The Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006

PART III U.K. AWARDS IN RESPECT OF DEATH

General conditions for Part III U.K.

22.—(1) Under this Part, awards may be made in accordance with this Order in respect of the death of a member of the armed forces which is due to service before 6th April 2005.

(2) For the purposes of the following provisions of this Part, any death in respect of which a claim to an award has been accepted under or by virtue of article 17A of a 1919 to 1920 other rank instrument or article 16A of a 1920 to 1921 officers instrument (widows of pensioners and others who, before the 1964 instruments came into operation, died from disablement or disease due to service during the 1914 World War) shall be treated as death due to service.

(3) The death of a member occurring after 22nd November 1916 at a time when an allowance in respect of constant attendance was payable to him in respect of a period ending with his death, or would have been so payable if he had not been in hospital or other institution, shall be treated as due to service for the purposes of this Part.

(4) The death of a member—

(a) whose degree of disablement was assessed at not less than 80 per cent; and

(b) to whom, in respect of the period ending with his death, an allowance under article 12 was payable

shall be treated as due to service for the purposes of this Part.

(5) For the purposes of paragraph (4), a member of the armed forces shall be treated as if he was in receipt of an allowance under article 12 if—

(a) at the time of his death subparagraphs (b), (c) and (f) of article 12(3) applied to him; and

(b) the period of remunerative work had not exceeded a period of 52 weeks.

(6) Subject to paragraph (7), where, after the death of a member of the armed forces, any allowance, grant or other payment out of public funds is paid for any period to or in respect of any person in continuation of any payment made during the member's lifetime in respect of his service as a member, no pension, allowance or other grant under this Part of this Order shall be paid for that period to or in respect of that person.

(7) Where the aggregate amount of any pension, allowance or other grant which might, but for this article, have been paid under this Part is in excess of the aggregate amount of the payments made out of public funds, an amount equal to that excess may be paid.

Pensions to surviving spouses and surviving civil partners U.K.

23.—(1) The surviving spouse or surviving civil partner of a member of the armed forces whose death is due to service may be awarded a pension—

(a) at whichever of the rates specified in column (2) of Tables 1, 2 and 3 in Part II of Schedule 2 is appropriate in the case where—

(i) the person has attained the age of 40 years or is the surviving spouse or surviving civil partner of an officer who was a member of the armed forces between 14th August 1914 and 30th September 1921, or

(ii) the person is in receipt of an allowance awarded in respect of a child under article 28, 30 or 31, or

(iii) the person was in receipt of an allowance awarded under article 28 in respect of a child of whom that person is the parent until the date upon which the child attained the age of 16 years, or where, in the opinion of the Secretary of State in any other case, that person should be treated as having been in receipt of such an allowance until that date, or

(iv) a child in respect of whom the person was awarded an allowance under article 28 or 31 dies before attaining the age of 16 years, for a period of 13 weeks beginning with the date of the child's death, or

(v) the person is incapable of self-support;

(b) in any other case, at whichever of the rates specified in column (2) of Tables 4 and 5 in Part II of Schedule 2 is appropriate in the case.

(2) A supplementary pension payable at a rate of £68.42 per week shall be awarded to a surviving spouse or surviving civil partner of a member of the armed forces where—

(a) the surviving spouse or surviving civil partner is entitled to a pension under paragraph (1) above; and

(b) the service of that member terminated before 31st March 1973.

Pensions to dependants who lived as spouses and dependants who lived as civil partners U.K.

24.—(1) A dependant who lived as a spouse or a dependant who lived as a civil partner of a member of the armed forces whose death is due to service (“dependant”) may be awarded a pension in accordance with the following provisions of this article.

(2) Where the child of a member of the armed forces whose death is due to service is in his dependant's charge and the dependant is in receipt of an allowance awarded in respect of that child under the following provisions of this Part of this Order, a pension may, subject to the provisions of paragraph (3), be paid to the dependant until the allowance ceases to be paid or the child ceases to be in the dependant's charge.

(3) For the purposes of paragraph (2), where the child dies before attaining the child's age limit, the dependant shall be treated for the period of 13 weeks from the date of the child's death as if the allowance were still being paid and the child was still in the dependant's charge.

(4) The rate of a pension awarded to a dependant under this article shall be at the discretion of the Secretary of State, but shall not exceed the appropriate rate specified in paragraph 1 of Part III of Schedule 2.

Rent allowance to surviving spouses, surviving civil partners, dependants who lived as spouses and dependants who lived as civil partners, who have children U.K.

25.—(1) Where a surviving spouse or surviving civil partner of a member of the armed forces is in receipt of a pension under article 11 of a 1919 to 1921 instrument or under article 23 of this Order, or a dependant who lived as a spouse or a dependant who lived as a civil partner of a member (“dependant”) is in receipt of a pension under article 24 and—

(a) in the case of a surviving spouse or surviving civil partner, the household of the spouse or civil partner includes a child; or

(b) in the case of a dependant, the household includes a child of the member

the surviving spouse, surviving civil partner or dependant may be awarded a rent allowance at such weekly rate, not exceeding the appropriate rate specified in paragraph 2 of Part III of Schedule 2, as the Secretary of State may think fit having regard to the weekly rent and rates and to any council tax payable by the spouse or dependant.

(2) Subject to paragraph (3), where, but for this provision, an allowance under this article would cease by reason of the household ceasing to include a child, the allowance may be continued for the period of 26 weeks from the date on which the household ceases to include that child, even if the surviving spouse or surviving civil partner or dependant is no longer in receipt of a pension referred to in paragraph(1) for the whole or any part of that period.

(3) Paragraph (2) shall not apply where the pension has ceased by virtue of article 33.

(4) In this article—

(a) “child” means a child who has not attained the child's age limit, or who, having attained the age limit, is a student or an apprentice or is incapable of self-support by reason of an infirmity which arose before he attained the age limit, and includes any person fulfilling those conditions who should, in the opinion of the Secretary of State, having regard to his relationship or to connection with the member and the other circumstances of the case, be treated as covered by the provisions of this article;

(b) “weekly rent and rates” means such sum as the Secretary of State may, after taking into account all relevant factors and making all necessary apportionments, consider to be the weekly amount in respect of rent, or the equivalent of rent, and rates which the surviving spouse, surviving civil partner or dependant is paying or providing either directly or indirectly for accommodation for the benefit of himself or herself as the case may be and the child;

(c) “accommodation” means living accommodation without any service or benefit not ordinarily provided by the landlord to the tenant of an unfurnished dwelling house, but may include accommodation reasonably required for the storage of furniture.

Elderly persons allowance U.K.

26.  Where a person—

(a) is in receipt of a pension awarded—

(i) under or by virtue of a 1919 to 1921 instrument as the surviving spouse or surviving civil partner of a member of the armed forces or as a person who had lived with him as his spouse or civil partner, or

(ii) under article 23 or 24 of, or paragraph 2 or 3 of Schedule 4 to, this Order; and

(b) has attained the age of 65, 70 or, as the case may be, 80

that person shall be awarded an elderly persons allowance at whichever of the rates specified in paragraph 3 of Part III of Schedule 2 is appropriate in the case.

Temporary allowances U.K.

27.—(1) Notwithstanding anything in the foregoing provisions of this Order, where a member of the armed forces died or dies on or after 2nd December 1963 and—

(a) his death is due to service; and

(b) in respect of any period ending with his death there was payable to him either—

(i) an allowance under article 8 or 12(1)(a), or

(ii) although concurrently eligible for an allowance under article 12(1)(a), an allowance under article 15; or

(c) an allowance under article 8 ceased to be payable within 13 weeks of his death following his entry as an inpatient into a hospital or other institution

his surviving spouse or surviving civil partner or dependant who lived as his spouse or dependant who lived as a civil partner (“dependant”) may be awarded a personal allowance and, in respect of children, additional allowances in accordance with the following provisions of this article.

(2) For the purposes of paragraph (1), a member of the armed forces shall be treated as if he was in receipt of an allowance under article 12(1)(a) if—

(a) at the time of his death subparagraphs (b), (c) and (f) of article 12(3) applied to him; and

(b) the period of remunerative work had not exceeded a period of 52 weeks.

(3) A personal allowance awarded under this article to a surviving spouse or surviving civil partner shall be payable—

(a) for the period of 26 weeks commencing, in the case of the surviving spouse or surviving civil partner of an officer with the day, and in the case of the surviving spouse or surviving civil partner of any other member with the Wednesday next following the day of his death; and

(b) at a weekly rate equal to the total amount of the retired pay, pension, alternative retired pay or pension or treatment allowances and any other allowances payable to the member under this Order or by virtue of a grant under a 1919 to 1921 instrument in respect of the 7 days next preceding the day of his death, with the exception of allowances under article 11 or 12(6) (a) or a mobility supplement under article 20 or any allowance in respect of a child; but

(c) a personal allowance under this paragraph shall be subject to article 33(1) as if it were a pension under article 23 and shall not be payable for any period after the death of the surviving spouse or surviving civil partner; and

(d) in calculating the weekly rate of retired pay, pension or allowances for the purposes of the foregoing provisions of this article—

(i) a member who was in receipt of an award under Part V of the Service Pensions Order 1983 which was treated by article 33(2)(d)(i) of that Order as being made under article 10 of that Order shall be treated instead to have been in receipt of an award under article 6 of this Order,

(ii) an officer who was in receipt of an award under any paragraph of the proviso to article 1 of a 1920 to 1921 instrument shall be treated instead to have been in receipt of an award under article 1 of that instrument without reference to that proviso,

(iii) as regards a member (whether or not an officer), no account shall be taken of any pension awarded in respect of service or rank (or both) for which the member was eligible under the principal Naval Regulations, the Pensions Warrant or the principal Air Force Regulations or under any Order in Council, Royal Warrant or Order relating to service before 3rd September 1939, and

(iv) a member who, being concurrently eligible for an allowance under article 12(1)(a), was in receipt of an allowance under article 15 shall be treated instead to have been in receipt of an allowance under article 12(1)(a).

(4) A dependant of a member whose death is due to service and who, at the date of his death, had a child of his in charge may be awarded a personal allowance under this article as if he or, as the case may be, she were the surviving spouse or surviving civil partner of the member, but such an award shall be subject to the following conditions—

(a) the rate of the allowance payable to the dependant—

(i) shall be at the discretion of the Secretary of State, but

(ii) shall not in any case exceed the rate which, if the dependant were the member's surviving spouse or surviving civil partner, would be appropriate under paragraph (3); and

(b) the allowance shall not be payable for any period after the child ceases to be in the dependant's charge.

(5) Where the surviving spouse, surviving civil partner or dependant is awarded a personal allowance under this article, an additional allowance may be awarded in respect of any child for whom an allowance was payable to the member immediately before his death, and any such additional allowance shall be payable at the weekly rate at which the allowance or allowances for that child was or were payable to the member in respect of the 7 days next preceding the day of his death—

(a) for so long as the personal allowance is payable and the child is alive and has not attained the child's age limit; or

(b) if he has attained that limit, is a student or an apprentice; or

(c) is incapable of self-support by reason of an infirmity which arose before he attained that limit; and

in each case the circumstances are such as to justify the continuance of the award.

(6) As respect any payments made to a person under this article for any period for which any pension or allowance (other than an allowance under this article) or grant might, but for the provisions of this paragraph, be awarded to that person under this Part of this Order—

(a) where the aggregate amount of such payments is equal to, or exceeds, the aggregate amount of such pension, allowance or grant, no award of such pension allowance or grant shall be made;

(b) where the aggregate amount of such payments is less than the aggregate amount of such pension, allowance or grant, the pension, allowance or grant may be awarded and the payments shall be treated as paid on account thereof.

(7) Notwithstanding anything in the foregoing provisions of this article, the Secretary of State may, if in his opinion the exceptional circumstances of any particular case so require, at his discretion—

(a) vary the conditions for the award of a personal allowance in so far as they related to a period in respect of which an allowance under article 8 or article 12(1)(a) is required to have been payable;

(b) award a personal allowance or an additional allowance for any week at a weekly rate other than that prescribed in paragraph (3)(b) or, as the case may be, paragraph (5), but not exceeding the maximum rate which would have been payable in accordance with that subparagraph had the member died at any time not earlier than 13 weeks before the date of his death.

Allowances for children under the child's age limit U.K.

28.—(1) A children's allowance shall be awarded in respect of a child of a member of the armed forces whose death is due to service where the child—

(a) has not attained the child's age limit; and

(b) is not eligible for an award of pension under article 29.

(2) A children's allowance shall be—

(a) at the appropriate rate specified in paragraph 4(a) of Part III of Schedule 2 where the child lives with a parent; or

(b) at a rate not exceeding the appropriate rate specified in paragraph 4(b) of Part III of Schedule 2 where the child does not live with a parent or with a person who is or has been in receipt of a pension awarded under articles 23, 24 or 31 in respect of the death of that member.

Pensions for orphans under the child's age limit U.K.

29.—(1) An orphan's pension shall be awarded in respect of a child of a member of the armed forces whose death is due to service where the child—

(a) has not attained the child's age limit; and

(b) has no parents living.

(2) A pension awarded under this article shall be at the appropriate rate specified in paragraph 5 of Part III of Schedule 2.

Award for children who have attained the child's age limit U.K.

30.—(1) A children's allowance or an orphan's pension may be awarded or continued in respect of a child of a member of the armed forces whose death is due to service where the child has attained the child's age limit and who is—

(a) a student or apprentice; or

(b) incapable of self-support by reason of an infirmity which arose before he attained the child's age limit

and where the Secretary of State considers the making or continuing of the award is justified in all the circumstances of the case.

(2) An allowance or pension awarded or continued under this article—

(a) shall be at the rate, and subject to the conditions in, articles 28(1)(b) or 29(1)(b) as appropriate; or

(b) where a child in respect of whom an award was made under article 28 or 29 has attained the age of 18 years and is incapable of self-support by reason of an infirmity which arose before he attained the child's age limit, shall be at a rate not exceeding the rate specified in paragraph 6 of Part III of Schedule 2.

Awards to or in respect of ineligible members of the families of unemployable pensioners U.K.

31.  Where a member of the armed forces was at the date of his death in receipt of an allowance in respect of a child under article 12(6)(b) by virtue of article 12(6)(c), a pension to, or an allowance in respect of, the child may be awarded at the rate, and subject to the conditions, which would have been appropriate under the foregoing provisions of this Part of this Order if the child had been an eligible member of the family.

Funeral expenses U.K.

32.—(1) Where a member of the armed forces dies on or after 7th April 1997 and—

(a) the funeral of that member has taken place; and

(b) within three months of the funeral of the deceased member, either—

(i) a claim is made for funeral expenses, or

(ii) an enquiry is made in person, in writing or orally to the Secretary of State or to an authorised agent about claiming funeral expenses and a claim is made for such expenses within three months of the date the claim form is sent in response to that enquiry; and

(c) one of the conditions specified in paragraph (2) is satisfied

the Secretary of State may defray so much of any reasonable funeral expenses as he may determine.

(2) The conditions specified in this paragraph are—

(a) the death of the member was due to service before 6th April 2005;

(b) the death of the member occurred whilst, in respect of the disablement which gives rise to an award under this Order, he was receiving in-patient treatment in a hospital or similar institution—

(i) under the National Health Service Act 1977 M1

(ii) under the National Health Service (Scotland) Act 1978 M2

(iii) under the National Health Service and Community Care Act 1990 M3

(iv) under any corresponding enactment having effect in Northern Ireland, or

(v) in a hospital or similar institution maintained or administered by the Defence Council.

(3) Subject to paragraph (4), for the purposes of this article “reasonable funeral expenses” means expenses which the Secretary of State considers reasonable in relation to any of the following items—

(a) necessary documentation;

(b) transportation of the body;

(c) travelling costs of one return journey by the person responsible for the funeral to arrange or attend the funeral;

(d) funeral director's fees and disbursements including the cost of an ordinary coffin;

(e) transportation of the coffin and bearers and the cost of one other car;

(f) funeral ceremony fees;

(g) cemetery or cremation fees;

(h) the cost of flowers from the person responsible for the funeral up to £75; or

(i) up to £75 for extra costs because of the religion of the deceased member.

(4) Reasonable funeral expenses shall not exceed a total of £1,400.

Marginal Citations

M1 1977 c. 49.

M2 1978 c. 29.

M3 1990 c. 19.

Relationships subsequent to the award of a pension U.K.

33.—(1) Subject to the following provisions of this article, any pension or allowance awarded under this Part of this Order or under Part II of a 1919 to 1921 instrument to a person other than a parent shall cease if that person marries or lives with another person as the spouse of that person or forms a civil partnership or lives with another person as the civil partner of that person.

(2) Where—

(a) in accordance with paragraph (1), an award ceased because the person had another person living with her or, as the case may be, him as a spouse or formed a civil partnership or had another person living with her, or as the case may be, him as a civil partner; and

(b) that person claims an award under this Part in respect of a period which begins after the end of that relationship

the claim shall be determined as though the relationship had never existed.

(3) A pension or allowance awarded under articles 23 to 26 (inclusive) to a person in respect of a member of the armed forces who died or whose service terminated on or before 31st March 1973 shall not cease if that person marries or begins to live with another person as the spouse of that person or forms a civil partnership or begins to live with another person as the civil partner of that person on or after 6th April 2005.

(4) In determining whether a pension is payable to a person as a surviving spouse in respect of any period beginning on or after 19th July 1995, no account may be taken of the fact that the widow has married another if, before the beginning of that period, the marriage has been terminated or the parties have been judicially separated.

(5) A pension or allowance awarded to or in respect of a person under article 28, 29 or 30 shall not cease on the marriage of that person if, having regard to the special circumstances of the case, the Secretary of State so directs.

(6) An allowance awarded in respect of a child shall not be affected by the cessation under this article of a pension awarded to any other person.

(7) For the purposes of paragraph (4)—

(a) the reference to the termination of a marriage is to the termination of the marriage by death, dissolution or annulment; and

(b) the reference to judicial separation includes any legal separation obtained in a country or territory outside the British Islands and recognised in the United Kingdom

and for those purposes a divorce, annulment or legal separation obtained in a country or territory outside the British Islands must, if the Secretary of State so determines, be treated as recognised in the United Kingdom even though no declaration as to its validity has been made by any court in the United Kingdom.