Joint Committee on Statutory Instruments Twelfth Report


APPENDIX 1

Memorandum by the Ministry of Defence

Naval, Military and Air Forces etc. (Disablement and Death) Service Pensions
Amendment Order 2001 (S.I. 2001/409)

Personal Injuries (Civilians) Amendment Scheme 2001 (S.I. 2001/410)

Introduction

1. These Instruments are not made under powers requiring the affirmative resolution procedure. However, since they make wide-ranging changes to existing Orders and Schemes, as well as routine uprating in two cases, the Department considered a Memorandum might be helpful to the Committee. In relation to each Instrument the commencement date is 9 April 2001, with some transitional commencement arrangements, and one exception, as explained below.

2. The Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Amendment Order 2001 ("the SPO Amendment Order") and the Personal Injuries (Civilians) Amendment Scheme 2001 ("the PICS Amendment Scheme") give effect to the annual variation of amounts payable under war pensions schemes. Similar amending Instruments were laid before Parliament last year.

3. The SPO Amendment Order and the PICS Amendment scheme also contain changes which are consequent upon the introduction of new appeal rights and time limits for appeals in war pensions. Section 57 of the Child Support, Pensions and Social Security Act 2000 c. 19 ("the 2000 Act") inserts a new section 5A into the Pensions Appeals Tribunals Act 1943 c. 39 ("the 1943 Act") to enable new rights to be specified in regulations and section 58 of the 2000 act amends section 8 of the 1943 Act to provide time limits for appeals. The relevant Regulations, which are shortly to be debated and are the subject of a separate Memorandum to the Committee, are the Pensions Appeals Tribunals (Additional Rights of Appeal) Regulations 2001 and the Pensions Appeal Tribunals (Late Appeals) Regulations 2001.

4. The amendments to the text of the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order ("the SPO") and the Personal Injuries (Civilians) Scheme ("the PICS") are generally to backdating rules or the ability to carry out reviews or to remove references to appeals. The changes in the War Pensions (Mercantile Marine) (Amendment) Scheme 2001 and the Pensions Appeal Tribunals (Posthumous Appeals) Amendment Order 2001 are similar.

5. The SPO Amendment Order and the PICS Amendment Scheme also contain changes which are intended to put into the SPO and PICS more detail with regard to certain decisions. These changes are in recognition of the greater role which the Pensions Appeal Tribunal is likely to have in future with regard to war pensions decisions.

6. In addition, a few of the changes in the SPO Amendment Order and the PICS Amendment Scheme are equalising measures as between male and female war disablement pensioners.

7. The Committee have in previous years asked the Department to indicate when the SPO will be consolidated. The Department's efforts have been concentrated on the introduction of changes to the appeal arrangements and the Department regrets it is not yet possible to give a definite indication of when work on the consolidation may be finalised and placed before the Privy Council.

(1)  The Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Amendment Order 2001

8. This Order further amends the SPO which makes provision for pensions and other awards in respect of disablement and death due to service in the naval, military and air forces. The amendments are provided for in Schedule 1. References below to articles are to articles in the SPO.

9. Paragraphs 1, 2, 4 and 16 of Schedule 1 make consequential amendments to articles 1, 3A, 15, 16 and 61 in relation to articles 14, 15, 36, 56, 58 and 61.

10. Paragraph 3 of Schedule 1 amends article 14 to define when different rates of constant attendance allowance are payable and to increase the number of rates to four.

11. Paragraph 5 of Schedule 1 amends article 18 to clarify the meaning of "therapeutic earnings" for the purposes of unemployability allowance and to remove the provision which prevents female war disablement pensioners aged 60-64 years from establishing eligibility to unemployability allowance. Paragraph 5 also clarifies the conditions for receipt of an increase of unemployability allowance for an adult dependant by including in article 18(5)(b) examples of the types of income to which the Secretary of State can have regard. This change is commenced 6 months after the main commencement date since it has not been the Secretary of State's practice to have regard to one of these examples (occupational pension) and this therefore gives war disablement pensioners reasonable notice of the change before it takes effect.

12. Paragraph 6 of Schedule 1 amends article 19 to remove the provision which prevents female war disablement pensioners aged 55 years or over from establishing eligibility to invalidity allowance, and to standardise the upper age limit to 60 years for both sexes.

13. Paragraph 7 of Schedule 1 makes minor drafting changes to article 21 and removes the provision which prevents female war disablement pensioners aged 60-64 years from establishing eligibility to allowance for lowered standard of occupation. Paragraph 8 of Schedule 1 simplifies the conditions for award of treatment allowance in article 23 and the provisions in that article on overlapping awards.

14. Paragraph 9 of Schedule 1 brings the conditions for entitlement to mobility supplement under article 26A into a single paragraph and paragraph 10 of Schedule 1 is an uprating provision which increases the amount of a supplementary widow's pension payable under article 29.

15. Paragraph 11 of Schedule 1 substitutes articles 35 to 37 as regards awards in respect of children. The new text carries clearer headings, removes references to illegitimate children, provides that children are to be treated equally irrespective of whether the service member who dies was male or female, and clarifies when an allowance is payable for an infirm child over the child's age limit.

16. Paragraph 12 of Schedule 1 amends article 42A by updating the definition of in-patient and by defining what is intended by "reasonable funeral expenses".

17. Paragraphs 13, 14 and 26 of Schedule 1, and Schedule 8, amend articles 54 and 56 and insert Schedule 7 into the SPO to extend suspension powers (where a member is in hospital or an institution) to allowances, and to specify the amount of deductions in respect of allowances and some pensions.

18. Paragraph 15 of Schedule 1 removes references to illegitimate children in article 58 and provides that deductions from children's awards where maintenance is paid are not to be dependent on the gender of the service member.

19. Paragraph 17 of Schedule 1 removes unnecessary reference to the First World War and expands the reference to young offenders in article 62 to include types of establishments in different parts of the UK. It also prescribes the conditions for the award of hardship payments when a pension has been forfeited and the conditions for the award of a lump sum upon release from detention.

20. Paragraphs 19 and 20 of Schedule 1, and Schedules 2 to 7, are uprating provisions which make amendments to and substitute Tables in Schedules 1 and 2 to the SPO, thereby varying the rates of retired pay, pensions, gratuities and allowances in respect of disablement or death due to service in the armed forces.

21. Paragraph 18 of Schedule 1 amends article 67 to enable the Secretary of State to review an assessment or decision of the Pensions Appeal Tribunal where there is a change of circumstances and to review any assessment where there is an improvement or deterioration in the disablement.

22. Paragraphs 21 and 23 of Schedule 1 remove references in Schedule 3 to the SPO applications for appeals. These are changes consequent upon amendments to section 8 of the 1943 Act made by section 58 of the 2000 Act. Paragraph 21 also amends paragraph 1 of Schedule 3 to the SPO to introduce a new sub-paragraph (6A) to clarify the commencement date of an award where there has been official error and what is meant by official error.

23. Paragraph 22 of Schedule 1 omits paragraph 4(a) of Schedule 3 regarding backdating where there is additional evidence. In these circumstances the rules for commencement dates on review under paragraph 1 of the Schedule will apply, or those for review under paragraph 6 where there has been a change in medical opinion, as the case may be. Paragraph 24 of Schedule 1 substitutes wording in paragraph 9 of Schedule 3 to the SPO concerning administrative error.

24. Paragraph 25 of Schedule 1 substitutes updated definitions of "adopted" "child" and "student" in Schedule 4 to the SPO.

25. Article 2 of the SPO Amendment Order provides for the appeal-related changes and amendments to allowances to apply to decisions made on and after 9 April 2001 (article 2(2)), the changes to deductions to apply to deductions for any day on or after 9 April 2001 (article 2(4)), the amendment to paragraph (5)(b) of article 18 to apply to claims made six months or more after 9 April 2001 (article 2(3)) and the changes to withholding or forfeiture to apply to decisions to do so made on or after 9 April 2001 (article 2(5)).

(2)  The Personal Injuries (Civilians) Amendment Scheme 2001

26. This Scheme further amends the PICS which makes provision for the payment of pensions and allowances to or in respect of civilians who were killed or injured during the 1939-45 World War. The amendments are provided for in Schedule 1. References below to articles are to articles of the PICS. The changes are similar to those made to the SPO.

27. Paragraph 1 of Schedule 1 substitutes updated definitions of "adopted" and "dependent child" in article 2.

28. Paragraphs 2, 4 and 13 of Schedule 1 are consequential amendments to articles 3, 15, 16 and 67 in relation to articles 14, 64 and 57.

29. Paragraph 3 of Schedule 1 amends article 14 to define when different rates of constant attendance allowance are payable and to increase the number of rates to four.

30. Paragraph 5 of Schedule 1 amends article 18 to clarify the meaning of "therapeutic earnings" for the purposes of unemployability allowance and to remove the provision which prevents disabled female persons aged 60-64 years from establishing eligibility to unemployability allowance. Paragraph 5 also clarifies the conditions for receipt of an increase of unemployability allowance for an adult dependant by including in article 18(5)(b) examples of the types of income to which the Secretary of State can have regard. This change is commenced 6 months after the main commencement date since it has not been the Secretary of State's practice to have regard to one of these examples (occupational pension) and this allows a reasonable period of notice to disabled persons of the change.

31. Paragraph 6 of Schedule 1 amends article 19 to remove the provision which prevents disabled female persons aged 55 years or over from establishing eligibility to invalidity allowance, and to standardise the upper age limit to under 60 years for both sexes.

32. Paragraph 7 of Schedule 1 makes minor drafting changes to article 21 and removes the provision which prevents disabled female persons aged 60-64 years from establishing eligibility to allowance for lowered standard of occupation. Paragraph 8 of Schedule 1 clarifies the conditions for award of treatment allowance in article 23.

33. Paragraph 9 of Schedule 1 brings the conditions for entitlement to mobility supplement under article 25A into a single paragraph and paragraph 10 of Schedule 1 amends article 26A by updating the reference to in-patient and by defining what is meant by "reasonable funeral expenses". It also aligns the heading of this article and article 49A of the PICS with the equivalent provision in the SPO.

34. Paragraph 11 of Schedule 1 substitutes articles 33 to 35 as regards awards in respect of children. The new text carries clearer headings, removes references to illegitimate children, provides that children are to be treated equally irrespective of whether the deceased person was male or female, and clarifies when an allowance is payable for an infirm child over 15.

35. Paragraphs 12 and 22 of Schedule 1, and Schedule 3, amend article 64 of, and insert Schedule 7 into PICS to extend suspension powers (where a disabled person is in hospital or an institution) to allowances, and to specify the amount of deductions in respect of allowances and some pensions.

36. Paragraph 14 of Schedule 1 removes an unnecessary reference to the First World War and expands the reference to young offenders in article 68 to include names of establishments in different parts of the UK. It also prescribes the conditions for the award of hardship payments when a pension has been forfeited and the conditions for the award of a lump sum upon release from detention.

37. Paragraph 15 of Schedule 1 removes references to illegitimate children in article 70 and provides that deductions from children's awards where maintenance is paid are not to be dependent on the gender of the disabled person.

38. Paragraph 17 of Schedule 1, and Schedule 2, are uprating provisions which make amendments to, and substitute Schedule 3 and 4, to the PICS, thereby varying the amounts of allowances, pensions and awards payable under the principal Scheme and the amounts of income to be disregarded for the purposes of certain parts of the Scheme.

39. Paragraph 16 of Schedule 1 amends article 76 to enable the Secretary of State to review an assessment or decision of the Pensions Appeal Tribunal where there is a change of circumstances and to review any assessment where there is an improvement or deterioration in the disablement.

40. Paragraphs 18 and 20 of Schedule 1 remove references in Schedule 5 to the PICS to applications for appeals. These are changes consequent upon amendments to section 8 of the 1943 Act made by section 58 of the 2000 Act. Paragraph 18 also amends paragraph 1 of Schedule 5 to the PICS to introduce a new sub-paragraph (6A) to clarify the commencement date where there has been official error and what is meant by official error.

41. Paragraph 19 of Schedule 1 omits paragraph 4(a) of Schedule 5 to the PICS as regards backdating of a decision where there has been additional evidence. In these circumstances the rules for commencement dates on review under paragraph 1 of the Schedule will apply, or those for review under paragraph 6 where there has been a change in medical opinion, as the case may be. Paragraph 21 substitutes wording in paragraph 9 of Schedule 5 to the PICS concerning administrative error.

42. Article 2 of the PICS Amendment Order provides for the appeal-related changes and amendments to allowances to apply to decisions made on and after 9 April 2001 (article 2(2)), the changes to deductions to apply to deductions for any day on or after 9 April 2001 (article 2(4)), the amendment to paragraph (5)(b) of article 18 to apply to claims made six months or more after 9 April 2001 (article 2(3)) and the changes to withholding or forfeiture to apply to decisions to do so made on or after 9 April 2001 (article 2(5)).

(3)  The War Pensions (Mercantile Marine) (Amendment) Scheme 2001

43. This Scheme further amends the War Pensions (Mercantile Marine) Scheme 1964 ("the principal Scheme") which makes provision for pensions and other awards in respect of disablement or death due to service as mariners since 2 September 1939.

44. Article 3 amends Schedule 7 to the principal Scheme as regards commencing dates for awards.

45. Article 3(2) removes references to appeals in Schedule 7 to the principal Scheme to reflect similar changes to the SPO and the PICS following amendments to section 8 of the 1943 Act by section 58 of the 2000 Act. Article 3(2) also inserts a new sub-paragraph (6A) into Schedule 7 to the principal scheme to clarify the commencement date where there has been official error and what is meant by official error.

46. Article 3(3) omits sub-paragraph 4(a) of Schedule 7 to the principal Scheme regarding backdating where there is additional evidence. In these circumstances the rules for commencement dates on review under paragraph 1 of the Schedule will apply, or those for review under paragraph 6 where there has been a change in medical opinion, as the case may be. Article 3(4) also removes references to appeals in paragraph 5 of Schedule 7 to the principal Scheme as a result of the changes made by section 58 of the 2000 Act.

47. Article 3(5) substitutes wording in paragraph 9 of Schedule 7 to the principal Scheme concerning administrative error.

(4)  The Pensions Appeal Tribunals (Posthumous Appeals) Amendment Order 2001

48. This Order amends the Pensions Appeal Tribunals (Posthumous Appeals) Order 1980 ("the Principal Order") which makes provision for an appeal to be brought or continued after the death of a claimant. The amendments are provided for in the Schedule.

49. Paragraph 1 of the Schedule updates a number of definitions in article 1 of the principal Order.

50. Paragraph 2 of the Schedule amends article 3 of the principal Order to allow for posthumous appeals in respect of claims to supplements and allowances available under the SPO or the PICS. It provides for continuance of an appeal in respect of those benefits which is lodged before death under Section 5A of the 1943 Act (as inserted by the 2000 Act) to be continued by the designated person after the claimant's death. It also prescribes time limits for posthumous appeals and the circumstances in which the Secretary of State may accept a late posthumous appeal. Paragraph 3 of the Schedule makes a consequential amendment to article 5 of the principal Order as a result of the creation of new appeal rights, under the changes made to the 1943 Act by section 57 of the 2000 Act, by inserting an additional cross reference relating to those rights.

51. Paragraph 4 of the Schedule omits article 8 of the principal Order as a result of the introduction of time limits for war pensions appeals under the amendments to the 1943 Act in section 58 of the 2000 Act. It also omits the current time limit for a posthumous appeal under article 9(2) of the principal Order because new time limits are prescribed withing article 2 of the principal Order as from 9 April 2001.

26 February 2001


 
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