AFC0039
Written evidence submitted by Bolt Burdon Kemp LLP.
About us
Bolt Burdon Kemp LLP is a firm of solicitors that specialise in acting for those who have suffered serious injury as a result of negligence, harassment and abuse. Our Military Group acts exclusively for members of the British Armed Forces, veterans and their families. The firm is based in London but represents clients nationwide.
We are recognised as leading specialists in this field of law. The writer, Natasha Mason is a Solicitor in our Military Claims team. Natasha is also a veteran herself, having served for 19 years in the Royal Navy.
Our Military Claims Teams’ previous evidence to parliamentary committees comprises:
Our response is informed by the experiences of clients represented by our Military Claims team.
Terms of Reference
The committee has welcomed evidence on the following questions.
Using our expertise and experience representing clients in the armed forces we will be focusing our evidence on answering questions A, B and C.
A. In what areas is the Armed Forces Covenant working well?
The covenant is a welcome mechanism to bring about positive change for the armed forces community. That said, we welcome the committee’s exploration of the covenant and how it can better serve current and former members of the armed forces.
Due to the nature of our work, the majority of our interactions with members of the armed forces or the veteran community occur when something has gone wrong. Therefore, our response largely highlights ways in which the covenant is working as well as intended.
The covenant makes clear that its purpose is to ensure members of the armed forces community are not disadvantaged in accessing goods or services. Broadly speaking, the covenant has helped veterans, serving personnel and their families in this aim.
B. Where is the Armed Forces Covenant failing the Armed Forces Community?
Our response highlights three major failings that we believe any work to improve the covenant must address:
1) The way injured service personnel and veterans are supported through the Armed Forces Compensation Scheme
2) The delays to inquests involving the death of a service person or veteran and the lack of legal representation for bereaved families
3) The lack of adequate mental health and welfare support
1) The way injured service personnel and veterans are supported through the Armed Forces Compensation Scheme
The Armed Forces Compensation Scheme (AFCS) is a government-run scheme which provides compensation for any service-related injury, illness or death that has occurred since 6th April 2005. AFCS is a ‘no-fault scheme’ which means personnel do not have to prove that their injury was caused by someone else, only that it was caused as a result of their service.
The problem with the scheme is that for many, it is too complicated and technical to navigate. This results in many service personnel either paying lawyers or advisers to help them, or receiving less compensation than they are entitled to, because they were unable to access support to complete their application and navigate the process. If an application is rejected it can then go to tribunal. However, the tribunal process includes navigating complicated legal processes and documentation which is inherently biased against an applicant who has little familiarity with the process, and makes the process inaccessible and unfair. The scheme is widely criticised for undervaluing injuries, ignoring the impact on mental health and rejecting valid claims. The All-Party Parliamentary Group for Veterans found that 75% of veterans rated their experience of the AFCS as poor.
In early 2024 the Government did make several recommendations in response to the AFCS review. Whilst many of these were positive and welcome changes, it is unclear how many changes have been implemented and to what extent the recommendations will be adopted.
In the context of this consultation, we feel it is important to consider the AFCS Scheme. Whilst it is extremely positive that the Government is consulting to ensure the covenant is covering all relevant areas, it is failing to provide proper to support to injured service personnel, veterans and their families. This is a fundamental failing of our system and must be addressed in order to meet the aim of the covenant which is ‘to ensure that Service Personnel, their dependents and veterans are not disadvantaged in the provision of goods and services, compared with the rest of the population’.
2) The delays to inquests involving the death of a service personnel or veteran and the lack of legal representation for bereaved families
We have concerns over the way the MOD and MOJ are treating bereaved families of service personnel when going through an inquest.
The purpose of the covenant is to ensure that service personnel and their dependents are not disadvantaged. Service personnel risk their lives for their country, however when there are mistakes or complications that lead to a death, their families can be left without answers as to why a death occurred, unless they are able to properly navigate the inquest process.
The MOD has access to unlimited public funds for specialist legal representation during an inquest. In contrast, bereaved families are highly unlikely to have any legal representation. Whilst a very small number of families are granted legal aid, the majority face paying vast sums in respect of legal costs or attending an inquest without any professional representation. Without legal support, families are frequently denied the ability to fully participate in the process in a meaningful way, which puts them at a disadvantage.
The number of families granted legal aid (Exceptional Case Funding) for representation at an inquest is incredibly low. Legal aid is funded by the state. Limiting access to who is granted Exceptional Case Funding only benefits the State, which is self-serving given that the MOD is a state actor, potential defendant and employer of the deceased. This is an impediment to access to justice for military families.
Inquests are meant to conclude within a 6-month duration, however, between 2017 and 2022, the number of inquests lasting over two years in England and Wales quadrupled from 378 in 2017 to 1,760 in 2022.
In our experience, delays to inquests are even lengthier for families mourning the loss of a loved one serving in the Armed Forces. Where a death arises from a military incident, a Service Inquiry is also held which is independent from the coroner’s inquest. It is an internal investigation designed to maintain operation efficiency. However, that Service Inquiry is used to inform the coroner’s inquest. There are often delays to Service Inquiries being concluded, which in turn delays the start of a coroner’s inquest. Delays can be further exacerbated in cases where a criminal investigation is also being conducted.
These factors cause additional (and in our view, avoidable), distress and heartache for bereaved military families. A delayed inquest inhibits access to justice – the passage of time can impede the availability of and access to evidence, reducing its reliability. Inquest hearings which take place years after the event frequently call for witnesses to give evidence – the passage of time affects recall. Witnesses who are vaguer in their recollection than they would otherwise have been if examined more proximate to the related events then risk their credibility being called into account.
The current inquest system is a huge injustice to service personnel who have lost their lives. Despite the covenant being in existence for two and a half decades these problems persist and have been getting worse.
3) The lack of mental health and welfare support
Whilst mental health is mentioned throughout the covenant guidance, there are still significant failings in support for service personnel and veterans with regard to their mental health.
According to the MOD’s own figures mental and behavioural disorders are a leading cause of medical discharge: 29% of royal navy medical discharges, 39% of army medical discharges and 49% of RAF medical discharges are attributed to mental and behavioural disorders. Improving the support offered in these areas will likely reduce the rates of medical discharge cited here, which can only be a positive – for the individuals concerned, for the forces, and financially for the government, following significant investment in training and developing personnel to serve our country.
Poor mental health is not just leading to medical discharge but also to loss of life. We represented Olivia Perk’s family following her death. This highly publicised death was unfortunately not unique.
We have included two case studies to illustrate the issues caused by a lack of support for mental health.
Case Study 1: Olivia Perks
Olivia Perks died by suicide at the age of 21, just 10 weeks before her commissioning date. In 2023, the findings from the inquest into her death were released. The findings highlighted the mismanagement of her welfare by the Army in the nine months before her death, concluding:
‘There was a missed opportunity by the chain of command to recognise the risk which the stress of her situation posed to Olivia and a medical assessment should have been, but was not, requested. It is not possible to know what the outcome would have been had a medical assessment taken place, but it is possible that measures would have been put in place which would have prevented Olivia’s death.’
The inquest cited a lack of adequate training as a contributing factor to the events surrounding Olivia’s death:
‘This situation was contributed to by the failure to adequately train all levels of the chain of command in managing welfare issues.’
Case Study 2: Amy
Amy experienced sexual harassment, stalking and discrimination during 2021 and 2022. She had evidence of this and shared it with her Chain of Command. Despite this, she received little to no support. Indeed, following an investigation, one of her superiors was implicated in the behaviour she complained of. Eventually, she was diagnosed with a mental health condition as a result of the harassment and complained to the Royal Military Police (RMP). In the run-up to her medical discharge, she was encouraged by her Chain of Command to drop the RMP investigation despite her mental health condition and despite the ‘zero tolerance’ policy, which the MoD now espouses. She later brought a Service Complaint about her experiences, including a complaint that her Chain of Command coerced her into dropping the investigation. Her Service Complaint was found to be out of time, even though witnesses were available and records of her complaints clearly existed.
Olivia and Amy’s cases are not unique, and we have represented countless other service personnel with similar stories. These case studies highlight significant failings in the welfare and mental health support for the armed forces and veterans, which are not unique. Whilst the covenant does refer to mental health, more support is needed.
(a) What are the main causes for these failings?
Budgetary – One of the effects of the complexity and inaccessibility of the AFCS Scheme is to limit how many veterans and how much compensation is paid out by the MOD. Successive budget cuts by central Government will only serve to exacerbate the situation.
Coronial system - The causes for delay in the coronial system are a causal factor in the delays to timely resolution of inquests. The reasons for the underlying delays are multi-faceted. As laid out in our previous evidence to the Justice Committee on this subject, the Chief Coroner identified the pandemic as a leading reason for the delays. However, we conducted further scrutiny of the Ministry of Justice statistics which confirm that a) the delays pre-date the pandemic; b) delays appear to have worsened since around 2016 which is arguably when funding cuts implemented by central government began to bite; and c) post-pandemic, some coroner areas are dealing with the issue of delay better than they were pre-pandemic. If the delays were pandemic-driven, you would expect to see a more consistent pattern of delay affecting all coroner areas equally but instead, there is a vast disparity in performance between coroner areas. It seems likely that the root cause of delay stems from underlying issues, such as lack of funding and/or lack of resources.
Accordingly, although the pandemic has undoubtedly compounded the issue of delay in some coroner areas, ongoing delays appear to depend on the management of resources and/or funding allocated by the Local Authorities.
Service Inquiries - Delays to inquests for military families are exacerbated due to delays caused by the MOD. Where a death arises from a military incident, a Service Inquiry is also held. A Service Inquiry is independent of a coroner’s inquest and its purpose is to ascertain facts and to issue recommendations to prevent recurrence. It is an internal investigation designed to maintain operational efficiency. However, the findings of a Service Inquiry are often used to inform the coroner’s inquest by clarifying more complex service issues. Unfortunately, we find that there are often delays to Service Inquiries themselves.
Delays can be even further exacerbated when a criminal investigation ensues. It is unclear from the statistics available what proportion of delay is caused by an ongoing criminal investigation. In our experience, criminal investigations can themselves be prolonged, and therefore implementation of more stringent timelines for concluding investigations could help prevent delay in inquest proceedings.
Support for mental health needs - There is a lack of financial support for mental health services, which causes delays in veterans receiving support.
Culture within the forces - Within the armed forces the culture frequently has an impact on whether individuals feel comfortable coming forward to ask for support. For many of our clients, severe bullying and harassment (and subsequent denial / rejection of complaints by Chain of Command) has caused or exacerbated mental health conditions. In these cases, we often see a culture of cover-up within the armed forces and by the MOD which prevents these issues being resolved and wholesale change being effected.
C. Are there areas which the Armed Forces Covenant ought to be extended to and why?
The ambition and aims of the covenant are, in our view, well considered. Our concern regards the implementation of the covenant rather than areas to which the covenant ought to be extended. We believe that before any further expansion is introduced, the Government must ensure the aims of the existing covenant are fully implemented.
More must be done to hold government departments accountable for their duty under the covenant. One suggestion is that for each Government department there is a minister responsible for ensuring the department is meeting its obligations under the covenant. This would ensure accountability.
C (a). If so, which are the priority areas?
From our experience of working with service personnel, veterans and bereaved military families we believe that there are three main areas the Government must prioritise.
These are:
1. Support for injured veterans and service personnel
2. Delays and lack of legal representation at inquests
3. Lack of adequate mental health and welfare support
Whilst these areas are technically already covered by the covenant it is clear that full implementation in these areas is lacking.
Summary
The covenant is a positive force for change for those serving in our armed forces, veterans and their families but there is still a significant way to go. Through our work, three main areas for improvement stand out to us. These are:
1) The way injured service personnel and veterans are supported though the Armed Forces Compensation Scheme
2) The delays to inquests involving the death of a service personnel or veteran and the lack of support for bereaved families
3) The lack of mental health and welfare support
Whilst these issues are technically mentioned in the covenant it is clear that more work needs to be done to address these issues.
In our evidence we have highlighted case studies from two of our clients. This includes the high-profile case of 21-year-old Olivia Perks who took her own life, after catastrophic failings by the Army to protect her from harassment and to provide adequate welfare or mental health support.
Whilst the covenant includes many important themes and issues there appears to be a lack of accountability in relation to implementation thereof. Before the Government considers expanding the covenant it must first ensure that the current aims are being properly implemented.
23rd January 2025