The Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Amendment Order 1997

Article 10(3)

SCHEDULE 7 schedule to be substituted for schedule 3

“SCHEDULE 3 commencing dates of awards under this order

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 sub-paragraph (2) which is relevant in the claimant’s case.

(2) The date specified in this sub-paragraph is whichever date is the latest in time of the date –

(a) following the date of termination of service or, in a case under Part IV, following the date of death of the member;

(b) of the claim;

(c) of the last application for review; or

(d) of an application for appeal under section 1, 4 or 5 of the Pensions Appeal Tribunals Act 1943(1) or section 8 or the War Pensions (Administrative Provisions) Act 1919(2).

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

(4) This sub-paragraph is satisfied where the date of –

(a) the claim;

(b) the application for review;

(c) the application for an appeal under section 1, 4 or 5 of the Pensions Appeal Tribunals Act 1943 or section 8 of the War Pensions (Administrative Provisions) Act 1919,

whichever is appropriate in the claimant’s case, is made within 3 months of–

(i) the date of termination of service or, in the case of an award under Part IV, the date of death of a member, or

(ii) except where sub-head (i) applies, the date of issue of notification of a decision on the claim, review or, as appropriate, on appeal under section 1, 4 or 5 of the Pensions Appeal Tribunals Act 1943 or section 8 of the War Pensions (Administrative Provisions) Act 1919.

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

(6) 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) 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 3B(3) on the date on which the relevant conditions of entitlement to the pension or allowance first became satisfied.

2.— (1) In a case to which section 168 of the Pensions Act 1995(4) (war pensions for widows: effect of remarriage) or article 42(1A)(5) (eligibility of widow under Part IV upon ceasing to live with another as a spouse) applies, paragraph 1(4)(c)(i) of this Schedule shall have effect as if, for the words “termination of service or, in the case of an award under Part IV, the date of death of a member”, there were substituted the words to “the termination of the claimant’s marriage, judicial separation of the parties or, as the case may be, the date the claimant ceased to live as a spouse with another”.

(2) In this paragraph “termination of marriage” and “judicial separation” have the meanings they bear in section 168 of the Pensions Act 1995.

3.   Where an award is made pursuant to a successful appeal to the High Court(6), 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 High Court.

4.   Where an award or adjustment thereto 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 –

(a) subject to paragraph 8, payment shall not be made in respect of any period before the date of the application to the President of the Pensions Appeal Tribunals where the ground for setting the decision of the Pensions Appeal Tribunal aside is the availability of additional evidence(7);

(b) 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 Tribunals 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(8).

5.   Where a claimant satisfies the Secretary of State that –

(a) he would have made a claim, an application for a review or, as the case may be, an application for an appeal 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 a claim, application for review, or application for an appeal shall be treated as reference to the later of —

(i) the earlier date; and

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

6.— (1) Where, upon 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—

(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 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.

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 was not available to the claimant at the time of the decision which is the subject of the review or appeal because those documents were classified at that 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.

9.   Notwithstanding paragraph 1(7), where an award is made under article 10 (pension for disablement) or article 29 (pensions to widows) without a claim having been made for it(9) no payment shall be made in respect of a period before whichever is the later of:—

(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 —

(a) he would have made a claim, an application for a review or, as the case may be, an application for an appeal on an earlier date than he actually did but for an administrative error on the part of the Secretary of State, the Secretary of State for Defence, or the Secretary of State for the Foreign and Commonwealth Office; and

(b) that error 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, date of application for review or application for an appeal 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 16 August 1943 and 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.”

(1)

1943 c. 39; section 1 was amended by the Pensions Appeals Tribunals Act 1949 (c. 13), section 1(1). Section 5 was amended by the Chronically Sick and Disabled Persons Act 1970 (c. 44), section 23(2) and the Social Security Act 1980 (c. 30), section 16(3).

(2)

1919 c. 53, section 8 was amended by the War Pensions Act 1920 (c. 27), section 8(2) and the Statute Law (Repeals) Act 1986 (c. 12), section 1(1) and Schedule 1, Part III.

(3)

Article 3B was inserted by S.I. 1996/2882.

(4)

1995 c. 26.

(5)

Article 42(1A) is inserted by this Order: see above.

(6)

See section 6(2) of the Pensions Appeals Tribunals Act 1943 (1943 c. 39)

(7)

See section 6(2A)(b)(i) of the Pensions Appeals Tribunals Act 1943 (1943 c. 39); section 6(2A) was inserted by section 23(1) of the Chronically Sick and Disabled Persons Act 1970 (c. 44) and amended by section 43 of the Social Security and Housing Benefits Act 1982 (c. 24)

(8)

See section 6(2A)(b)(i) of the Pensions Appeals Tribunals Act 1943 (1943 c. 39).

(9)

See article 3B which was inserted by article 3 of S.I. 1996/2882.