PART IGENERAL
Citation and commencement1
This Order may be cited as the Armed Forces and Reserve Forces (Compensation Scheme) Order 2005 and shall come into force on 6th April 2005.
Interpretation2
1
In this Order —
“the AFPS 1975” means the occupational pension scheme arrangements, other than the AFPS 2005, that are open to members of the forces and set out in —
- a
Orders in Council made under section 3 of the Naval and Marine Pay and Pensions Act 1865 M1,
- b
the Army Pensions Warrant 1977 M2 and
- c
Orders and regulations made under section 2 of the Air Force (Constitution) Act 1917 M3
or any instrument amending or replacing any of those instruments;
- a
“the AFPS 2005” means the Scheme established in the Armed Forces Pension Scheme Order 2005 M4;
“accredited medical specialist” means a medical practitioner whose name is included in the specialist register kept and published by the General Medical Council as required by the European Specialist Medical Qualifications Order 1995; M5
F8“additional lump sum” means the sum referred to in article 15C;
F6“additional multiple injury lump sum” means the sum referred to in article 15B(2);
F7“appropriate tribunal” means the appropriate tribunal as defined in section 12(1) of the Pensions Appeal Tribunals Act 1943;
“benefit” means a benefit payable under this Order;
“bereavement grant” means the grant referred to in article 21(1)(b);
“child's payment” means the payment referred to in article 21(1)(c);
“claimant” means a person who has claimed benefit, a person to whom benefit has been paid and a person affected by any decision of the Secretary of State made under this Order;
“claim form” means the form referred to in article 36(b);
“death benefit” means a benefit referred in article 21;
“downgraded” means downgraded for medical reasons as a result of which the person downgraded undertakes a reduced range of duties but retains his rank and pay;
“eligible child” has the meaning given in article 23;
“forces” means the armed forces and the reserve forces;
“Gurkha” means a member of the Brigade of Gurkhas F2. . . ;
F3“Gurkha Pension Scheme” means the Gurkha Pension Scheme constituted by the Royal Warrant of 19th December 1949 (see Army Order 151 of 1949);
“guaranteed income payment” is the payment referred to in article 14(1)(b);
“ill-health pension” means a pension paid under rule D5 or D6 of the AFPS 2005;
“illness” means a physical or mental disorder included either in the International Statistical Classification of Diseases and Related Health Problems M6 or in the Diagnostic and Statistical Manual of Mental Disorders; M7
“injury” includes illness;
“injury benefit” means the benefits referred to in article 14(1);
“interim award” means an award under article 44(1) and (2);
“invaliding pension” means a pension paid under the AFPS 1975 under the following:
- d
the Army Pensions Warrant 1977, Part 2, Section 2, article 45 or Part 3, Section 7, article 149;
- e
the Queen's Regulations for the Royal Air Force M8, Chapter 38, Section 2, regulation 2938(2) or Chapter 39, Section 1, regulation 3023(2);
- f
the Order in Council M9 made under the Naval and Marine Pay and Pensions Act 1865, Schedule II, Section 1, Clause 9 or Schedule III Clause 19.
or any later provisions corresponding to the provisions referred to in sub-paragraphs (a), (b) or (c);
- d
F9“lump sum” means, except in the expressions “additional multiple injury lump sum” and “additional lump sum”, the sum referred to in article 14(1)(a);
“predominant” means more than 50 per cent;
“service” means service as a member of the forces, except as provided in article 10;
“substantial and exclusive relationship” shall be construed in accordance with Schedule 1;
“surviving adult dependant” has the meaning given in article 22;
“survivor's guaranteed income payment” is the payment referred to in article 21(1)(a);
“tariff” means the tables of injuries and amounts set out in Schedule 4;
“temporary award” means an award referred to in article 20;
“Veterans Agency” means an office designated by the Secretary of State for the purpose of receiving and determining applications for benefit.
2
In this Order, any reference to claiming a benefit or to a claim
a
shall be treated as including a case where, by virtue of article 37, it is not a condition of entitlement to benefit that a claim be made;
b
in the case of a claim for injury benefit, means a claim for one injury even where claims for more than one injury are made on the same claim form.
3
In this Order, a person is “discharged on medical grounds” if he is required to be discharged on the grounds that he is medically unfit to continue in service, and—
b
in the case of a Gurkha who is a member of the Gurkha Pension Scheme, is as a result entitled to a disability pension
Definition of “late onset illness”3
A “late onset illness” is—
a
a malignancy, or a disorder of the liver, kidneys or central nervous system, in each case which is capable of being caused by an occupational exposure occurring more than 5 years before the onset of the illness or the date of death as the case may be;
b
a mental disorder which is capable of being caused by an incident occurring more than 5 years before the onset of the illness; or
c
a mental disorder capable of being caused by an incident occurring less than five years before the date of onset of the illness, which disorder is capable of causing the person suffering from it to be unable to seek medical help for the disorder within 5 years of the date of onset of the illness.
Definition of “salary”4
1
Subject to paragraph (3), in this Order “salary”, in relation to a member or former member of the forces in respect of whom benefit is payable, means—
a
basic pay for a person of his rank and seniority, and
b
any other amount if and to the extent that the Secretary of State has determined that it is to be treated as salary.
2
Subject to paragraph (1)(b), “salary” does not include—
a
any allowances,
b
any additional amounts payable in respect of particular qualifications or duties, the location of service or the conditions in which service is temporarily performed, or
c
without prejudice to subparagraphs (a) and (b), any additional amounts payable to medical or dental officers as such.
3
“Salary” does not include any description of payment that the Secretary of State has determined is not to be treated as salary.
Service of documents5
Where by any provision of this Order—
a
any notice or other document is required to be given or sent to the Veterans Agency, that notice or document shall be treated as having been given or sent on the day it is received by that Agency; and
b
any notice or other document is required to be given or sent to any person, that notice or document shall, if sent by post to that person's last known address, be treated as having been given or sent on the day that it was posted.
PART IITHE COMPENSATION SCHEME
The Compensation Scheme6
1
The Compensation Scheme set out in the following provisions of this Order shall be known as the Armed Forces and Reserve Forces Compensation Scheme 2005.
2
Subject to the paragraph 3, the rules of the Scheme are to be construed without reference to any other scheme applicable to the armed forces.
3
Paragraph 2 does not apply where this Scheme makes express reference to any other scheme.
Injury caused by service7
1
F10Subject to articles 15(1A), 15A(1) F11, 15B(1) and 15C(1) Benefit is payable in accordance with this Order to or in respect of a member or former member of the forces by reason of an injury which is caused (wholly or partly) by service where the cause of the injury occurred on or after 6th April 2005.
2
Where injury is not wholly caused by service, benefit is only payable if service is the predominant cause of the injury.
Injury made worse by service8
1
Subject to the following provisions of this article, benefit is payable in accordance with this Order to or in respect of a former member of the forces by reason of an injury made worse by service if the injury—
a
was sustained before he entered service and was recorded in the report of his medical examination when he entered service;
b
was sustained before he entered service but without his knowledge and the injury was not found at that examination; or
c
arose during service but was not caused by service
2
Benefit is only payable under paragraph (1) if, in each case, the injury has been worsened by service and remains worsened by service on—
i
the day on which the member of the forces' service ends, or
ii
the date of claim if that date is later.
3
Subject to paragraph (4), in the case of paragraph (1)(a) and (b), benefit is only payable if—
a
the member of the forces or former member of the forces was downgraded within the period of 5 years starting on the day on which he entered service;
b
the downgrading lasted for a period of at least 6 months (except where the member of the forces was discharged on medical grounds within that period);
c
the member or former member of the forces remains continually downgraded until his service ends; and
d
the worsening was the predominant cause of the downgrading.
4
No benefit is payable where the injury which was sustained before the day on which the member of the forces entered service is worsened—
a
within the period of 6 months; or
b
after the period of 5 years
in both cases starting on that day.
5
In the case of paragraph (1)(c), benefit is only payable if the member of the forces—
a
was downgraded within the period of 5 years starting on the day on which he sustained the injury and remains continually downgraded until his service ends; and
b
the worsening was the predominant cause of the downgrading.
Death caused by service9
1
Benefit is payable in accordance with this Order in respect of a member or former member of the forces by reason of his death where—
a
the death was caused (wholly or partly) by service;
b
the cause of the death occurred on or after 6th April 2005; and
c
one of the conditions specified in paragraph (3) is satisfied.
2
Where the death is not wholly caused by service, benefit is only payable if service is predominant cause of the death.
3
The conditions referred to in paragraph (1) are that the death—
a
occurred in service;
b
occurred within the period of 5 years beginning with the day on which service ends and was caused by:
i
an injury which was caused by service, or
ii
the worsening by service of an injury which existed before or arose during service and which was not caused by service; or
c
occurred more than 5 years after the day on which service ends and—
i
the death is caused by a late onset illness which was caused by service, or
ii
the predominant cause of the death is an injury for which an award of injury benefit has been made where the lump sum fell within levels 1 to 9 of the tariff.
Injury and death – inclusions10
1
Benefit is payable in accordance with this Order to or in respect of a person by reason of an injury sustained F14or worsened or death occurring, while participating in—
a
sporting activities as a player, a referee, an organiser or a representative of a particular sport or sporting organisation where—
i
the Secretary of State has approved the sport as being a sport which enhances the fitness, initiative and endurance of members of the forces, and
ii
the relevant Service has recognised the particular event and the organisation and training for it;
b
activities approved by the relevant Service which are undertaken for the purpose of meeting and maintaining the physical standards required of members of the forces; or
c
adventurous training courses or adventurous expeditions approved by the relevant Service;
F15in each case where service is the predominant cause of the injury, or the worsening of the injury, or of death.
2
For the purposes of paragraph (1)(a)(i), the Secretary of State may approve a single sporting activity or a class of such activities and may approve such activities unconditionally or subject to any specified condition.
3
The activities referred to in paragraph (1) do not include social events or free time associated with those activities.
F164
Benefit is payable in accordance with this Order to or in respect of a person by reason of an injury sustained, or worsened, or a death occurring—
a
while travelling from his home or his place of work to the place where an activity referred to in paragraph (1) is to happen or while travelling back again;
b
where one of the circumstances specified in paragraph (5) applies and where service is the predominant cause of the injury, or the worsening of the injury or death.
F175
The circumstances referred to in paragraph (4)(b) are where the member of the forces—
a
is travelling from his home or his regular place of work to a place of work which is not his regular place of work or while travelling back again except where the travel is during a period of leave;
b
is travelling from a place of work which is not his regular place of work to another place of work which is not his regular place of work;
c
is changing from one regular place of work to another and is travelling from his home or what was his regular place of work to a place of work outside the United Kingdom which is to become his regular place of work or is travelling from what was his regular place of work outside the United Kingdom to his home or to a place of work which is to become his regular place of work; or
d
is required to reside in accommodation provided by the Ministry of Defence for families of members of the forces at a distance of over 50 miles from his regular place of work and is travelling by a reasonably direct route from that accommodation to that place of work or while travelling back again.
6
Benefit is payable in accordance with this Order to or in respect of a person by reason of an injury sustained F18, or worsened, or a death occurring—
a
as a result of acts of terrorism or other warlike activities in each case directed towards him as a member of the forces as such; or
b
while called out to and travelling to an emergency
but only where service is the predominant cause of the injury F19, the worsening of the injury, or death.
7
This article does not apply unless the cause of the injury, F20the worsening of the injury, or the cause of the death, occurred on or after 6th April 2005.
8
In this article, “the relevant Service” means the Army, the Navy, the Air Force or the Reserve Forces as the case may be.
Injury and death - exclusions11
No benefit is payable under this Order to or in respect of a person by reason of—
a
an injury which is predominantly caused or predominantly made worse by, or death which is predominantly caused by—
i
the use or effect of tobacco,
ii
the consumption of alcohol,
iii
medical treatment of the injury except where the treatment is provided while the person sustaining the injury is on military operations outside the United Kingdom and in circumstances relating to service where medical facilities are limited,
iv
the non-therapeutic use of drugs,
v
consensual sexual activities,
vi
except where article 8 applies, events, experiences, exposures and activities occurring before the member of the forces entered service;
b
an illness F21or any associated condition caused by an illness which is—
i
caused by a single gene defect or is predominantly hereditary in origin;
ii
a personality disorder;
iii
an endogenous infection;
iv
an exogenous infection except where the infection is F22a zoonosis, or is endemic to a tropical or a subtropical region and the person infected has been exposed to the infection in the course of his service or where, in a temperate region, there has been an outbreak of the infection in service accommodation or a workplace.
c
a self-inflicted injury whether or not causing death except where the self-inflicting of injury is a result of a mental illness caused by service.
Modifications of provisions for members or former members of the reserve forces and Gurkhas12
1
Schedule 2 shall have effect for the modification of certain provisions of this Order in relation to the reserve forces.
2
Schedule 3 shall have effect for the modification of certain provisions of this Order in relation to Gurkhas F23or former Gurkhas who are not members of the AFPS 1975 or the AFPS 2005.
PART IIIBENEFITS PAYABLE FOR INJURYF49F54
Arts. 15C, 15D inserted (15.12.2008) by The Armed Forces and Reserve Forces (Compensation Scheme) (Amendment No. 3) Order 2008 (S.I. 2008/2942), arts. 1(1), 10
Interpretation of Part III13
In Part III—
a
subject to paragraph (c), “first injury” means, in a case where more than one injury is sustained in one incident, the injury in relation to which the highest amount specified in column (b) of Table 10 is payable and “second injury” and “third injury” shall be construed accordingly;
b
F26. . . any reference to an amount specified in column (b) of Table 10 means the amount specified in that column on the day on which—
i
a claim for benefit is determined under article 43,
ii
a final award is made under article 44
iii
a decision of the Secretary of State is revised under article 45, 47, 48 or 49
iv
as the case may be.
F24c
in a case where more than one injury is sustained in one incident and where article 18 or 19 applies to one or more of the injuries sustained in that incident, for the purposes of the calculation at article 15(2), “first injury” means the injury which would attract the highest relevant amount as described in article 14 and “second injury” and “third injury” shall be construed accordingly.
Description of benefits – injury14
1
Benefits payable for injury are—
a
a lump sum;
b
a guaranteed income payment payable until death.
2
The tariff shall have effect for the purpose of determining the amount of lump sum F31, additional multiple injury lump sum and the guaranteed income payment as follows—
a
in Tables 1 to 9 (inclusive) the injuries in column (b) F27give rise to entitlement at the corresponding tariff level in column (a).
b
F28subject to paragraphs (8) and (9), in Table 10 the amount in column (b) shall be the relevant amount in relation to the injuries of the tariff level referred to in column (a).
3
Subject to article 20, benefits for injury are only payable in respect of injuries specified in column (b) of Tables 1 to 9 (inclusive).
4
Guaranteed income payment is not payable in respect of injuries giving rise to entitlement at levels 12 to 15 of the Tables 1 to 9 (inclusive) of the tariff.
5
A person is only entitled to one guaranteed income payment regardless of the number of injuries which are sustained;
6
If a member of the forces has sustained more than one injury in separate incidents the F29guaranteed income payment which is payable is the highest such payment which has been awarded.
7
Guaranteed income payment is not payable until the day after the day on which the service of the member of the forces to whom it was awarded ends and no such payment is payable in respect of any period before that day.
F308
In the case of an injury to which article 18 applies the relevant amount shall be the amount in article 18(2)(a).
9
In the case of an injury to which article 19 applies the relevant amount shall be the amount in article 19(4).
Amount of lump sum15
1
Where one injury is sustained in one incident, the amount of the lump sum is the relevant amount, described in article 14 (2)(b), applicable to that injury.
F321A
Where the conditions in article 15A apply, that article shall apply in place of paragraphs (2) to (7).
2
Subject to paragraph (3), where more than one injury is sustained in one incident, the amount of the lump sum shall be calculated as follows—
a
for the first injury, 100 per cent. of the relevant amount applicable to that injury;
b
for the second injury, 30 per cent. of the relevant amount applicable to that injury;
c
for the third injury, 15 per cent. of the relevant amount applicable to that injury;
and no further amount shall be paid where four or more injuries are sustained in one incident.
3
The total amount payable under paragraph (2) shall not exceed the amount specified at level 1 in column (a) of table 10.
4
Subject to paragraph (6) where—
a
more than one injury has been sustained in one incident;
b
a claim for injury benefit (“the first claim”) is made for some but not all the injuries; and
c
after notice of the decision on the first claim has been given or sent to the claimant, a further claim for injury benefit is made for other injuries sustained in that incident, the Secretary of State shall F33except where paragraph (6B) applies determine the further claim by recalculating the amount of the lump sum in accordance with paragraphs (2) and (3) taking into account all the injuries sustained in that incident which have been the subject of a claim.
5
In determining the further claim under paragraph (4) the Secretary of State may
a
increase the amount of the lump sum awarded in respect of the first claim; or
b
award no, or no further, amount of benefit.
6
Where the Secretary of State increases the amount of the lump sum awarded in respect of the first claim, account shall be taken of the amount of benefit paid in respect of the first claim and only the difference between the earlier award F36(including any award of additional lump sum) and the later award shall be paid.
F346A
Paragraph 6B applies where—
a
more than one injury is sustained in one incident;
b
the cause of the injuries occurred on or after F378th February 2008;
c
a further claim for injuries is made pursuant to paragraph (4) and the Secretary of State determines that the amount of lump sum awarded in respect of the first claim shall be increased; and
d
the relevant percentage for the purpose of calculating the amount of a guaranteed income payment for one or more such injuries is recalculated pursuant to article 16(4) and is determined as 100 per cent.
6B
The first claim shall be recalculated pursuant to article 15A and the further claim determined pursuant to that article, save that account shall be taken of the amount of benefit paid in respect of the first claim and only the difference between the earlier award F38(including any award of additional multiple injury lump sum and any award of additional lump sum) and the later award shall be paid.
7
Paragraphs (4), (5) and (6) F35(6A) and (6B) shall not apply to a further claim for injury benefit referred to in paragraph (4)(a) unless that claim is made within the time specified in articles 39, 40 and 41 for making a claim.
Amount of lump sum where 100 per cent guaranteed income payment determined15A
1
) This article applies where—
a
more than one injury is sustained in one incident;
b
the cause of the injuries occurred on or after F508th February 2008; and
c
the relevant percentage for the purpose of calculating the amount of a guaranteed income payment in accordance with article 16 for one or more such injuries is 100 per cent.
2
Subject to paragraph (3) the amount of the lump sum is the total of the relevant amount (described in article 14(2)(b)) applicable to each injury.
3
The total amount payable under paragraph (2) shall not exceed the amount specified at level 1 in column (a) of table 10.
4
Subject to paragraph (6) where—
a
a claim for injury benefit (“the first claim”) is made for some but not all the injuries sustained in one incident; and
b
after notice of the decision on the first claim has been given or sent to the claimant, a further claim for injury benefit is made for other injuries sustained in that incident, the Secretary of State shall determine the further claim by recalculating the amount of the lump sum in accordance with paragraphs (2) and (3) taking into account all the injuries sustained in that incident which have been the subject of a claim.
5
In determining the further claim under paragraph (4) the Secretary of State may—
a
increase the amount of the lump sum awarded in respect of the first claim; or
b
award no, or no further, amount of benefit.
6
Where the Secretary of State increases the amount of the lump sum awarded in respect of the first claim, account shall be taken of the amount of benefit paid in respect of the first claim and only the difference between the earlier award F51(including any award of additional lump sum) and the later award shall be paid.
7
Paragraphs (4), (5) and (6) shall not apply to a further claim for injury benefit referred to in paragraph (4)(a) unless that claim is made within the time specified in articles 39, 40 and 41 for making a claim.
Additional multiple injury lump sum15B
1
This article applies where—
a
more than one injury is sustained in one incident;
b
the cause of the injuries occurred on or after 6th April 2005 and before F528th February 2008;
c
an entitlement to injury benefit has been determined in respect of more than one such injury either before or after F528th February 2008; and
d
the relevant percentage for the purpose of calculating the amount of a guaranteed income payment in accordance with article 16 for one or more such injuries is 100 per cent.
2
The Secretary of State shall award an additional benefit (“the additional multiple injury lump sum”) in accordance with this article.
3
The amount of the additional multiple injury lump sum is, subject to paragraphs (4) and (5), the total of the relevant amount (described in article 14(2)(b)) applicable to each injury in respect of which a lump sum would have been payable but for article 15(2).
4
Account shall be taken of the lump sum previously awarded and, subject to paragraph (5), the difference between that award and the amount of the additional multiple injury lump sum calculated in accordance with paragraph (3) shall be paid.
5
The total amount payable in accordance with this article shall not, taking into account the amount of lump sum previously awarded, exceed the amount specified at level 1 in column (a) of Table 10.
6
F53. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Additional lump sum15C
1
Subject to article 15D, the Secretary of State shall award a benefit (“the additional lump sum”) for a qualifying injury in accordance with this article.
2
Only one award of additional lump sum shall be made for a qualifying injury.
3
The amount of the additional lump sum is, subject to paragraph (4), A – B.
4
The total amount payable under paragraph (3) shall not, taking into account all previous awards of benefit applicable to the qualifying injury or qualifying injuries sustained in one incident, exceed the amount specified at level 1 in column (a) of the Table in paragraph (6).
5
In this article—
a
“A” means the combined total of the amount of benefit that would be awarded for each qualifying injury sustained in one incident if, in making the determination as to the relevant amount of benefit that was to be awarded —
i
the reference in article 14(2)(b) to the amount in column (b) of Table 10 was read as a reference to the amount in column (b) of the Table in paragraph (6); and
ii
the reference in articles 15(3), 15A(3) and 15B(5) to the amount specified at level 1 in column (a) of Table 10 was read as a reference to the amount specified at level 1 in column (a) of the Table in paragraph (6);
b
“B” means the combined total of all previous awards of benefit applicable to the qualifying injury or qualifying injuries sustained in one incident;
c
“benefit” means a lump sum or an additional multiple injury lump sum;
d
“determination” means the determination by the Secretary of State in accordance with this Order as to the total of all awards of benefit applicable to the qualifying injury or qualifying injuries sustained in one incident;
e
“qualifying injury” means an injury in respect of which an entitlement to benefit has been determined before 15th December 2008;
f
“relevant amount” has the meaning described in article 14(2)(b).
6
The Table referred to in paragraphs (4) and (5) is—
Column (a)Tariff level | Column (b)Amount |
|---|---|
1 | £570,000 |
2 | £402,500 |
3 | £230,000 |
4 | £172,500 |
5 | £115,000 |
6 | £92,000 |
7 | £63,825 |
8 | £48,875 |
9 | £34,100 |
10 | £23,100 |
11 | £13,750 |
12 | £9,075 |
13 | £5,775 |
14 | £2,888 |
15 | £1,155. |
Exception to entitlement to additional lump sum15D
1
This article applies where—
a
a qualifying injury has been sustained; and
b
on or after 15th December 2008 the award of benefit applicable to that qualifying injury is —
i
increased under article 15(5) or 15A(5);
ii
revised under article 45, 47, 48 or 49; or
iii
revised by a Pension Appeal Tribunal, an appropriate Social Security Commissioner, the First-tier Tribunal, the Upper Tribunal or a court.
2
Notwithstanding article 15C, there is no entitlement to an additional lump sum award for a qualifying injury if such an award has not been paid before the day on which the award of benefit applicable to that qualifying injury is increased or revised.
3
In this article, “benefit” and “qualifying injury” have the same meaning as in article 15C.
Amount of guaranteed income payment16
1
The annual amount of guaranteed income payment is the relevant percentage of the base figure.
2
The base figure is calculated by multiplying the relevant salary by the relevant factor.
3
In this article—
a
where one injury is sustained in one incident, “the relevant percentage” is—
i
100 per cent. where the injury gives rise to entitlement at level 1, 2, 3 or 4 of table 10 of the tariff (band A),
ii
75 per cent. where the injury gives rise to entitlement at level 5 or 6 of table 10 of the tariff (band B),
iii
50 per cent. where the injury gives rise to entitlement at level 7 or 8 of table 10 of the tariff (band C), and
iv
30 per cent. where the injury gives rise to entitlement at level 9, 10 or 11 of table 10 of the tariff (band D);
b
where more than one injury is sustained in one incident and the first and second injuries are specified in the same band, “the relevant percentage” is the percentage specified in the band immediately above the band in which the injuries are specified (except where the injuries are specified in band A in which case “the relevant percentage” is 100 per cent.);
c
where more than one injury is sustained in one incident and the first and second injuries are specified in different bands, “the relevant percentage” is the percentage specified in respect of the band in which the injury attracting the highest lump sum is specified.
4
Where the Secretary of State recalculates the amount of a lump sum under article 15(4) and, as a result, the first injury falls within a higher band of Table 10 of the tariff than it did before the recalculation, the Secretary of State shall then recalculate the amount of guaranteed income payment payable under paragraph (3)(b) or (c) of this article on the basis of the increased lump sum.
5
In this article—
“the relevant salary” is the salary of the member of the forces on the day on which his service ends or, in the case of a former member of the forces, his salary on that day up-rated for inflation to the date of claim;
“the relevant factor” is the figure specified in column (b) of the table set out in Schedule 5 in relation to the relevant age specified in column (a); and
“the relevant age” is the age of the member of the forces on the day on which his service ends or, in the case of a former member of the forces, the date of claim.
6
Up-rating a former member of the forces' salary for inflation for the purposes of determining “the relevant salary” under this article shall be carried out in accordance with article 64.
More than one injury - general17
1
Except where article 18 or 19 applies, this article applies where a member of the forces sustains an injury on more than one occasion and in each case the injury is caused by service.
2
Where a lump sum is payable for a second or subsequent injury, that sum is payable in full and guaranteed income payment is payable with reference to that lump sum but subject to article 14(5) and (6).
Injury to a pair of like parts of the body18
1
This article applies where a member of the forces loses, or loses the function of, first one (“the first injury”) and later, in another incident, the other (“the second injury”) of a pair of like parts of the body specified in paragraph (4) and—
a
both the injuries are caused by service; and
b
an award of injury benefit has been made for the first injury.
2
Where paragraph (1) applies—
a
the lump sum for the second injury is Y – X;
b
any award of guaranteed income payment made for the first injury ceases to have effect; and
c
subject to article 14(5) and (6), guaranteed income payment is payable for the second injury as if the lump sum for that injury was for injury to both of the pair of like parts of the body.
3
In this article—
a
Y is the amount in column (b) of Table 10 of the tariff corresponding with the tariff level specified in column (a) of the relevant table for the loss of both of the pair of like parts of the body; and
b
X is the amount in column (b) of Table 10 of the tariff corresponding with the tariff level specified in column (a) of the relevant table for the loss of one of the pair of like parts of the body.
4
The pairs of like parts of the body to which this article applies are—
arms or part of an arm,
feet (but not toes),
hands (but not fingers),
kidneys,
legs or part of a leg,
total loss of sight in both eyes,
total loss of hearing in both ears.
More than one injury to the same part of the body19
1
This article does not apply to an injury which is a fracture or a dislocation.
2
Paragraphs (3) and (4) of this article apply where a member of the forces sustains an injury to a part of the body (“the first injury”) and later, in another incident, sustains another injury to the same part of the body (“the second injury”) and—
a
both injuries are caused by service; and
b
an award of injury benefit has been made for the first injury.
3
Subject to article 14(5) and (6) where the second injury is sustained after the relevant period has ended, injury benefit is payable in accordance with this Order.
4
Where the second injury is sustained before the relevant period ends—
a
if the second injury is an injury which gives rise to entitlement at the same or a lower level of column (a) of Table 10 of the tariff compared with the first injury, the lump sum payable for the second injury is the relevant percentage of the lump sum which would, but for this article, be payable for that injury;
b
if the second injury is an injury which gives rise to an entitlement at a higher level in column (a) of Table 10 of the tariff compared with the first injury, the lump sum payable for the second injury under this article is (A - B) + P; and
c
subject to article 14(5) and (6), guaranteed income payment is payable in accordance with this Order and, for the purposes of determining under article 14(5) which is the highest guaranteed income payment that has been awarded, subparagraphs (a) and (b) of this paragraph have no effect.
5
Paragraph (6) of this article applies where a member of the forces sustains a third or a fourth or more injuries to the same part of the body and all the injuries are caused by service.
6
Where paragraph (5) applies, paragraph (2) to (4) apply as though references in those paragraphs to—
a
the first injury were references to the second injury (or to the third or fourth injury and so on where further injuries are sustained to the same part of the body);
b
the second injury were references to the third injury (or to the fourth or fifth injury and so on where further injuries are sustained to the same part of the body); and
c
the relevant period were references to the period of 9 years starting with the date on which the injury referred to in subparagraph (a) of this paragraph was sustained.
7
In this article—
a
A is the lump sum which would, but for this article, be payable for the second injury;
b
B is the F39total of all awards of benefit which have been awarded for the first injury;
c
P is the relevant percentage of the lump sum which would be awarded for the second injury if that injury gave rise to entitlement at the same level in column (a) of Table 10 of the tariff as the first injury;
d
“a part of the body” means shoulder, elbow, wrist, hip, knee, ankle joints and associated ligaments or cervical, thoracic or lumbosacral sections of the back;
e
“relevant period” means a period of 9 years starting with the date on which the first injury is sustained;
f
“relevant percentage” means the percentage specified in column (b) of the following table in relation to the number of whole years specified in paragraph (a) of that table being the number of whole years the second injury is sustained after the first injury was sustained.
The number of whole years | The percentage paid |
|---|---|
(a) | (b) |
Less than 1 | 10 per cent. |
1 | 20 per cent. |
2 | 30 per cent. |
3 | 40 per cent. |
4 | 50 per cent. |
5 | 60 per cent. |
6 | 70 per cent. |
7 | 80 per cent. |
8 | 90 per cent. |
Temporary Awards20
1
Where the Secretary of State considers that—
a
a person has sustained an injury of a description for which no provision is made in the tariff F46in force on the date on which the claim for benefit was made; and
b
that injury is sufficiently serious to warrant an award of injury benefit F43or of an additional multiple injury lump sum; and
c
he shall make a temporary award in respect of that person relating to the level of the tariff which he considers appropriate for that injury.
2
The amount of the lump sum F44 or of the additional multiple injury lump sum payable under a temporary award is the amount which would have been payable had the injury been included in the level of the tariff which the Secretary of State considers appropriate for the injury.
3
Where guaranteed income payment is payable under a temporary award, the amount payable is that which would have been payable had the injury been included in the tariff at the level which the Secretary of State considers appropriate for the injury.
F403A
The making of a temporary award does not give rise to a right to—
a
a reconsideration of the decision under article 45; or
b
a review of the decision under articles 47 or 48.
4
F47Except where paragraph (6) applies If the Secretary of State—
a
does not, within the period of one year starting with the date on which the temporary award is given or sent to the claimant, amend this Order by including the injury for which the temporary award is made in the level of the tariff which he considers appropriate for F41 that injury—
i
he shall issue a decision refusing to make a permanent award of benefit in favour of the claimant, and
ii
guaranteed income payment shall cease to be payable under the temporary award at the end of the period but no amount, F45of any lump sum, of any additional multiple injury lump sum or of any guaranteed income payment paid in accordance with that award is recoverable
b
does, within that period, so amend this Order—
i
F42he shall issue a decision making a permanent award in favour of the claimant, which award shall take effect on the day on which the amending Order comes into force, and
ii
guaranteed income payment shall continue to be paid in accordance with this Order.
F485
Where paragraph (6) applies the Secretary of State shall—
a
issue a decision making a permanent award of benefit in favour of the claimant, which award shall take effect from the day on which the temporary award was made; and
b
guaranteed income payment shall continue to be paid in accordance with this Order.
6
This paragraph applies where the Secretary of State has, in the period since the date on which the claim for benefit was made and before he made a temporary award in respect of that person, amended this Order by —
a
including an injury of a description which is the same as the injury in respect of which the temporary award was made; and
b
which is at the same level of the tariff in respect of which the temporary award was made.
PART IVBENEFITS PAYABLE FOR DEATH
Description of benefits - death21
1
Benefits payable for the death of a member of the forces or a former member of the forces are—
a
a survivor's guaranteed income payment payable until death to his surviving spouse, civil partner or his surviving adult dependant;
b
a bereavement grant payable to his surviving spouse, civil partner or surviving adult dependant;
c
a child's payment payable to or in respect of an eligible child.
2
If the member or former member of the forces and the surviving spouse married less than 6 months before the death of the member or former of the forces, the Secretary of State may withhold benefit under this article.
3
If the member or former member of the forces and the civil partner formed their partnership less than 6 months before the death of the member or former member, the Secretary of State may withhold benefit under this article.
4
Where a member was a member of the AFPS 2005 and dies in service, a bereavement grant is not payable except in the circumstances specified in paragraph (5).
5
The circumstances referred to in paragraph (4) are that the salary of the member of the forces on the day on which he died is less than the amount of the bereavement grant.
Meaning of “surviving adult dependant”22
A person is a surviving adult dependant in relation to a member or former member of the forces if, at the time of the member's death—
a
the person and the member were cohabiting as partners in a substantial and exclusive relationship;
b
the member leaves no surviving spouse or civil partner;
c
the person and the member were not prevented from marrying or forming a civil partnership; and
d
either the person was financially dependent on the member or they were financially interdependent.
Meaning of “eligible child”23
1
In this Order, “eligible child” in relation to a deceased member of the forces or a deceased former member of the forces, means—
a
a child or an adopted child of the member who meets any of the conditions specified in paragraph (2); and
b
any other child or young person who—
i
meets any of those conditions, and
ii
was financially dependent on the member or former member of the forces on the day of his death.
2
The conditions referred to in paragraph (1) are that the person is—
a
aged under 18;
b
in full-time education or vocational training and is aged under 23; or
c
unable to engage in gainful employment because of physical or mental disability from which the person began to suffer before the age of 23.
Eligible child - further provisions24
1
A person who is aged under 19 on the day on which he ceases to be in full-time education is treated as being in such education until the first of the following days after he so ceases—
a
the second Monday in January;
b
the second Monday after Easter Monday;
c
the second Monday in September;
d
his 19th birthday;
e
the day on which he becomes engaged full-time in gainful employment.
2
A person who, on the day of the death of a member or former member of the forces, is aged under 23 and taking a break from full-time education or vocational training not exceeding one academic year is treated as continuing such education or training during the break for the purpose of determining whether the person is an eligible child on that day.
3
A person who, on the day of the death of a member or former member of the forces—
a
has finished full-time education at school;
b
has not started further full-time education or vocational training; and
c
is taking a break not exceeding 15 months
is treated as continuing such education or training during the break for the purposes of determining whether the person is an eligible child on that day.
4
An eligible child—
a
who takes a break from full-time education or vocational training not exceeding one academic year; or
b
who—
i
finishes full-time education at school,
ii
takes a break not exceeding 15 months before starting further full-time education or vocational training,
shall be treated as continuing such education or training during one academic year in the case of paragraph (a) and during 15 months in the case of paragraph (b) for the purpose of determining whether the person is an eligible child during the break.
5
A person aged over 17 and under 23 who has ceased full-time education or vocational training because of ill health is treated, for the purpose of determining whether he is an eligible child, as continuing such education or training until either—
a
he resumes such education or training; or
b
he is no longer ill and does not resume such education or training; or
c
his ill health is such that he is unable to resume such education or training.
6
Nothing in paragraphs (2), (3) or (4) requires child's payment to be paid in respect of such a child during the break.
7
A person is no longer treated as an eligible child if a break referred to in paragraph (2), (3), (4) or (5) lasts for longer than the periods mentioned in those paragraphs.
Children born after the death of a member or former member of the forces25
1
A child who is born after the death of a member or a former member of the forces is only treated as an eligible child of that member if the child is born before the first anniversary of the death of the member or former member.
2
No child's payment is payable in respect of any period before the birth of such a child.
Amount of survivor's guaranteed income payment26
1
Subject to paragraph (5) the annual amount of survivors' guaranteed income payment is 60 per cent. of the base figure.
2
The base figure is calculated by multiplying the relevant salary by the relevant factor.
3
In this article—
“the relevant salary” is the salary of the member of the forces on the day on which he died or, in the case of a former member of the forces, his salary on the day on which his service ends up-rated for inflation to the date of claim;
“the relevant factor” is the figure specified in column (b) of the table set out in Schedule 5 in relation to the relevant age specified in column (a);
“the relevant age” is the age of the member or former member of the forces as the case may be on the day on which he died.
4
Up-rating a former member of the forces salary for inflation for the purposes of determining “relevant salary” under this article shall be carried out in accordance with article 64.
5
In the event that there is more than one surviving spouse entitled to the survivor's guaranteed income payment, the annual amount to which each such surviving spouse is entitled shall be 60 per cent. of the base figure, divided by the number of surviving spouses so entitled at the time of the death of the member or former member of the armed forces.
Amount of bereavement grant27
1
Subject to the following provisions of this article, the amount of the bereavement grant payable in respect of the death of a member or former member of the forces is £20,000.
2
Where a member of the forces dies in service—
a
if he was a member of the AFPS 1975, the bereavement grant is paid in full;
b
if he was a member of the AFPS 2005, the amount of the bereavement grant is the difference between the salary of the member of the forces on the day on which he died and the bereavement grant.
3
Where a former member of the forces dies, the bereavement grant is payable in full
4
In the event that there is more than one surviving spouse entitled to the bereavement grant, the amount to which each such surviving spouse is entitled shall be F55the amount payable at paragraphs (2) or (3), divided by the number of surviving spouses so entitled at the time of the death of the member or former member of the armed forces.
Amount of child's payment28
1
The annual amount of child's payment is the relevant percentage of the base figure or, in the circumstances specified in paragraphs (3)(b) and (4)(b), the amount referred to in those subparagraphs.
2
The base figure is calculated by multiplying the relevant salary by the relevant factor.
3
Where a member of the forces or former member of the forces dies leaving a surviving spouse, a civil partner or a surviving adult dependant—
a
the relevant percentage is—
i
15 per cent. for each of the first 2 eligible children;
ii
10 per cent. for the third eligible child; and
b
where there are more than 3 eligible children, the amount referred to in paragraph (1) is an amount obtained by dividing 40 per cent. of the base figure by the number of eligible children left by the member or former member of the forces.
4
Where a member or a former member of the forces dies without leaving a surviving spouse, a civil partner or a surviving adult dependant but leaves—
a
no more than 4 eligible children, the relevant percentage is 25 per cent.;
b
more than 4 eligible children, the amount referred to in paragraph (1) is an amount obtained by dividing the base figure by the number of eligible children.
F564A
A child's payment will be recalculated, in the manner described at paragraph (4B), on the death of a person —
a
who was a surviving spouse, civil partner or surviving adult dependant of a member or a former member of the forces; and
b
who has been in receipt of a survivor's guaranteed income payment; and
c
where there is no other surviving spouse entitled to a survivor's guaranteed income payment.
4B
The child's payment is to be recalculated—
a
in accordance with paragraph (4), and
b
as if the member or former member of the forces had died without leaving a surviving spouse, civil partner or surviving adult dependant, and
the recalculated child's payment becomes payable on the day after the date on which the death of the surviving spouse, civil partner or surviving adult dependant occurred.
5
Where a child ceases to be an eligible child, there shall be no adjustment in the amount of child's payment payable to the other children who receive child's payment as a result of the same calculation.
6
In this article—
“the relevant salary” is the salary of the member of the forces on the day on which he died or, in the case of a former member of the forces, his salary on the day on which his service ends up-rated for inflation to the date of claim;
“the relevant factor” is the figure specified in column (b) of the table set out in Schedule 5 in relation to the relevant age specified in column (a);
“the relevant age” is the age of the member of the forces or the former member of the forces on the day on which he died.
7
Up-rating a former member of the forces' salary for the purposes of determining “the relevant salary” under this article shall be carried out in accordance with article 64.
Awards of child's payment: later adjustment29
1
This article applies where, after the death of a member or former member of the forces—
a
a child's payment is paid in respect of one or more persons under this Part on the basis that they were eligible children at the date of the member's death and that there were then no other eligible children; and
b
subsequently it appears—
i
that a person in respect of whom such a payment has been paid was not then an eligible child, or
ii
that a further person was then an eligible child, or
iii
that a child who was born after the member's death is an eligible child.
2
The Secretary of State may make such adjustments in the amount of the child's payment payable in respect of the children in question as are required in view of the facts as they subsequently appear.
3
Paragraph (2) does not affect the Secretary of State's right to recover a payment or overpayment in any case where he considers it appropriate to do so.
Children entitled to three or more awards of child's payment30
1
This paragraph applies if, apart from this paragraph, child's payment would be payable in respect of the same child under article 21(1) as a result of the death of more than two members of the forces or former members of the forces.
2
Only child's payments payable as a result of the death of two of the members of the forces or former members of the forces which together result in the payment of the greatest annual amount in respect of the child are payable.
PART VREDUCTION OF BENEFIT
Reduction of guaranteed income payment, survivor's guaranteed income payment and child's payment to take account of other amounts.31
1
Where a person is entitled to guaranteed income payment, survivor's guaranteed income payment or child's payment for any period during which the person is also entitled to—
a
a pension under the AFPS 1975 or the AFPS 2005 (“a pension”); or
b
a payment under the Armed Forces Early Departure Payments Scheme Order 2005 M13 (“a payment”)
the guaranteed income payment, the survivor's income payment or the child's payment as the case may be is reduced in accordance with paragraphs (2) and (3).
2
Where a person is entitled to guaranteed income payment for any period during which he is also entitled—
a
to a payment, or to a pension which is not an invaliding pension or ill-health pension paid for the same injury for which the guaranteed income payment is paid, then the amount of the guaranteed income payment is reduced by 75 per cent. of the amount of that pension or payment;
b
to an invaliding pension or ill-health pension which is paid for the same injury for which the guaranteed income payment is paid then the amount of guaranteed income payment is reduced by the full amount of the invaliding pension or ill-health pension.
3
Where a person is entitled to survivor's guaranteed income payment or child's payment for any period during which he is also entitled to a pension then the amount of the survivor's guaranteed income payment or child's payment is reduced by 75 per cent. of the amount of that pension.
4
In this article any reference to a pension, invaliding pension, ill-health pension or a payment means the gross amount of that pension, invaliding pension, ill-health pension or payment.
Reduction in benefit to take account of awards of damages32
1
Where the Secretary of State is satisfied that—
a
damages have been or will be recovered by any person in respect of an injury or condition for which benefit is payable; or
b
damages have been or will be recovered by any person in respect of the death of a person for which benefit is payable
he may take those damages into account against any benefit which might otherwise be payable under this Order and may withhold or reduce any such benefit accordingly.
2
For the purposes of this article, damages include any payment received as a result of a claim made—
a
in respect of an injury or condition for which benefit is payable; or
b
in respect of the death of a person for which benefit is payable
whether or not the payment is made in pursuance of a judgement or order of a court of any jurisdiction or by way of settlement or compromise of the claim and whether or not proceedings are instituted to enforce the claim.
3
Where compensation is paid—
a
under the Criminal Injuries Compensation Scheme established under the Criminal Injuries Compensation Act 1995 M14;
b
under the Criminal Injuries (Compensation)(Northern Ireland) Order 1988 M15; or
c
under the scheme established by the Ministry of Defence for the purposes of paying compensation to members of the forces who suffer injury as a result of a crime committed outside the United Kingdom
the person to whom or for whose benefit the compensation is paid shall be treated as recovering damages and the compensation paid shall be treated as the damages recovered.
Abatement of awards in respect of Social Security benefits33
Where benefit is awarded under this scheme to or in respect of a person for any past period for which benefit under the Social Security and Contributions and Benefits Act 1992 M16 or the Jobseekers Act 1995 M17, or any legislation in Northern Ireland corresponding thereto, had been paid to or in respect of that person, the total amount of benefit so awarded may be abated by the amount by which the amount of benefit so paid exceeds what would have been payable for that period had the benefit been concurrently payable.
Negligence or misconduct34
The Secretary of State may withhold up to 40 per cent. of benefit where the negligence or misconduct of a member or former member of the forces contributed to his injury or death.
PART VACESSATION OF BENEFIT
Cessation of guaranteed income payment and survivor's guaranteed income payment on admission to the Royal Hospital, Chelsea34A
Any guaranteed income payment and survivor's guaranteed income payment payable to a former member of the forces will cease to be paid on his admission to the Royal Hospital, Chelsea, as an in-pensioner but may be restored, by the Secretary of State, if the former member of the forces subsequently leaves the hospital.
PART VICLAIMS
Entitlement to benefit dependant on claim35
1
Except as provided in article 37, no person is entitled to any benefit unless, in addition to any other conditions relating to that benefit being satisfied, he makes a claim for it in the manner, and within the time, specified in the following provisions of this Part.
2
Where a person who is in service on or after 6th April 2005 or a surviving spouse, surviving civil partner or surviving adult dependant of such a person makes a claim for a pension for disablement or death under The Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 1983 M18, the Secretary of State shall treat that claim as also being a claim for benefit under this Order.
Manner of making a claim36
A claim for benefit shall be—
a
in writing;
b
on a form approved for that purpose by the Secretary of State;
c
signed by or on behalf of the person claiming benefit; and
d
given or sent to the Veterans Agency within the time specified in article 39, 40 or 41 whichever is applicable.
Cases where claims are not required37
1
It is not a condition of entitlement to benefit that a claim be made for it where—
a
a member of the forces is discharged on medical grounds; or
b
a member of the forces dies whilst serving in the forces.
F571A
2
Notwithstanding paragraph (1), where a member of the forces dies in the circumstances specified in that paragraph leaving an eligible child and either—
a
leaves no surviving spouse, civil partner or surviving adult dependant; or
b
the child is not living with the surviving spouse, civil partner or surviving adult dependant as the case may be on the date on which the member of the forces died
it is a condition of entitlement to child's payment that a claim is made by or on behalf of the child.
3
Paragraph (1)(a) only applies to injury benefit for the injury which caused the member of the forces to be discharged on medical grounds and any injuries arising from that injury or from the same incident that caused that injury.
Date of claim38
1
Subject to paragraphs (2) and (3), the date on which a claim is made is the date on which it is received by the Veterans Agency.
2
Where, not more than 3 months before the date on which a claim for benefit is made, the person making the claim, or a person acting on his behalf requests the Secretary of State, orally or in writing, to provide information relating to benefit or a form approved by him for the purpose of claiming benefit, the date of claim shall be the date of that request.
3
Where article 37(1) applies, the date of claim shall be treated as—
a
the day after the day on which the member of the forces is discharged on medical grounds; or
b
the day after the day on which the member of the forces died
whichever is applicable.
Time for making a claim – general39
1
Subject to articles 40 and 41, the time specified for making a claim for injury benefit is 5 years beginning with the day on which—
a
the injury occurs;
b
an injury which is not caused by service is made worse by service;
c
where the member or former member of the forces is suffering from an illness, he first seeks medical advice in relation to that illness; or
d
the service of the member of the forces ends
whichever is the earlier.
2
Where an illness first presents within the period specified in paragraph (1) but diagnosis of the illness is not made until less than one year before the end of that period, the time for making a claim is extended by one year starting from the date on which diagnosis was made.
3
The time specified for making a claim for death benefit where—
a
the death occurs after the day on which the service of the former member of the forces ends; and
b
within a period of 5 years starting with the day on which that service ends;
is one year from the date of the death.
Time for making a claim – exceptional circumstances40
1
Article 39 does not apply where—
a
a claim is made by a former member of the forces for a late onset illness and the illness has been diagnosed by an accredited medical specialist;
b
the death of a former member of the forces—
i
is caused by a late onset illness
ii
occurs in circumstances specified in article 9(3)(c)(ii).
2
Where paragraph (1) applies, the time specified for making a claim is one year beginning with the day the late onset illness was first diagnosed or the day on which the death occurred as the case may be.
Time for making a claim – physical or mental incapacity41
1
Where a person is physically or mentally incapable of making a claim or instructing another person to make it on his behalf throughout the time specified for making a claim in article 39 or 40, that time shall be extended by the Secretary of State for such further period as in all circumstances of the case he considers reasonable.
2
Where a person—
a
has been physically or mentally incapable of making a claim or instructing another to make it on his behalf; but
b
becomes so capable within the period referred to in F60article 39 or 40
the Secretary of State may extend the time for making a claim for a period of up to one year if he considers there is insufficient time for the person to make a claim or instruct a person to make it on his behalf within the period referred to in F61article 39 or 40.
Withdrawal or amendment of claim42
1
A person who has made a claim may amend it by notice in writing given or sent to the Veterans Agency at any time before notice of the decision on the claim has been given or sent to the claimant, and any claim so amended shall be treated by the Secretary of State as if it had been so amended in the first instance.
2
A person who has made a claim may withdraw it at any time before notice of the decision on the claim has been given or sent to the claimant, by notice in writing given or sent to the Veterans Agency, and any such notice of withdrawal shall have effect when it is received.
3
Where a person has withdrawn a claim under paragraph (2), he may not reinstate that claim but may make a further claim in accordance with the provisions of this Order.
PART VIIADJUDICATION
Decisions43
1
The Secretary of State shall determine any claim for benefit and any question arising out of the claim.
2
The Secretary of State shall give reasons for his decision.
3
The decision of the Secretary of State on any claim or any question arising out of a claim and the reasons for the decision shall be in writing and shall be sent to the claimant who shall, at the same time, be informed o F62of any right that he may have—
a
to a reconsideration of the decision under article 45; and
Interim awards44
1
Where the Secretary of State is satisfied that a person is entitled to injury benefit F65or to an additional multiple injury lump sum but it appears to him that the prognosis for the injury in that particular case is uncertain in that he is unable finally to decide which level of the tariff is applicable to it, he may make an interim award relating to the specific level of the tariff of such amount as he considers appropriate in all the circumstances of the case.
2
The Secretary of State shall specify in the interim award the period during which the award has effect and may extend, and further extend, the period during which the interim award has effect but he shall make a final award within the period of two years starting with the date on which an interim award was first made.
3
The final award shall have effect from the date on which an interim award first had effect.
F664
Where the final award is at a level of the tariff which is—
a
at the same level or is higher than the level of the tariff awarded in the interim award, account shall be taken of the amount of benefit paid in accordance with the interim award and only the difference between the amount of benefit paid in accordance with the interim award and the amount of the final award shall be paid;
b
lower than the level of the tariff awarded in the interim award, no further amount of benefit will be paid in accordance with the final award and no amount of benefit paid in accordance with the interim award is recoverable.
F675
For the purposes of paragraph (4), the amount of benefit paid in accordance with the interim award means the amount of the lump sum awarded in the interim award together with any award of additional multiple injury lump sum or any award of additional lump sum applicable to that interim award.
Reconsideration45
1
A decision of the Secretary of State (“the original decision”), other than F68a decision, under article 44(1), to make an interim award or a decision, under article 20(1), to make a temporary award,, shall be reconsidered by him if an application for a reconsideration is given or sent to the Veterans Agency within the period of 3 months starting with the date on which notice of the original decision is given or sent to the claimant.
2
On a reconsideration of an original decision, the Secretary of State may—
a
revise that decision by—
i
awarding benefit where no award of benefit was made in the original decision; or
ii
increasing or decreasing the amount awarded in the original decision; or
iii
changing the date on which awards of benefit become payable
b
confirm the original decision.
3
An application for a reconsideration shall—
a
be in writing;
b
be signed by or on behalf of the person making the application; and
c
specify the ground on which the application is made.
4
The decision of the Secretary of State on an application for a reconsideration under paragraph (1) and the reasons for that decision shall be in writing and shall be sent to the claimant who shall, at the same time, be informed of his right to appeal to F69the appropriate tribunal under section 5A(1) of the Pensions Appeal Tribunals Act 1943.
5
Where an appeal has been made to F70an appropriate tribunal against an original decision and no application for a reconsideration has been made in respect of that decision under paragraph (1), the Secretary of State shall reconsider the decision.
6
The decision of the Secretary of State on a reconsideration under paragraph (5) and the reasons for the decision shall be in writing and shall be sent to the claimant and the F71appropriate tribunal.
7
Article 41 shall have effect in respect of an application for a reconsideration under this article as though a reference to making a claim was a reference to making an application for a reconsideration and reference to the time for making a claim was a reference to the time for making an application for a reconsideration.
F728
Where the Secretary of State increases the amount of benefit awarded in the original decision only the difference between the amount of the original award and the amount of the revised award shall be paid.
9
For the purposes of paragraph (8), the original award means the amount of the lump sum awarded in the original decision together with any award of additional multiple injury lump sum or any award of additional lump sum applicable to that original decision.
Finality of decisions46
1
Where the Secretary of State has made a final decision awarding benefit, there shall be no review by him of that decision except in the circumstances specified in articles 47, 48 and 49.
2
Where the Secretary of State has made a final decision which makes no award of benefit, there shall be no review of that decision except in the circumstances specified in article 49.
3
In this article and article 48, a final decision is a decision—
a
under article 43 where either—
i
there has been no application for a reconsideration under article 45; or
ii
there has been such an application and the Secretary of State has confirmed the original decision;
b
revised by the Secretary of State following a reconsideration under article 45;
c
revised by the Secretary of State under article 47, 48 or 49;
d
making a final award under article 44.
Review on discharge on medical grounds47
1
2
Where paragraph (1) applies, the Secretary of State may revise the award of benefit where the injury in respect of which it was awarded has either—
a
become worse; or
b
caused a further injury to develop
and in both cases—
i
the worsening or the development is unexpected and exceptional, and
ii
the injury, or the injury and the further injury together, would, on the date of the review attract an amount specified in column (b) of Table 10 of the tariff which is higher than that awarded for the injury.
3
The Secretary of State's decision on a review under this article and the reasons for the decision shall be in writing and shall be given or sent to the member of the forces concerned who shall at the same time, be informed of his right—
a
to a reconsideration under article 45; and
b
to appeal to F75the appropriate tribunal under section 5A(1) of the Pensions Appeal Tribunals Act 1943.
F764
Where the Secretary of State increases the amount of benefit awarded in the original decision only the difference between the amount of the original award and the amount of the revised award shall be paid.
5
For the purposes of paragraph (4), the original award means the amount of the lump sum awarded in the original decision together with any award of additional multiple injury lump sum or any award of additional lump sum applicable to that original decision.
Review – exceptional circumstances48
1
The Secretary of State may revise an award of injury benefit F78or of an additional multiple injury lump sum if the conditions specified in paragraph (2) are satisfied and an application for a review is sent to the Veterans Agency.
2
The circumstances referred to in paragraph (1) are that, within the period of 10 years starting with the date of the final decision F79to award injury benefit, the injury in respect of which the final decision was made either has—
a
become worse; or
b
caused a further injury to develop
and in both cases—
i
the worsening or the development is unexpected and exceptional, and
ii
the injury, or the injury and the further injury together, would, on the date of the application for review, attract an amount specified in column (b) of Table 10 of the tariff which is higher than that awarded under the final decision.
3
An application for review under this article may only be made within the period of one year starting with the day on which the worsening or the development began.
4
The Secretary of State may only review an award under this article once.
5
An application for a review under this article shall—
a
be in writing;
b
F77. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
c
be signed by or on behalf of the person making the application; and
d
specify the ground on which the application is made.
6
The decision of the Secretary of State on an application for review under this article and the reasons for the decision shall be in writing and shall be given or sent to the applicant who shall, at the same time, be informed of his right—
a
to a reconsideration of the decision under article 45; and
b
to appeal to F80the appropriate tribunal under section 5A(1) of the Pensions Appeal Tribunals Act 1943.
F817
Where the Secretary of State increases the amount of benefit awarded in the original decision only the difference between the amount of the original award and the amount of the revised award shall be paid.
8
For the purposes of paragraph (7), the original award means the amount of the lump sum awarded in the original decision together with any award of additional multiple injury lump sum or any award of additional lump sum applicable to that original decision.
Review - award of damages48A
1
This article applies where—
a
the Secretary of State has made an award of benefit to a person;
b
the person has recovered damages in respect of the injury or death for which the award of benefit is payable; and
c
the Secretary of State is satisfied that benefit payable under the Order has not been taken into account in the assessment of the damages.
2
On a review under this article the Secretary of State may—
a
revise a decision—
i
given under article 43,
ii
revised under article 45, 47, 48 or 49, or
iii
relating to benefit made by the First-tier Tribunal, a Pension Appeal Tribunal, the Upper Tribunal, an appropriate Social Security Commissioner or a court,
in each case by withholding or reducing the amount of the award so as to cancel the award of benefit.
3
The decision of the Secretary of State on a review under this article and the reasons for the decision shall be in writing and shall be given or sent to the claimant who shall, at the same time, be informed of the right—
a
to a reconsideration of the decision under article 45; and
b
to appeal to the appropriate tribunal under section 5A(1) of the Pensions Appeal Tribunals Act 1943 M19.
4
In this article “damages” has the meaning given in article 32(2).
Review – ignorance or mistake49
1
Subject to paragraph (2), any decision of the Secretary of State may be reviewed by him at any time (including on the application of the claimant) if he is satisfied that the decision was given in ignorance of, or was based on, a mistake as to a material fact or of a mistake as to the law.
2
This article only applies—
a
if the material fact was knowable at the time the decision was made and was disclosed to the Secretary of State at that time;
b
if the ignorance or mistake is the ignorance or mistake of the Secretary of State;
c
where the ignorance or mistake relates to the diagnosis of an injury, where the correct diagnosis was knowable given the state of medical knowledge existing at the time the diagnosis was made.
3
On a review under this article, the Secretary of State may—
a
revise—
i
a decision given under article 43,
ii
a decision revised under article 45, 47 or 48, or
iii
a decision revised under this article
in each case by increasing or reducing the amount of the award or so as to cancel an award of benefit;
b
make an award of benefit where no award has been made before; or
c
confirm the decision referred to in subparagraph (a).
4
The decision of the Secretary of State on an application for review under this article and the reasons for the decision shall be in writing and shall be given or sent to the claimant who shall, at the same time, be informed of his right—
a
to a reconsideration of the decision under article 45; and
b
to appeal to F82the appropriate tribunal under section 5A(1) of the Pensions Appeal Tribunals Act 1943.
F835
Where the Secretary of State increases the amount of benefit awarded in the original decision only the difference between the amount of the original award and the amount of the revised award shall be paid.
6
For the purposes of paragraph (5), the original award means the amount of the lump sum awarded in the original decision together with any award of additional multiple injury lump sum or any award of additional lump sum applicable to that original decision.
Burden of proof50
The burden of proving any issue under this Order shall lie on the claimant.
Standard of proof51
The standard of proof applicable in any decision which is required to be made under this Order shall be the balance of probabilities.
Evidence52
1
For the purposes of determining any issue under this Order, the Secretary of State shall produce such medical or other records of—
a
a member of the forces;
b
a member of the forces who has died; or
c
a former member of the forces
as are in his possession and are relevant to the issues to be decided.
2
The Secretary of State shall consider any evidence which appears to him to be relevant to the issues which are to be decided and shall determine those issues on that evidence.
3
Where any decision required to be made under this Order is, or includes, a decision involving a medical issue, that decision shall be made in accordance with generally accepted medical and scientific knowledge prevailing at the time the decision is made.
Information and medical examination53
1
Where a claim has been made and—
a
the Secretary of State sends the person making the claim a request in writing for further information which is reasonably required for the determination of that claim and that information is not given or sent to the Secretary of State within 3 months of the date on which the request is sent without providing a satisfactory explanation for that failure, or
b
the person making the claim, or the person in respect of whom the claim is made, has been requested to attend a medical examination at a time and place specified in a notice given or sent to him not less than ten days before the date of the examination and he fails to attend without providing, within three months of the date on which he was requested to attend, a satisfactory explanation for that failure
the claim shall be treated as never having been made.
2
The treating of a claim as never having been made does not prevent the making of a new claim in accordance with the provisions of this Order.
F843
In this article, a reference to a claim includes a reference to an application by a claimant for reconsideration under article 45(1) and an application by a claimant for a review under article 47, 48 or 49.
PART VIIIPAYMENT
Date on which awards of benefit become payable54
1
2
An award of guaranteed income payment becomes payable—
a
where a member of the forces is discharged from the forces on medical grounds and the award is for the injury which caused him to be discharged on medical grounds, on the day after the discharge;
b
where a member of the forces is awarded injury benefit which includes an award of guaranteed income payment, on the day after the day on which his service ends;
c
in any case where subparagraph (a) or (b) does not apply, on the date of claim.
3
Where a person who is entitled to a pension for disablement or death under The Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 1983 (“the 1983 Order”) subsequently becomes entitled to benefit under this Order for the same injury or death for which there was entitlement under the 1983 Order, the date on which benefit under this Order becomes payable is the date on which—
a
a claim for benefit is determined under article 43;
b
a final award is made under article 44;
c
a decision of the Secretary of State is revised under article 45, 48 or 49;
d
a decision relating to benefit is revised by a Pensions Appeal Tribunal, an appropriate Social Security Commissioner F87, the First-tier Tribunal, the Upper Tribunal or a court as the case may be.
4
Where a member of the forces dies in service, an award of survivor's guaranteed income payment and an award of child's payment become payable on the day after his death.
5
Subject to article 14(7), an award—
a
revised under article 45 becomes payable on the date of claim;
b
revised under article 48 becomes payable on the date the application for review is sent to the Secretary of State;
6
Subject to article 14(7) where a decision of the Secretary of State is revised under article 49 so as to award benefit or increase the amount of benefit awarded, the revised award becomes payable from the beginning of a period starting 6 years before the date on which the application for review is sent to the Secretary of State or, where no application for a review has been made, 6 years before the date on which the award is revised.
7
Where an award is increased under article 15(4) F86, 15(6B) or 15A(4), the increased guaranteed income payment becomes payable from the date on which the further claim was made.
8
Where the amount of an award is reduced following a review under article 49, the reduced amount becomes payable on the date on which the award is revised.
9
Notwithstanding paragraph (6), no benefit is payable for any period before the date of claim.
Time of payment55
Guaranteed income payment, survivor's guaranteed income payment and child's payment shall be paid monthly in arrears unless, in any particular case, the Secretary of State arranges otherwise.
Suspension – F89an appropriate tribunal56
1
Where it appears to the Secretary of State that a question arises whether an appeal ought to be brought against the decision of F90an appropriate tribunal, he may, subject to paragraph (2), direct that payment of benefit in accordance with that decision be suspended, in whole or in part, pending the determination of the appeal.
2
Where it appears to the Secretary of State that a question arises under paragraph (1), he may only give directions that payment of benefit in accordance with that decision be suspended within the relevant period.
3
A suspension under paragraph (1) shall cease unless, within the relevant period, the person awarded benefit by virtue of the decision (“the beneficiary”) is given or sent notice in writing that an application for leave to appeal has been made against that decision.
4
Subject to paragraph (5), where the beneficiary has been given or sent notice within the relevant period that an application for leave to appeal against a decision of F90an appropriate tribunal has been made, the suspension may continue until that application for leave to appeal and, where leave has been granted, any subsequent appeal is determined.
5
Where an application for leave to appeal against a decision of F90an appropriate tribunal is made to F90an appropriate tribunal and that application is refused, the suspension shall cease unless the Secretary of State, within a period of 28 days beginning with the date on which notice in writing of the decision of F91the appropriate tribunal refusing leave to appeal is received by him, makes a further application for leave to appeal, and, if he has so applied, the suspension may continue until that application for leave to appeal and any subsequent appeal is determined.
6
Where, on an appeal against a decision of F92an appropriate tribunal, F93a Commissioner or the Upper Tribunal, as the case may be remits the matter for rehearing and determination by F92an appropriate tribunal, the appeal is not determined for the purposes of paragraphs (4) and (5) until the matter remitted for rehearing has been determined.
7
In this article,
a
“appeal” means an appeal under section 6A of the Pensions Appeal Tribunals Act 1943 M20
b
“application for leave to appeal” means an application for leave to appeal under section 6A(6) of that Act F94or section 11 of the Tribunals, Courts and Enforcement Act 2007; and
c
“relevant period” means the period of six weeks beginning with the date on which notice in writing of the decision in question and of the reasons for it is received by the Secretary of State.
Suspension – Social Security Commissioner F95and Upper Tribunal57
1
Where it appears to the Secretary of State that a question arises whether an appeal ought to be brought against the decision of F96a Commissioner under section 6C M21 of the Pensions Appeal Tribunals Act 1943 F97or, as the case may be, the Upper Tribunal under section 13 of the Tribunals Courts and Enforcement Act 2007 (c.15), he may, subject to paragraph (2), direct that payment of benefit in accordance with that decision be suspended, in whole or in part, pending the determination of the appeal.
2
Where it appears to the Secretary of State that a question arises under paragraph (1), he may only give directions that payment of benefit in accordance with that decision be suspended within the relevant period.
3
A suspension under paragraph (1) shall cease unless, within the relevant period, the person awarded the benefit by virtue of the decision (“the beneficiary”) is given or sent notice in writing that an application for leave to appeal has been made against that decision.
4
Where the beneficiary has been given or sent notice within the relevant period that an application for leave to appeal has been made, the suspension may continue until that application for leave to appeal and any subsequent appeal is determined.
5
Where an application for leave to appeal against a decision of F98a Commissioner is made under section 6C of the Pensions Appeal Tribunals Act 1943 F99or, as the case may be, the Upper Tribunal under section 13 of the Tribunals Courts and Enforcement Act (c.15) and that application is refused, the suspension shall cease unless the Secretary of State, within a period of 28 days beginning with the date on which notice in writing of the decision under that section refusing leave to appeal is received by him, applies to the appropriate court for leave to appeal, and, if he has so applied, the suspension may continue until that application for leave to appeal and any subsequent appeal has been determined.
6
In this article—
a
“appeal” means an appeal under section 6C of the Pensions Appeal Tribunals Act 1943 F100or, as the case may be, section 13 of the Tribunals Courts and Enforcement Act (c.15)
b
“application for leave to appeal” means an application for leave to appeal under section 6C(2) of F101the 1943 Act or an application for permission to appeal under section 13(4) of the 2007 Act; and
c
“appropriate court” means—
i
in England, Wales and Northern Ireland, the Court of Appeal or, in Scotland, the Inner House of the Court of Session,
ii
the House of Lords;
d
“relevant period” means the period of 6 weeks beginning with the date on which notice in writing of the decision in question and of the reasons for it is received by the Secretary of State;
Suspension – courts58
1
Where it appears to the Secretary of State that a question arises whether an appeal ought to be brought against the decision of a court, he may, subject to paragraph (2), direct that payment of benefit in accordance with that decision be suspended, in whole or in part, pending the determination of the appeal.
2
Where it appears to the Secretary of State that a question arises under paragraph (1), he may only give directions that payment of benefit in accordance with that decision be suspended within the relevant period.
3
A suspension under paragraph (1) shall cease unless, within the relevant period, the person awarded the benefit by virtue of the decision (“the beneficiary”) is given or sent notice in writing that an application for leave to appeal has been made against that decision.
4
Where the beneficiary has been given or sent notice within the relevant period that an application for leave to appeal has been made, the suspension may continue until that application for leave to appeal and any subsequent appeal is determined.
5
In this article—
a
“appeal” means—
i
in England, Wales and Northern Ireland an appeal to the Court of Appeal or, in Scotland, a reclaiming motion to the Inner House of the Court of Session, against the determination of an application for judicial review;
ii
in England, Wales and Northern Ireland an appeal to the House of Lords against a decision of the Court of Appeal in an application referred to in head (i) above, or in Scotland, an appeal to the House of Lords against a decision of the Inner House of the Court of Session in a reclaiming motion in an application referred to in head (i) above;
b
“application for leave to appeal” means an application or petition for leave to appeal as the case may be in the proceedings referred to in heads (i) and (ii) of subparagraph (a) above;
c
“relevant period” means the period of three months beginning with the date on which notice in writing of the decision in question and of the reasons for it is received by the Secretary of State.
Suspension in other cases59
1
Where it appears to the Secretary of State that—
a
an appeal has been brought or a question arises whether an appeal ought to be brought against a decision of a court in relation to a case (“the primary case”); and
b
if such an appeal were to be allowed a question would arise in relation to another case (“the secondary case”) whether the award of benefit in that case ought to be reviewed,
he may direct that payment of the benefit under the award in the secondary case be suspended, in whole or in part—
i
until the time limit for making an application for leave to appeal in the primary case has expired, or;
ii
if such an application is made, until such time as that application and any subsequent appeal has been determined, whichever is the later.
2
In this article the expressions “appeal” and “application for leave to appeal” have the same meanings as they have in article 56.
Payments on death60
1
On the death of a person who has made a claim for benefit, the Secretary of State may appoint such person as he thinks fit to proceed with the claim.
2
Any sum which is payable under an award on a claim proceeded with under paragraph (1) shall be paid to the personal representatives of the deceased or to such other persons as the Secretary of State considers fit.
3
An award on a claim proceeded with under paragraph (1) shall not provide for payment of benefit for any period after the date of death.
PART IXTHIRD PARTIES
Persons under 1861
1
Where a child is less than the age of 18, a claim for child's payment shall be made by the child's parent or by a person having legal responsibility for the child and such a person may exercise on behalf of the child the powers specified in articles 42, 45 and 49 and has the duty imposed by article 53(1)(a).
2
Where the Secretary of State is satisfied that a claim for child's payment made by a person referred to in paragraph (1) cannot be determined because the person making the claim has not provided information requested under article 53(1)(a), the Secretary of State shall appoint a person to pursue the claim on the child's behalf.
3
Where the Secretary of State has made an appointment under paragraph (2)
a
he may at any time revoke it and make another appointment under paragraph (2); and
b
the person appointed may resign his office after having given one month's notice in writing to the Secretary of State of his intention to do so.
4
Child's payment awarded in respect of an eligible child aged less than 18 shall be paid to the child's parent or the person having legal responsibility for the child or, if the Secretary of State considers that it is in the interests of the child that a person other than the parent or person having legal responsibility for the child should be paid the child's payment, to a person (who, if a natural person, is over the age of 18) appointed by the Secretary of State in writing and the person receiving the child's payment shall apply the payment for the benefit of the child.
5
Where the Secretary of State has made an appointment under paragraph (4)
a
he may at any time revoke it and either—
i
make another appointment under paragraph (4); or
ii
pay the child's payment to the parent or the person having legal responsibility for the child; and
b
the person appointed may resign his office after having given one month's notice in writing to the Secretary of State of his intention to do so.
6
The Secretary of State may, before appointing a person under paragraph (4), require that person to give such undertaking as the Secretary of State considers necessary as to the use of the child's payment.
Persons who are mentally infirm62
1
Where—
a
a person is, or is alleged to be, entitled to benefit, whether or not a claim for benefit has been made by him or on his behalf; and
b
that person is, in the opinion of the Secretary of State incapable of managing his own affairs by reason of mental infirmity; and
c
no person has legal authority to act on his behalf
the Secretary of State may in writing appoint a person (who, if a natural person, is over the age of 18) to act for that person in respect of this Order.
2
A person appointed under paragraph (1) shall—
a
exercise, on behalf of the mentally infirm person, any right to which that person may be entitled under this Order and fulfill on his behalf any duty imposed on that person by this Order;
b
receive and deal with any sums payable to him; and
c
apply those sums for the benefit of the mentally infirm person.
3
Where the Secretary of State has made an appointment under paragraph (1)—
a
he may at any time revoke it and make another appointment under paragraph (1); and
b
the person appointed may resign his office after having given one month's notice in writing to the Secretary of State of his intention to do so.
4
The Secretary of State may, before appointing a person under paragraph (1), require that person to give such undertaking as the Secretary of State considers necessary as to the use of the sums paid to him.
PART XUP-RATING
Annual up-rating of guaranteed income payment, survivor's guaranteed income payment and child's payment63
In every tax year the sums which are payable to a person by way of guaranteed income payment, survivor's guaranteed income payment or child's payment shall be increased by the same amount as that by which an annual pension of an amount equal to the guaranteed income payment, survivor's guaranteed income payment or child's payment would have been increased under the Pensions (Increase) Act 1971 M23 if it were an annual pension eligible to be increased under that Act.
Up-rating of relevant salary for the purposes of articles 16, 26 and 2864
1
Where, in the definition of “relevant salary” in articles 16, 26 and 28, the salary of a former member of the forces on the day his service ends or the day on which he died as the case may be (“the departure day”), is required to be up-rated for inflation, the Secretary of State shall review that salary in order to determine whether it would have retained its value in relation to the general level of prices obtaining in the United Kingdom, estimated in such manner as the Secretary of State thinks fit, had it been paid on the date on which guaranteed income payment, survivor's guaranteed income payment or child's payment as the case may be is to be paid for the first time (“the payment date”).
2
Where it appears to the Secretary of State that the general level of prices is greater on the payment day than it was on the departure day, the relevant salary for the purposes of articles 16, 26 and 28 shall be the amount of the former member of the forces' salary on the departure day increased by the percentage by which the general level of prices is greater on the payment day than it was on the departure day.
3
The Secretary of State may, in providing for an increase in pursuance of paragraph (2), adjust the increased amount so as to round it up or down to the nearest pound as the case may be.
PART XITRANSITORY PROVISION
Transitory provision: Coming into force of the Civil Partnership Act 200465
Until such time as Section 1 of the Civil Partnerships Act 2004 M24 comes into force, this Order has effect with the omission of references to civil partners and civil partnerships.
Signed by authority of the Secretary of State for Defence
Arts. 15A, 15B inserted (8.2.2008) by The Armed Forces and Reserve Forces (Compensation Scheme) (Amendment) Order 2008 (S.I. 2008/39), arts. 1(1), 8