duty since a bullet ripped through the inside of his left leg, hitting his femur bone and exiting the other side while on foot patrol.

The soldier, originally from Chorley, Lancashire, said: "I thought I'd been rugby-tackled at first.

"I was looking around for someone to swing for, then realised I couldn't feel my leg.

"I saw the blood and thought I'd been involved in an explosion.

"The guys got me out of there. I'd never so much as broken a bone before."

Nathalie Lieven QC, representing Defence Secretary Bob Ainsworth, told a panel of three Court of Appeal judges in London that awards for injuries are made under the Armed Forces and Reserve Forces Compensation Order.

She said the Upper Tribunal Administrative Appeal Chamber had made wrong conclusions about the order and the Defence Secretary was now seeking guidance from the court.

The tribunal set out a number of principles on how the order should be interpreted.

"The impact of that decision covers the large majority of cases under the order and is therefore of very great importance to the Secretary of State and to the proper decision-making in many future cases."

She said: "The tribunal's approach was contrary to one of the fundamental tenets of the scheme, namely that it focused on injury and not on disablement."

It was not the same as social security schemes and personal injury claims, where the focus is on the level of disablement suffered by the claimant at the date of decision and is projected into the future, she said.

Ms Lieven said the order does not allow benefits to be paid for injuries predominantly caused or made worse by tobacco, drugs and alcohol use, medical treatment except while on military operations outside the UK where facilities are limited, or for events occurring before the soldier entered the armed forces.

She said the scheme provided compensation on a tariff basis which depended on the nature and severity of the injury.

The aim was to create "fair and consistent awards", she said.

"If one were simply to consider the claimant's condition at the time of the claim or decision, without regard to the initiating injury, then it would mean that a claimant whose fracture (for example) had by then healed would receive no compensation."

Cpl Duncan was cleared in January as being fully employable anywhere in the world.

She said: "The current scheme normally awards compensation which is final and aims to cover the average expected effects of the injury over a lifetime, rather than a claimant's overall condition at some later date."

The upper appeal tribunal had erred in law in considering the condition at date of decision on the claim, rather than considering the injury at the date it occurred, she said.

Lawyers representing the two soldiers will be arguing during the two-day hearing that the scheme was designed to compensate members of the armed forces injured in military operations.

In cases of combat wounds, payments under the scheme will be the only compensation to which the personnel are entitled, the judges will be told.

Scottish National Party Westminster leader and defence spokesman Angus Robertson said today he had written to the Defence Secretary demanding to know how much the MoD has spent on legal advice and representation in today's case.

Mr Robertson said: "The Ministry of Defence are behaving shamefully in attempting to cut these compensation payments.

"It is frankly offensive that when our servicemen and women are risking their lives engaged in fierce fighting in Afghanistan, sustaining significant casualties in the process, the MoD are attempting to slash the compensation levels awarded to those wounded in battle.

"Soldiers, sailors and airforce personnel have already volunteered to do a difficult, dangerous and stressful job, often in hostile territory thousands of miles from home. To be met with such a response from the MoD when seeking compensation for wounds received in service is unacceptable.

"The MoD should think again about how their action will be viewed by the service community in the present circumstances."

Liberal Democrat defence spokesman Willie Rennie said: "Gordon Brown's Government has completely lost its moral compass.

"Time and again we have seen ministers throwing money at lawyers rather than doing the right thing by our veterans.

"In recent years the Government has spent millions trying to avoid compensating the veterans of nuclear tests. Now they are trying to duck their responsibilities towards our troops.

"It is time that ministers woke up and recognised that our troops deserve to be properly supported for the huge sacrifices they have made."

Colonel Richard Kemp, the former commander of British forces in Afghanistan, said today's court case was "a disgrace".

Col Kemp told BBC Radio 4's The World At One: "Our wounded soldiers and their families and the families of dead soldiers must be really well looked after.

"They have sacrificed huge amounts and it is vital that they are given more compensation. In my view, we shouldn't be reducing, we should be increasing the levels of compensation."

Conservative MP James Arbuthnot, chairman of the House of Commons Defence Select Committee, said: "If the Ministry of Defence is appealing to keep the costs of looking after injured servicemen as low as possible, it sends all the wrong messages to people who are wondering whether to join the armed forces."

But defence minister Kevan Jones told the programme: "What we are doing today is to really make sure that the scheme which has been put in place makes sure that the most severely injured are compensated the most, and we have a scheme that is just and fair."

The shadow defence secretary Liam Fox said: "We now have a Government which has lost its political instincts and sense of direction.

"It's an essential part of the military covenant that those injured in the service of their country are dealt with in a consistent and coherent way. Visible and invisible injuries must both be dealt with, and the MoD and other Government departments must deal not only with injuries but their consequences.

"The Armed Forces Compensation Scheme needs to be reviewed urgently as part of a wider programme looking at the terms and conditions of the Armed Forces."

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