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

Article 46

SCHEDULE 3 U.K. COMMENCING DATES OF AWARDS

1.—(1) Subject to the following provisions of this Schedule, an award or an adjustment of an award shall have effect from such date as may be specified in the award, being a date not earlier than the date specified in subparagraph (2) which is relevant in the claimant's case. U.K.

(2) The date specified in this subparagraph is whichever date is the latest in time of the date—

(a) following the date of termination of service or, in a case under [F1 Part III], following the date of death of the member;

(b) of the claim;

(c) of the last application for review; or

(3) Where in a case to which subparagraph (1) applies, the claimant satisfies the requirements of subparagraph (4) the award shall have effect from the date the subparagraph is satisfied.

(4) This paragraph is satisfied where the date of claim or application for review is made within 3 months of—

(a) the date of termination of service, or the date of death where an award is made in respect of a member's death; or

(b) except where paragraph (a) applies, the date of notification of a decision on the claim or review.

(5) Where the requirements of subparagraph (4) are satisfied on more than one occasion and the occasions on which they are satisfied are consecutive, subparagraph (3) shall apply as from the first occasion on which subparagraph (4) is satisfied.

(6) Subject to subparagraphs (7), (8) and (9), where an award is adjusted upon review instigated by the Secretary of State, the adjustment shall take effect from the date of the review.

(7) Where an award is reviewed as a result of a decision (“the original decision”) which arose from an official error, the reviewed decision shall take effect from the date of the original decision and for this purpose “official error” means an error made by Secretary of State or any officer of his carrying out functions in connection with war pensions, defence, or foreign and commonwealth affairs, to which no other person materially contributed, including reliance on erroneous medical advice but excluding any error of law which is only shown to have been an error by virtue of a subsequent decision of a court.

(8) Where an award is suspended pursuant to Article 65(3) but, on one of the conditions specified in article 65(5) being satisfied, the Secretary of State reviews the award, [F2 the Secretary of State shall adjust the award in accordance with subparagraph 6 and shall make a backdating payment in respect of the award, which payment shall]—

(a) apply in respect of the period between the date on which the suspension took effect and the date of the review, and

(b) be calculated by reference to the rate at which the award was in payment prior to its suspension.

(9) Where, a pensioner's award has been cancelled (pursuant to Article 66(1) but, following submission of a further claim (in accordance with Article 66(2) the Secretary of State has made a further award in the pensioner's favour, such award shall take effect and payment shall be made—

(a) from the date on which the suspension took effect,

(b) at such rate as the Secretary of State determines to be appropriate when making the further award.

(10) For the purposes of this paragraph, a claim shall be treated as made for a pension or allowance for which a claim is not required by virtue of article 35 on the date on which the relevant conditions of entitlement to the pension or allowance first became satisfied.

Textual Amendments

F1 Words in Sch. 3 para. 1(2)(a) substituted (7.4.2008 with application in accordance with art. 2(3) of the amending S.I.) by The Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions (Amendment) Order 2008 (S.I. 2008/679), art. 2(1)(2)(a), Sch. 1 para. 9(a)

F2 Words in Sch. 3 para. 1(8) substituted (21.6.2006) by The Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions (Amendment) (No. 2) Order 2006 (S.I. 2006/1455), arts. 1(3), 5

2.—(1) In a case to which section 168 of the Pension Act 1995 M1 (war pensions for widows: effect of remarriage) or article 33(2) applies, for paragraph 1(4)(a) of this Schedule substitute “the date of termination of a marriage or civil partnership, the date of judicial separation of the parties to a marriage, the date of a separation order relating to a civil partnership or the date the claimant ceased to live with another as a spouse or as a civil partner”. U.K.

(2) In this paragraph—

(a) in relation to marriage “termination of marriage” and “judicial separation” have the meanings they bear in section 168 of the Pension Act 1995;

(b) in relation to civil partners—

(i) the reference to the termination of a civil partnership is to the termination of a partnership by death, dissolution or annulment, and

(ii) the reference to a separation order 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 dissolution, 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 in any court in the United Kingdom.

Marginal Citations

M1 1995 c. 26.

3.  Where an award is made pursuant to a successful appeal to the Social Security CommissionersM2 [F3 or the Upper Tribunal], the Secretary of State may make payment for a past period which does not exceed six years from the date of the application for leave to appeal to the [F4 Social Security Commissioners] [F3 or the Upper Tribunal]. U.K.

Textual Amendments

F3 Words in Sch. 3 para. 3 inserted (3.11.2008) by The Tribunals, Courts and Enforcement Act 2007 (Transitional and Consequential Provisions) Order 2008 (S.I. 2008/2683), arts. 1, 6(1), Sch. 1 para. 314(a)

F4 Words in Sch. 3 para. 3 substituted (7.4.2008 with application in accordance with art. 2(3) of the amending S.I.) by The Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions (Amendment) Order 2008 (S.I. 2008/679), art. 2(1)(2)(a), Sch. 1 para. 9(b)

Marginal Citations

M2 See section 6(A) of the Pensions Appeal Tribunals Act 1943 (c. 39).

4.  Where an award or an adjustment of an award is made following a decision of the President of the Pensions Appeal Tribunals that the decision of a Pensions Appeal Tribunal be treated as set aside, the Secretary of State shall make payment for a past period which does not exceed six years from the date of the application which led to the decision of the President of the Pensions Appeal Tribunal where the ground for setting the decision of the Pensions Appeal Tribunal aside is that the Tribunal's decision was erroneous in point of law M3 . U.K.

Marginal Citations

M3 See section 6A(6)and 6B(2) of the Pensions Appeal Tribunals Act 1943 (c. 39).

5.  Where a claimant satisfies the Secretary of State that— U.K.

(a) he would have made a claim or an application for a review on a date (“the earlier date”) earlier than that (“the actual date”) on which he actually did so but for the fact that he was incapable of so doing or of instructing someone to act on his behalf by reason of illness or disability; and

(b) that illness or disability continued to be the cause of the delay up to the moment the claim or application was made

any reference in this Schedule to the date of claim or date of application for review shall be treated as a reference to the later of—

(i) the earlier date; and

(ii) the date three years before the actual date.

6.—(1) Where, upon a review of a decision rejecting a claim for pension, the Secretary of State makes an award on the basis that medical opinion has developed since the date of the decision which is the subject of the review, no payment shall be made in respect of any period preceding whichever is the later of— U.K.

(a) the date on which the Secretary of State considers that medical opinion had developed to the extent that an award in the claimant's case was justified; and

(b) the date three years before the date of application for a review or, where the review is instigated by the Secretary of State, the date three years before the date of the Secretary of State's review decision.

(2) Where the Secretary of State accepts a claim and he is satisfied that the claimant would have made a claim at an earlier date but for advice he gave that a claim would be rejected on the basis of medical opinion, the Secretary of State may make payment in respect of a period commencing on, but not in respect of any period before, whichever is the later of—

(a) the date on which the Secretary of State considers that medical opinion had developed to the extent that an award in the claimant's case was justified; and

(b) the date three years before the date of claim.

7.  Where a decision, which falls to be reviewed in the light of a decision of a court or a Commissioner in a case to which the claimant is not party, is revised, no payment may be made pursuant to the revision in respect of any period before the date three years before the decision of the court. U.K.

8.  Where, either upon review of a decision rejecting a claim for pension or following a decision of the President of the Pensions Appeal Tribunals that the decision of a Pensions Appeal Tribunal be treated as set aside by reason of the availability of additional evidence, an award is made on the basis of evidence contained in documents produced by the claimant which were not available to the claimant at the time of the decision which is subject to the review or appeal because those documents were classified at the time, payment may be made in respect of a period commencing on, but not in respect of any period before, the date three years before the date of the application for review or, as the case may be, application to the President of the Pensions Appeal Tribunals that the decision of a Pensions Appeal Tribunal be treated as set aside. U.K.

9.  Notwithstanding paragraph 1(7), where an award is made under article 6 or article 23 without a claim having been made for it, no payment shall be made in respect of a period before whichever is the later of— U.K.

(a) the day following the date of death or termination of service; and

(b) the date three years before the records were delivered to the Secretary of State by the Secretary of State for Defence.

10.  Except in a case to which paragraph 6, 7 or 9 applies, where a claimant satisfies the Secretary of State that— U.K.

(a) he would have made a claim or an application for a review on an earlier date than he actually did but for an act or omission of the Secretary of State or any officer of his carrying out functions in connection with war pensions, defence or foreign and commonwealth affairs, which wrongly caused him to delay the claim or application and that act or omission was the dominant cause of the delay; and

(b) that act or omission continued to be the dominant cause of the delay up to the moment the claim or application was made

any reference in this Schedule to the date of a claim or date of application for review shall be treated as a reference to the earlier date referred to in this paragraph.

11.  Where the Secretary of State reviews a decision which was made before 16th August 1943 and he is satisfied that an award would have been made in respect of a person provided the onus of proof were not on that person and that person were given the benefit of any reasonable doubt, he may make payment in respect of the period commencing on, but not in respect of any period before, that date. U.K.

[F5 12.   Paragraphs 4 and 8 apply to a decision of the First-tier Tribunal that a decision made by it be treated as set aside as they apply to a decision of the President of the Pensions Appeals Tribunal that the decision of a Pensions Appeal Tribunal be treated as set aside.] U.K.

Textual Amendments

F5 Sch. 3 para. 12 inserted (3.11.2008) by The Tribunals, Courts and Enforcement Act 2007 (Transitional and Consequential Provisions) Order 2008 (S.I. 2008/2683), arts. 1, 6(1), Sch. 1 para. 314(b)