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STATUTORY INSTRUMENTS


2005 No. 439

PENSIONS

The Armed Forces and Reserve Forces (Compensation Scheme) Order 2005

  Made 8th March 2005 
  Laid before Parliament 14th March 2005 
  Coming into operation 6th April 2005 


ARRANGEMENT OF REGULATIONS


PART I

GENERAL
1. Citation and commencement
2. Interpretation
3. Definition of "late onset illness"
4. Definition of "salary"
5. Service of documents

PART II

THE COMPENSATION SCHEME
6. The Compensation Scheme
7. Injury caused by service
8. Injury made worse by service
9. Death caused by service
10. Injury and death - inclusions
11. Injury and death - exclusions
12. Modifications of provisions for members or former members of the reserve forces and Gurkhas

PART III

BENEFITS PAYABLE FOR INJURY
13. Interpretation of Part III
14. Description of benefits - injury
15. Amount of lump sum
16. Amount of guaranteed income payment
17. More than one injury - general
18. Injury to a pair of like parts of the body
19. More than one injury to the same part of the body
20. Temporary Awards

PART IV

BENEFITS PAYABLE FOR DEATH
21. Description of benefits - death
22. Meaning of "surviving adult dependant"
23. Meaning of "eligible child"
24. Eligible child - further provisions
25. Children born after the death of a member or former member of the forces
26. Amount of survivor's guaranteed income payment
27. Amount of bereavement grant
28. Amount of child's payment
29. Awards of child's payment: later adjustment
30. Children entitled to three or more awards of child's payment

PART V

REDUCTION OF BENEFIT
31. Reduction of guaranteed income payment, survivor's guaranteed income payment and child's payment to take account of other amounts.
32. Reduction in benefit to take account of awards of damages
33. Abatement of awards in respect of Social Security benefits
34. Negligence or misconduct

PART VI

CLAIMS
35. Entitlement to benefit dependant on claim
36. Manner of making a claim
37. Cases where claims are not required
38. Date of claim
39. Time for making a claim - general
40. Time for making a claim - exceptional circumstances
41. Time for making a claim - physical or mental incapacity
42. Withdrawal or amendment of claim

PART VII

ADJUDICATION
43. Decisions
44. Interim awards
45. Reconsideration
46. Finality of decisions
47. Review on discharge on medical grounds
48. Review - exceptional circumstances
49. Review - ignorance or mistake
50. Burden of proof
51. Standard of proof
52. Evidence
53. Information and medical examination

PART VIII

PAYMENT
54. Date on which awards of benefit become payable
55. Time of payment
56. Suspension - Pensions Appeal Tribunal
57. Suspension - Social Security Commissioner
58. Suspension - courts
59. Suspension in other cases
60. Payments on death

PART IX

THIRD PARTIES
61. Persons under 18
62. Persons who are mentally infirm

PART X

UP-RATING
63. Annual up-rating of guaranteed income payment, survivor's guaranteed income payment and child's payment
64. Up-rating of relevant salary for the purposes of articles 16, 26 and 28

PART XI

TRANSITORY PROVISION
65. Transitory provision: Coming into force of the Civil Partnership Act 2004

  SCHEDULE 1 Article 2(1) MEANING OF "SUBSTANTIAL AND EXCLUSIVE RELATIONSHIP"
 PART I SUBSTANTIAL RELATIONSHIP
 PART II EXCLUSIVE RELATIONSHIP

  SCHEDULE 2 Article 12(1) MODIFICATIONS FOR RESERVE FORCES

  SCHEDULE 3 Article 12(2) MODIFICATIONS FOR GURKHAS

  SCHEDULE 4 Article 14 THE TARIFF

  SCHEDULE 5 Article 16(2) TABLE OF FACTORS

The Secretary of State, in exercise of his powers under sections 1(2) and 10(2) and (3) of the Armed Forces (Pensions and Compensation) Act 2004[
1] hereby makes the following Order:



PART I

GENERAL

Citation and commencement
     1. 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.

Interpretation
    
2.  - (1) In this Order  - 

or any instrument amending or replacing any of those instruments;

or any later provisions corresponding to the provisions referred to in sub-paragraphs (a), (b) or (c);

    (2) In this Order, any reference to claiming a benefit or to a claim

    (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 - 

Definition of "late onset illness"
     3. A "late onset illness" is - 

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 - 

    (2) Subject to paragraph (1)(b), "salary" does not include - 

    (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 documents
    
5. Where by any provision of this Order - 



PART II

THE COMPENSATION SCHEME

The Compensation Scheme
    
6.  - (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 service
    
7.  - (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 service
    
8.  - (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 - 

and in each case the injury was made worse by service on or after 6th April 2005.

    (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 - 

    (3) Subject to paragraph (4), in the case of paragraph (1)(a) and (b), benefit is only payable if - 

    (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 - 

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 - 

Death caused by service
    
9.  - (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 - 

    (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 - 

Injury and death - inclusions
    
10.  - (1) Benefit is payable in accordance with this Order to or in respect of a person by reason of an injury sustained or death occurring, while participating in - 

in each case where service is the predominant cause of the injury or 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.

    (4) Benefit is payable in accordance with this Order to or in respect of a person by reason of an injury sustained or a death occurring while travelling from - 

    (5) The circumstances referred to in paragraph (4)(b) are where the member of the forces - 

    (6) Benefit is payable in accordance with this Order to or in respect of a person by reason of an injury sustained or a death occurring - 

but only where service is the predominant cause of the injury or death.

    (7) This article does not apply unless the cause 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 - exclusions
    
11. No benefit is payable under this Order to or in respect of a person by reason of - 

Modifications of provisions for members or former members of the reserve forces and Gurkhas
    
12.  - (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.



PART III

BENEFITS PAYABLE FOR INJURY

Interpretation of Part III
    
13. In Part III - 

Description of benefits - injury
     14.  - (1) Benefits payable for injury are - 

    (2) The tariff shall have effect for the purpose of determining the amount of lump sum and the guaranteed income payment as follows - 

    (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 amount 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.

Amount of lump sum
    
15.  - (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.

    (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 - 

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 - 

    (5) In determining the further claim under paragraph (4) the Secretary of State may

    (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 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.

Amount of guaranteed income payment
    
16.  - (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 - 

    (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 - 

    (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 - general
    
17.  - (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 body
    
18.  - (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 - 

    (2) Where paragraph (1) applies - 

    (3) In this article - 

    (4) The pairs of like parts of the body to which this article applies are - 

More than one injury to the same part of the body
    
19.  - (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 - 

    (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 - 

    (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 - 

    (7) In this article - 

Temporary Awards
    
20.  - (1) Where the Secretary of State considers that - 

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 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.

    (4) If the Secretary of State - 



PART IV

BENEFITS PAYABLE FOR DEATH

Description of benefits - death
     21.  - (1) Benefits payable for the death of a member of the forces or a former member of the forces are - 

    (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 - 

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 - 

    (2) The conditions referred to in paragraph (1) are that the person is - 

Eligible child - further provisions
    
24.  - (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 - 

    (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 - 

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 - 

    (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 - 

    (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 forces
    
25.  - (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 payment
    
26.  - (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 - 

    (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 grant
    
27.  - (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 - 

    (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 £20,000, 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 payment
    
28.  - (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 - 

    (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 - 

    (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 - 

    (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 adjustment
    
29.  - (1) This article applies where, after the death of a member or former member of the forces - 

    (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 payment
    
30.  - (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 V

REDUCTION 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 - 

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 - 

    (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 damages
     32.  - (1) Where the Secretary of State is satisfied that - 

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 - 

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 - 

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 benefits
     33. 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[17] or the Jobseekers Act 1995[18], 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 misconduct
     34. 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 VI

CLAIMS

Entitlement to benefit dependant on claim
    
35.  - (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[
19], the Secretary of State shall treat that claim as also being a claim for benefit under this Order.

Manner of making a claim
     36. A claim for benefit shall be - 

Cases where claims are not required
    
37.  - (1) It is not a condition of entitlement to benefit that a claim be made for it where - 

    (2) Notwithstanding paragraph (1), where a member of the forces dies in the circumstances specified in that paragraph leaving an eligible child and either - 

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 claim
    
38.  - (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 - 

whichever is applicable.

Time for making a claim - general
    
39.  - (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 - 

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 - 

is one year from the date of the death.

Time for making a claim - exceptional circumstances
    
40.  - (1) Article 39 does not apply where - 

    (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 incapacity
    
41.  - (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 - 

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 article 39(1) or paragraph (1).

Withdrawal or amendment of claim
    
42.  - (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 VII

ADJUDICATION

Decisions
    
43.  - (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 of his right - 

Interim awards
    
44.  - (1) Where the Secretary of State is satisfied that a person is entitled to injury benefit 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.

    (4) Where a final award is - 

Reconsideration
    
45.  - (1) A decision of the Secretary of State ("the original decision"), other than a decision under article 44(1), 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 - 

    (3) An application for a reconsideration shall - 

    (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 a Pension Appeal Tribunal under section 5A(1) of the Pensions Appeal Tribunals Act 1943.

    (5) Where an appeal has been made to a Pensions Appeal 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 Pensions Appeal 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.

Finality of decisions
    
46.  - (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 - 

Review on discharge on medical grounds
     47.  - (1) This article applies where a member of the forces has been awarded injury benefit and is later discharged on medical grounds for the same injury for which that benefit was awarded.

    (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 - 

and in both cases - 

    (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 - 

Review - exceptional circumstances
     48.  - (1) The Secretary of State may revise an award of injury benefit 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, the injury in respect of which the final decision was made either has - 

and in both cases - 

    (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 - 

    (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 - 

Review - ignorance or mistake
     49.  - (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 - 

    (3) On a review under this article, the Secretary of State may - 

    (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 - 

Burden of proof
     50. The burden of proving any issue under this Order shall lie on the claimant.

Standard of proof
    
51. The standard of proof applicable in any decision which is required to be made under this Order shall be the balance of probabilities.

Evidence
    
52.  - (1) For the purposes of determining any issue under this Order, the Secretary of State shall produce such medical or other records of - 

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 examination
    
53.  - (1) Where a claim has been made and - 

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.

    (3) In this article, a reference to a claim includes a reference to a reconsideration under article 45 and a
review under article 47, 48 or 49.



PART VIII

PAYMENT

Date on which awards of benefit become payable
     54.  - (1) A lump sum and a bereavement grant shall be paid in accordance with an award as soon as is reasonably practicable after the award has been made.

    (2) An award of guaranteed income payment becomes payable - 

    (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 - 

    (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 - 

    (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), 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 payment
     55. 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 - Pensions Appeal Tribunal
    
56.  - (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 Pensions Appeal 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 a Pensions Appeal 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 a Pensions Appeal Tribunal is made to a Pensions Appeal 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 the Pensions Appeal 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 a Pensions Appeal Tribunal, an appropriate Commissioner remits the matter for rehearing and determination by a Pensions Appeal 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,

Suspension - Social Security Commissioner
     57.  - (1) Where it appears to the Secretary of State that a question arises whether an appeal ought to be brought against the decision of an appropriate Commissioner under section 6C[21] of the Pensions Appeal Tribunals Act 1943, 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 an appropriate Commissioner is made under section 6C of the Pensions Appeal Tribunals Act 1943 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 - 

Suspension - courts
     58.  - (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 - 

Suspension in other cases
     59.  - (1) Where it appears to the Secretary of State that - 

he may direct that payment of the benefit under the award in the secondary case be suspended, in whole or in part - 

    (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 death
    
60.  - (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 IX

THIRD PARTIES

Persons under 18
    
61.  - (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)

    (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)

    (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 infirm
    
62.  - (1) Where - 

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 - 

    (3) Where the Secretary of State has made an appointment under paragraph (1) - 

    (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 X

UP-RATING

Annual up-rating of guaranteed income payment, survivor's guaranteed income payment and child's payment
    
63. 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[23] 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 28
     64.  - (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 XI

TRANSITORY PROVISION

Transitory provision: Coming into force of the Civil Partnership Act 2004
     65. Until such time as Section 1 of the Civil Partnerships Act 2004[24] 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


Ivor Caplin
Parliamentary Under Secretary of State Ministry of Defence

8th March 2005



SCHEDULE 1
Article 2(1)


MEANING OF "SUBSTANTIAL AND EXCLUSIVE RELATIONSHIP"




PART I

SUBSTANTIAL RELATIONSHIP

In deciding whether a relationship of a deceased member of the forces ("the deceased") and the claimant is a substantial relationship, the Secretary of State shall have regard to any evidence which the claimant considers demonstrates that the relationship is substantial and shall in particular have regard to the following examples of evidence which could, either alone or together, indicate that the relationship is substantial.

     1. Evidence of regular financial support by the deceased.

     2. Evidence of a valid will or life insurance policy, valid at the time of the deceased's death, in which - 

    (1) the deceased nominates the claimant as principal beneficiary or co-beneficiary with children; or

    (2) the claimant nominates the deceased as the principal beneficiary.

     3. Evidence indicating that the deceased and the claimant were purchasing accommodation as joint owners or evidence of joint ownership of other valuable property, such as a car or land.

     4. Evidence of a joint savings plan or joint investments of a substantial nature.

     5. Evidence that the deceased and the claimant operated a joint account for which they were co-signatories.

     6. Evidence of joint financial arrangements such as joint repayment of a loan or payment of each other's debts.

     7. Evidence that the deceased or the claimant had given the other a power of attorney.

     8. If the deceased and the claimant lived in rented accommodation, evidence that both their names appeared on the lease or rental agreement.

     9. Evidence that the deceased and the claimant shared responsibility for children.

     10. The length of the relationship.



PART II

EXCLUSIVE RELATIONSHIP

A relationship is not an exclusive relationship if - 



SCHEDULE 2
Article 12(1)


MODIFICATIONS FOR RESERVE FORCES


     1. The following definitions are inserted in article 2(1) in the appropriate alphabetical order - 

     2.  - (1) For paragraph (1) of article 4 there is substituted the following paragraph - 

    (2) In paragraph (2) of article 4 for "(1)(b)" there is substituted "(1)(d)".

     3. For article 31 there is substituted the following article - 



SCHEDULE 3
Article 12(2)


MODIFICATIONS FOR GURKHAS


     1. The definition of "salary" in article 4 is modified as follows - 

    (1) in paragraph (1) for "member or former member of the forces" there is substituted "Gurkha", and

    (2) for sub-paragraph (a) of paragraph (1) there is substituted - 

     2. Where a Gurkha is discharged into Nepal, the definition of "relevant factor" in articles 16(5), 26(3) and 28(6) has effect as if the reference to the table set out in Schedule 5 was a reference to the table set out at the end of this Schedule.

     3. Where - 

is resident in Nepal, the definition of "relevant factor" in articles 26(3) and 28(6) has effect as if the reference to the table set out in Schedule 5 was a reference to the table set out at the end of this Schedule.

     4. For article 31 there is substituted - 




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