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

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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 —

• “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 —Orders in Council made under section 3 of the Naval and Marine Pay and Pensions Act 1865 ,the Army Pensions Warrant 1977 andOrders and regulations made under section 2 of the Air Force (Constitution) Act 1917 or any instrument amending or replacing any of those instruments;

• “the AFPS 2005” means the Scheme established in the Armed Forces Pension Scheme Order 2005 ;

• “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;

• “additional lump sum” means the sum referred to in article 15C;

• “additional multiple injury lump sum” means the sum referred to in article 15B(2);

• “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;

• “the FTRSPS 2010” means the occupational pension scheme for members of the Full-Time Reserve Service established by regulations made by the Defence Council in exercise of the powers conferred on them by sections 4(2) and (3) and 8(2) and (3) of the Reserve Forces Act 1996 ;

• “Gurkha” means a member of the Brigade of Gurkhas . . . ;

• “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 or the equivalent provisions of the NRPSPS or the RFPS 2005;;

• “illness” means a physical or mental disorder included either in the International Statistical Classification of Diseases and Related Health Problems or in the Diagnostic and Statistical Manual of Mental Disorders;

• “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:the Army Pensions Warrant 1977, Part 2, Section 2, article 45 or Part 3, Section 7, article 149;the Queen's Regulations for the Royal Air Force , Chapter 38, Section 2, regulation 2938(2) or Chapter 39, Section 1, regulation 3023(2);the Order in Council 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 (d), (e) or (f), or the equivalent provisions of the FTRSPS 2010;

• “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);

• “the NRPSPS” means the occupational pension scheme for members of the Non- Regular Permanent Staff set out in Chapter 9 of the Territorial Army Regulations 1978 made by the Defence Council in exercise of the powers conferred on them by sections 4(2) and (3) and 8(2) and (3) of the Reserve Forces Act 1996;

• “predominant” means more than 50 per cent;

• “the RFPS 2005” means the occupational pension scheme for members of the reserve forces established by regulations made by the Defence Council in exercise of the powers conferred on them by sections 4(2) and (3) and 8(2) and (3) of the Reserve Forces Act 1996;

• “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—

• (a) . . . is as a result entitled to an invaliding pension or ill health pension, or

• (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 7 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 7 years before the onset of the illness; or

• (c) a mental disorder capable of being caused by an incident occurring less than 7 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 7 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 documents

5

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 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) Subject to articles 15(1A), 15A(1) , 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 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—

• (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

and in each case service was the predominant cause of the worsening of the injury and, subject to articles 15(1A), 15A(1), 15B(1) and 15C(1), 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—

• (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 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—

• (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 7 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 7 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 – 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 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;

in 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.

• (4) 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.

• (5) 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 , 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 , the worsening of the injury, or death.

• (7) This article does not apply unless the cause of the injury, the 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 - exclusions

11

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 or 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;