By Luke Moffett
The campaign for a pension for seriously injured victims has been a long road since it started back in 2012, following a report by Marie Breen-Smyth on the impact of the Troubles on those injured. Led by members of the Wave injured group and supported by the Commission for Victims and Survivors, the pension campaign was about remedying the way injured victims had been inadequately compensated in the past, discriminated or ill-treated. For many years the issue was caught in the political jostling of who is considered a deserving victim for the pension, with the eligibility of injured members of paramilitary groups often raised. Although the Victims and Survivors (NI) Order 2006 provides a broad definition of a victim, it is related only to the work of the Commission for Victims and Survivors and the Victims and Survivors Service (VSS). Other countries do not include all victims in their payment schemes, but try to provide a remedy to those who have had their human rights violated.
The recently created injured victims’ payments scheme in Northern Ireland aims to focus on those who are disabled as a result of a Troubles-related injury, many of whom are in their older age, by providing them a lump sum or monthly pension as a means of financial security. This follows a consultation by the Northern Ireland Office in October-November 2019 on payments for seriously injured victims, after the 2014 Stormont House Agreement committed to ‘further work will be undertaken to seek an acceptable way forward on the proposal for a pension for severely physically injured victims’. This blog post provides a brief overview of the main provisions of the scheme.
On the 31st January 2020 the Secretary of State for Northern Ireland Mr Julian Smith signed into law and placed before Parliament the ‘Victims’ Payments Regulations 2020’, which will provide a pension scheme to those seriously injured as a result of the Troubles/conflict in and around Northern Ireland. While the provisions for the Board responsible for running the scheme will come into effect on the 24th February, the majority of the regulations do not come into effect until 29th May 2020 when the first applications will begin to be processed. The scheme will be known as the ‘Troubles Permanent Disablement Payment Scheme’.
The purpose of the scheme is to ‘acknowledge the harm suffered by those injured in the Troubles, and promote reconciliation between people in connection with Northern Ireland’s troubled past’ (Regulation 5(6)). The Board will be guided by principles on the need to be responsive to and prioritise victims’ needs, to be transparent and communicate effectively, the Scheme to be simple to navigate, applications to be determined without delay, and for personal data to be handled sensitively (Reg. 4).
Who can apply?
Anyone who has suffered a permanent disablement more than 14% of a Troubles-related incident in the UK, in Europe where the person is a British citizen born in Northern Ireland, was outside UK in service of the Crown, or accompanying close relative of the person serving outside the UK in service of the Crown. The time period for such an injury is between 1 January 1966 and 12 April 2010, though the panel can overlook this time period if it undermines the purposes of the scheme (Reg. 5(1)(d) and (5)).
Under the regulations disablement is defined as ‘damage, disfigurement and loss of physical or mental capacity resulting from injury’ (Reg. 2). While the degree of disablement will need to be assessed by a health care professional, the base rate of 14-20% would include the loss of an index finger or hearing loss, in line other similar schemes. The level of disablement beyond just the eligibility requirements will also determine the monthly payment amount or lump sum of the claimant. The assessment by a health care professional can be conducted by evaluating any relevant information before the Board, any previous report assessments or by carrying out an examination on an application (Reg. 15). This means that not all victims will need to be examined, in particular where previous information on their disablement whether through medical records, VSS or other bodies is available. For those whose disablement does not allow a degree of disablement to be permanent determined, an interim assessment will be carried out up to a maximum of two years, which can be extended once more (Reg. 14). For those individuals who believe their disablement has worsened they can apply to have a reassessment (Reg. 33).
Individuals will have to demonstrate that their injury is a result of being present at a Troubles-related incident (determined by the Board), present in the immediate aftermath of a Troubles-related incident in which a loved one died or suffered an injury, responding, in the course of employment to a Troubles-related incident, in which the person reasonably believed a loved one had died or suffered significant injury (Reg. 7). A loved one includes those married, in civil partnership or cohabitating for over two years, or a parent and a child. However, an individual being eligible does not mean that they will be a beneficiary, as there are some exclusions and restrictions on the amount that may be available.
The most explicit exclusion is for those with relevant convictions that were as a result of ‘conduct which caused, wholly or in part’ with the incident they were seriously injured in. A relevant conviction are those which have been spent or unspent and excluded under the under the Rehabilitation of Offenders (Northern Ireland) Order 1978, i.e. longer than thirty months or life sentences. While in the first instance this will exclude those convicted for being involved in instances that they were injured in, it also has a wider scope for the Board to exclude those with any relevant conviction (not related to the injury) if it would be inappropriate to award them the victims’ payment (Reg. 6). A review panel within the Board can re-examine a decision to exclude an applicant with a relevant conviction (Reg. 43(2)).
All those applying must do so through an application form to the Board. Once the form is received a panel with the Board will assess if the applicant meets the criteria and entitled to the payment, with an assessment by a health care professional on the degree of disablement (Regs. 12-13). Applicants will be notified in writing of the Board’s decision on whether or not they are eligible and the amount of their payment, giving a summary of reasons and informing them of a right to appeal where appropriate (Reg. 17). Applicants who are eligible will be notified again when the determination of their payment has been determined, in which they will receive in writing the amount they will receive, a summary reason for the decision and their right to appeal (Reg. 22).
The Board can prioritise the delivery of the payments depending on the evidence provided, the age of the applicant and with particular regard to those who have informed them that they are terminally ill (Reg. 11). An appeals process within the Board provides for victims to appear in person at the oral hearing and the appeals panel has the power to confirm, re-decide or vary a decision, including increasing, decreasing or confirming an assessment of the degree of disablement (Regs. 34-41).
Payments will normally be made on a monthly basis for eligible applicants, but the Board can pay a lump sum for those who are over sixty or terminal ill and inform the Board on their application form (Reg. 24). Payments will also be backdated from the date of the application and three years after this date, to reflect that the scheme would have been in operation from the Stormont House Agreement on the 23rd December 2014 (Reg. 21). However, the payment amount can be modified by other payments related to the same disablement of the victims’ payment, such as a disablement pension or past compensation (Regs. 19 and 20). While a fixed amount will need to be determined by the Board as to what is exempted compensation will not be considered in taking into account the appropriate amount for the victims’ payments. Some indication of the calculation is provided in the Government’s response to the pension consultation amount of the victims’ payment they would have been entitled to from the date of their injury, the effect of inflation and time value of money (Reg. 20(4-7)). In effect this will mean that individuals who were compensated in the 1970s would likely to be unaffected by this calculation, whereas individuals compensated in the late 1990s may receive a reduced amount depending on the Board’s decision and the time period for such a reduction to last.
At the same time the victims’ payment will not affect a person’s income or capital for the purposes of social security benefit (employment and support allowance, housing benefit, income support, jobseeker’s allowance, state pension or universal credit), cost of residential accommodation or repayment of a criminal injury compensation award (Reg. 26).
The claimant can nominate a spouse, civil or cohabitating partner or carer to be the beneficiary of the payments for 10 years after their death (Reg. 9). Carers are defined as those who are ‘regularly and substantially’ engaged in caring for the applying victim, in that they are entitled to a carer’s allowance or it is seen as fair to do so by a panel appointed by the Board, but it excludes those who are paid as an income for caring for the victim. Spouse/partners or carers can also make applications when the victim has died on or before the 23rd December 2014 within a ten-year period and entitled to the payments for 10 years where it falls within the time. For instance an injured victim who died in December 2010, their spouse/partner or carer could make an application for 6 years of payments, as four of those years fall outside the entitlement period running from the Stormont House Agreement in December 2014.
In all the victims’ payment scheme provides acknowledgement and financial security to seriously injured victims of the Troubles/conflict in and around Northern Ireland. While some of the details have to be mapped out by the Board once it is constituted, there will be a review process in two years time, in particular to backdate awards after year three of its operation and beyond.