Buch, Englisch, 470 Seiten, Format (B × H): 152 mm x 229 mm, Gewicht: 754 g
Buch, Englisch, 470 Seiten, Format (B × H): 152 mm x 229 mm, Gewicht: 754 g
ISBN: 978-0-85490-316-0
Verlag: Wildy, Simmonds and Hill Publishing
Since the first edition was published in 2016, War Pensions and Armed Forces Compensation: Law and Practice has established itself as the definitive guide to one of the most specialised areas of UK law, providing a thorough explanation of the provisions of the Service Pensions Order 2006 and of the Armed Forces Compensation Scheme 2011 as interpreted by the nominated judges and by the judges of the Upper Tribunal and the appellate courts. 'The book also deals with the practice and procedure for making a claim and for bringing an appeal before the First-tier Tribunal (in England and Wales) or Pensions Appeal Tribunals (in Scotland and Northern Ireland), together with guidance on appeals to the Upper Tribunal.
This third edition includes coverage of almost thirty new Upper Tribunal decisions and the recent case of Pearson v Secretary of State for Defence [2024] EWCA Civ 150. It also deals with important procedural developments since the publication of the last edition; including relaxation of the requirements for establishing mental disorders in the armed forces compensation scheme, direct lodgement of appeals in England and Wales, legislative changes relating to late appeals, new Presidential guidance on making applications to the First-tier Tribunal, and on the giving of evidence from witnesses abroad and guidance from the Senior President of Tribunals on reasons for decisions.
An essential reference for judges, tribunal members, legal practitioners, service charities, and advice agencies, this book will also be of interest to all those interested in the development of our oldest system of welfare benefits, and in how the special position of the armed forces is reflected in the injury compensation schemes
Zielgruppe
Judiciary, legal practitioners, advice agencies, and service charities
Autoren/Hrsg.
Weitere Infos & Material
Preface to the Third Edition
Preface to the First Edition
Table of Court and Nominated Judges’ Decisions
Table of Commissioners’ and Upper Tribunal Decisions
Table of Statutes
Table of Statutory Instruments
Table of Practice Statements
Table of Conventions
Citation of Cases
PART I - WAR PENSIONS
1 WAR PENSIONS – A HISTORICAL INTRODUCTION
2 CLAIMING A WAR PENSION
The scope of the War Pensions Scheme
Making a Service Pensions Order claim
When a claim is not required
What a claim covers
Date of claim
Receipt of claim or enquiry about claiming benefit
Date of claim for additional benefits
‘Deemed’ claim on medical discharge
Scope of ‘deemed’ claim
Withdrawal of claims
Power to treat claims as withdrawn
Withdrawal by claimant
3 ENTITLEMENT TO WAR PENSION – GENERAL PRINCIPLES
Disablement or death ‘due to service’
Initial burden on the claimant – the Royston principle
‘Disablement’ and ‘injury’
Diagnostic labelling
‘Attributable to service’
Meaning of ‘attributable to service’
Service cause
Injury due to more than one cause
Self-harm
Bullying
Medical treatment
Injury aggravated by service
Difference between injury ‘attributable to’ and injury ‘aggravated by’ service
Injury aggravated by service – duration of award
Death due to or hastened by service
No note in official records
Overlapping award under the Armed Forces Compensation Scheme
4 CLAIMS FOR DISABLEMENT OR DEATH WITHIN 7 YEARS OF TERMINATION OF SERVICE – ARTICLE 40 OF THE SPO 2006
Article 40 burden and standard of proof
Injury not noted on entry medical
Article 40 onus of proof
Diseases of unknown aetiology
Claims by members of the Reserve or Auxiliary Forces
5 CLAIMS FOR DISABLEMENT OR DEATH MORE THAN 7 YEARS AFTER TERMINATION OF SERVICE – ARTICLE 41 OF THE SPO 2006
Article 41 burden and standard of proof
‘Reliable evidence’
Difference in medical opinion
Article 41 – the overall approach
6 REVIEW OF WAR PENSIONS DECISIONS AND AWARDS
Review in the War Pensions Scheme
Review of decisions and assessments
Review of awards
Meaning of ‘award’
Grounds for reviewing awards
Ignorance of a material fact or mistake of fact or law
Relevant change of circumstances
Revision of underlying decision or assessment
Review of decisions or assessments by tribunals
Review powers
Review – the general approach
Instigating a review
Treating a claim as a review application
Carrying out a review
Restrictions on detrimental revisions
7 COMMENCING DATES OF AWARDS
Normal commencement date of awards
Award of pension following claim or review
Award of pension without claim
Backdating – previous discretionary powers
Official error
Contribution to error by another person
Duty to consider backdating
Exercise of the review power
‘Officer of the Secretary of State’
Award following development of medical opinion
Claim or review application delayed by illness or disability
Delay caused by act or omission of the Secretary of State
Failure to provide information about the War Pensions Scheme
Other cases
8. THE BASIC AWARD AND THE ASSESSMENT OF DISABLEMENT
The basic award
Amount of the basic award
Assessing disablement
Prescribed assessments
Assessing disablement – general principles
Interacting or overlapping disablements
Disablement due to injury aggravated by service
Hearing loss
Awards for sensorineural hearing loss and related conditions – minimum degree of disablement
Measurement of hearing loss
Assessment of disablement in respect of noise-induced sensorineural hearing loss
Hearing loss – age-related and other non-service-related factors
Mental illness
Alcohol and tobacco
Interim and final assessments
9. OTHER AWARDS IN RESPECT OF DISABLEMENT
Constant attendance allowance and associated benefits
Constant attendance allowance
Entitlement and rates of allowance
Satisfying the attendance requirements
Exceptionally severe disablement allowance
Severe disablement occupational allowance
Constant attendance allowance under earlier schemes
Clothing allowance
Unemployability allowances
Additional unemployability allowances for dependants
Dependants other than children
Child dependants
Discretion to take into account state pension benefits and equivalent non-UK benefits
Invalidity allowance
Comforts allowance
Allowance for lowered standard of occupation
Entitlement and rates of allowance
‘Regular occupation’
Restrictions on entitlement
Age allowance
Medical treatment
Mobility supplement
Conditions of entitlement
Impaired mobility
Other grounds of entitlement
Loss of payment if vehicle provided by the National Health Service
Diffuse mesothelioma lump sums
Entitlement to diffuse mesothelioma lump sum
Election to receive diffuse mesothelioma lump sum
Period for electing to receive diffuse mesothelioma lump sum
Amount of diffuse mesothelioma lump sum
Effect of diffuse mesothelioma lump sum
Repayment of diffuse mesothelioma lump sum
10. AWARDS IN RESPECT OF DEATH
Entitlement to death benefits
Conditions of entitlement
Surviving spouses and civil partners
Rates of pension
Basic pension
Supplementary pension
Pensions to dependants who lived as spouses and dependants who lived as civil partners
Entitlement
Rent allowance
Entitlement
Elderly persons allowance
Entitlement
Temporary allowances
Entitlement
Duration of allowances
Temporary allowances in respect of children
Aggregation and power to vary payments
Children’s allowances
Entitlement
Orphans
Children aged 16 or over
Ineligible children of members in receipt of unemployability allowances
Relationships subsequent to the award of a pension
Forfeiture of pensions
Restoration of benefits
Abolition of forfeiture provisions
Funeral expenses
11. REDUCTION AND CANCELLATION OF AWARDS
Abatement
Abatement in respect of third party compensation
Ministry of Defence policy
Abatement in respect of benefits under other schemes
Pension abated by gratuity
Maintenance in hospital or other institution
Chelsea Pensioners
Social security benefits
Forfeiture
Refusal of treatment
Serious negligence or misconduct
Failure to draw pension
Suspension of benefits pending appeals
Failure to comply with request or pensioner not at last known address
Restoration of suspended benefits
Cancellation of suspended benefits
PART II - ARMED FORCES COMPENSATION
12 THE ARMED FORCES COMPENSATION SCHEME
13 CLAIMING ARMED FORCES COMPENSATION
Who can claim
‘Spanning’ cases
Making a claim under the Armed Forces Compensation Scheme
Claim a condition of entitlement
When a claim is not required
Discharge on medical grounds
Death in service
Additional benefit
Time limit for bringing a claim
Claims for fast payments and medical expenses
Late onset illness
Claimant physically or mentally incapable of making claim
Withdrawal or amendment of claims
Failure to provide information or to attend medical examination
14, ENTITLEMENT TO ARMED FORCES COMPENSATION –GENERAL PRINCIPLES
Causation in the Armed Forces Compensation Scheme
Injury ‘caused by service’ and ‘predominant cause’
‘Service cause’
Pre-existing medical conditions
Predisposition
Contributing injury
Injury made worse by service
Qualifying injury
Downgrading
PULHHEEMS
‘Continually downgraded until service ends’
‘Worsening was the predominant cause of the downgrading’
Death caused by service
15 EXCLUSIONS FROM ENTITLEMENT
Scope of exclusions from entitlement to benefit
Travel between home and work
‘By travel’
Home
Place of work
Exceptions to travel exclusion
Change of place of work
Travel to and from approved sporting activities
Acts of terrorism and travelling to or from emergencies
Slipping, tripping and falling
Exceptions to slipping, tripping and falling exclusion
Hazardous activities and training
Hazardous environment
Training
Acts of terrorism and emergencies
Disqualification relating to sport
Sporting activity
Approved sporting activity
Social events
Other exclusions
Service Pensions Order award
Excluded conditions
16 ADJUDICATION
Burden and standard of proof
Burden of proof
Missing official records
Recognised diseases
The ‘Ophelia’ principle
Standard of proof
Evidence
Medical issues
Decisions
Lay decision making
Form of decision
Reconsideration
Exceptions
Applying for a reconsideration
Powers on reconsideration
Form of reconsideration decision
Further reconsideration applications
17 REVIEW OF ARMED FORCES COMPENSATION SCHEME DECISIONS
Review under the Armed Forces Compensation Scheme 2011
Finality of decisions
Service termination
Eligibility
Applying for a service termination review
Form of decision
Exceptional circumstances within 10 years
Applying for an exceptional circumstances review
Form of decision
Review of decisions after 10 years
Awards of damages
Ignorance or mistake
Review powers
Form of decision
18 INJURY BENEFITS – THE TARIFF
The structure of the tariff
The overall approach to the tariff
Interpreting the tariff
Principles of statutory construction
The scope of the descriptors
Medical treatment
Functional limitation or restriction
Duration of effects
‘Permanent’
‘Persistent’
‘Operative treatment’
Mental disorders
19 INJURY BENEFITS
Types of injury benefit
Lump sum
Supplementary award
Calculating lump sum benefit
Single descriptor
Multiple descriptors – 100% Guaranteed Income Payment
Body zones
Multiple descriptors – other cases
Guaranteed Income Payment
Amount of Guaranteed Income Payment
‘Relevant salary’
‘Relevant factor’
‘Relevant percentage’
More than one descriptor from same incident
Additional injury from same incident
Injury to paired body structures
Temporary awards
Interim awards
Fast payment
Armed Forces Independence Payment
Eligibility for Armed Forces Independence Payment
Claiming Armed Forces Independence Payment
Medical expenses
20 DEATH BENEFITS
Types of death benefit
Survivor’s Guaranteed Income Payment
Eligibility
Surviving adult dependant
‘Substantial and exclusive relationship’
Amount of survivor’s Guaranteed Income Payment
Bereavement grant
Eligibility
Eligible child
Amount of bereavement grant
Child’s payments
Amount of child’s payment
Recalculation of child’s payment
Adjustment of child’s payment
Three or more awards of child’s payment
21 ADJUSTMENT AND CESSATION OF BENEFIT
Other pension benefits
Abatement for awards of damages
Exclusions
Duty to notify claim
Negligence or misconduct
Chelsea Pensioners
Suspension of benefit pending appeals by the Secretary of State
Appeal against tribunal decision
Further appeals
‘Look-alike’ appeals
22 MODIFICATIONS FOR RESERVE FORCES
PART III - ADMINISTRATION AND ADJUDICATION
23 ADMINISTRATION OF BENEFITS
Decision making
Central Advisory Committee on Compensation
Veterans Advisory Pensions Committees
Independent Medical Expert Group
24 APPEAL TRIBUNALS
The development of the tribunal system
25 RIGHTS OF APPEAL
The Pensions Appeal Tribunals Act 1943
Entitlement appeals
Injury claims
‘On that ground’
Claims in respect of death
Relevant service
Appeals against entitlement review decisions
Assessment appeals
Interim assessments
Final assessments
Appeals against assessment decisions following a review
Specified decisions
Armed Forces Compensation Scheme decisions
Appeals in respect of temporary awards
Revision and lapse of appeals
26 BRINGING AN APPEAL
Procedure
Form of notice of appeal
Time limits for appeals
Appeals after the absolute time limit
Posthumous appeals
Withdrawal of appeals
Statement of case
27 CASE MANAGEMENT
Case management powers
Applying for directions
Non-compliance with directions
Striking out
Obtaining and using documents and other information
Commissioning of medical or other expert evidence
28 THE HEARING
Composition of the tribunal
England and Wales
Scotland and Northern Ireland
Notice of hearing
Adjourning or postponing a hearing
‘In absence’ hearings
Attendance and representation
Public and private hearings
Evidence
Evidence by video or telephone from persons located abroad
Medical examinations
Procedure at the hearing
Record of proceedings
Use of specialist knowledge and tribunal’s observations
Expenses and allowances
29 POWERS OF THE TRIBUNAL ON AN APPEAL
The role of the tribunal
Limitations on the tribunal’s powers
Issues raised by the ‘appellant or the Minister’
‘Down to the date of decision’
Previous tribunal decisions
Disadvantageous decisions
30 THE DECISION
England and Wales
Reasons
Adequacy of reasons
Scotland and Northern Ireland
Majority decisions
Consent orders
31 CORRECTING, SETTING ASIDE AND REVIEWING DECISIONS
Correcting accidental errors
Setting aside
Review
32 APPEALS TO THE UPPER TRIBUNAL
Right of appeal to the Upper Tribunal
Point of law
Applying to the First-tier or Pensions Appeal Tribunal for permission to appeal
England and Wales
Consideration of the application
Application for permission to appeal in Scotland and in assessment appeals in Northern Ireland
Applying to the Upper Tribunal for permission to appeal
Appealing to the Upper Tribunal
Proceedings before the Upper Tribunal
Oral hearings
Powers of the Upper Tribunal
Decisions
Correcting, setting aside and review of decisions
Onward appeals
33 APPEALS TO THE NORTHERN IRELAND PENSIONS APPEAL COMMISSIONERS
Renewing an application for leave to appeal
Appeals to the Pensions Appeal Commissioners
Procedure
Written observations
Directions
Harmful evidence
Withdrawal
Hearings
Summoning witnesses
Powers of the Pensions Appeal Commissioners
Decisions
Correction and setting aside of decisions
Onward appeals
APPENDICES
1 Schedule 1 to the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006 (SI 2006/606) (as amended)
2 Schedule 2 to the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006 (SI 2006/606) (as amended)
3 Schedule 3 to the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 (SI 2011/517) (as amended)
Index
