The Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006

Article 71(1)

SCHEDULE 4 U.K. TRANSITORY PROVISIONS

PART I U.K. CONTINUATION OF TRANSITORY PROVISIONS IN SCHEDULE 5 TO THE SERVICE PENSIONS ORDER 1983

Interpretation of Part I U.K.

1.  In this Part of this Schedule unless the context otherwise requires—

“1946 instrument” means the Order in Council of 4th June 1946 M1 , the Royal Warrant of 12th April 1946 M2 or, as the case may be, the Order by His Majesty of 12th June 1946;

“1949 instrument” means the Order in Council of 29th September 1949, the Royal Warrant of 24th May 1949 M3 or, as the case may be, the Order by His Majesty of 27th September 1949;

“1973 instrument” means the Order in Council of 27th July 1973, the Royal Warrant of 24th July 1973 M4 or, as the case may be, the Order by Her Majesty of 25th July 1973 M5 ;

“1974 instrument” means the Order in Council of 28th June 1974, the Royal Warrant of 18th June 1974 M6 or, as the case may be, the Order by Her Majesty of 21st June 1974 M7

“1977 instrument” means the Order in Council of 9th March 1977, the Royal Warrant of 11th March 1977 M8 or, as the case may be, the Order by Her Majesty of 15th March 1977 M9 ;

“member” means a member of the armed forces;

“unmarried dependant” means an unmarried dependant who lived as a wife of the member;

and the other expressions have the meanings assigned to them in Schedule 6.

Marginal Citations

M1 S.R. and O. 1946/812.

M2 Cmnd 6799 of 1946.

M3 Cmnd 7699 of 1949.

M4 Cmnd 5395 of 1973.

M5 Cmnd 5396 of 1973.

M6 Cmnd 5670 of 1974.

M7 Cmnd 5671 of 1974.

M8 Cmnd 6763 of 1977.

M9 Cmnd 6762 of 1977.

Pensions for unmarried dependants of deceased disablement pensioners under a 1946 instrument U.K.

2.  Where immediately before the death of a member there was payable to him, by virtue of article 71(6)(a) of a 1964 instrument and article 71(1) of and Schedule 4 to the Service Pensions Order 1978, an allowance under article 12(1) of a 1946 instrument (family allowances) in respect of an unmarried dependant, that dependant may, upon the member's death, be awarded a pension for which she would have been eligible under article 28 of the 1946 instrument (pensions for unmarried dependants), if that instrument had not been revoked and for so long as the conditions for an award under that article are fulfilled.

Continuation of pensions for unmarried dependants of deceased pensioners under a 1946 instrument U.K.

3.  Where immediately before the date on which this Order comes into operation, an unmarried dependant was, by virtue of article 71(6)(b) of a 1964 instrument and article 71(1) of and Schedule 4 to the Service Pensions Order 1978, in receipt of a pension under article 28(3) of a 1946 instrument (pension while in charge of member's child and in receipt of allowance under following provisions of that Part of that instrument in respect of the child) the award of that pension may be continued when she ceases to have that child in her care and to receive an allowance under Part IV of this Order in respect of that child if she is in pecuniary need and incapable of self-support.

Withholding or reduction of disablement pension under a 1949 instrument U.K.

4.  The Secretary of State may withhold or reduce an award under a 1949 instrument in respect of the disablement of an officer whose service was terminated voluntarily or on account of misconduct.

Transitional provision on abolition of killed in action gratuities U.K.

5.  Article 28 and column 2 of Schedule 5 to the 1964 instrument shall continue to apply to any deaths occurring before 1st August 1973 as they would have applied but for their revocation by the 1973 instrument.

Assessment of specified disablement under the 1964 instruments U.K.

6.  Where, on or after 22nd July 1974, it is necessary in any case for an assessment of disablement to be made in accordance with the provisions of Schedule 1 to a 1964 instrument for any period commencing prior to the said 22nd July, the provisions of the said Schedule 1 in force immediately prior to the said 22nd July shall continue to apply as they would have applied had other provision not been substituted for them by the 1974 instrument.

PART II U.K. CONTINUATION OF SAVINGS IN THE 1992 ORDER AND THE 1993 ORDER

Savings provisions made by the 1992 Order in respect of articles 12, 18, 23 and 53 of the Service Pensions Order 1983 U.K.

7.—(1) Notwithstanding—

(a) the revocation of article 12 of the Service Pensions Order 1983 (allowance for eligible members of the family), and

(b) the amendment of—

(i) article 18(5) (additional unemployability allowances), and

(ii) article 23 (treatment allowance)

of that Order (“the saved provisions”)

by the Naval, Military and Air Forces etc. (Disablement and Death) Service Pensions Amendment Order 1992 M10 (“the 1992 Order”), and notwithstanding the revocation of the 1992 Order and the Service Pensions Order 1983 by this Order, in any case where a pension or allowance or any addition to a pension was payable under any of the saved provisions in respect of a period immediately before 6th April 1992 and is still payable immediately before 11th April 2006 by virtue of the savings set out in article 8 of the 1992 Order, the saved provisions shall continue to have effect as though this Order had not come into force.

(2) The rate for the allowance for eligible members of the family, continued by paragraph (1)(a), shall be the rate payable immediately before 6th April 1992 M11 .

Marginal Citations

M10 S.I. 1992/710.

M11 See S.I. 1983/883, article 12.

Savings provision made by the 1993 Order in respect of articles 13, 38, 40 and 41 of the Service Pensions Order 1983 U.K.

8.—(1) Notwithstanding—

(a) the revocation of—

(i) article 13 (education allowance for disablement),

(ii) article 38 (education allowance for death),

(iii) article 40 (pensions to parents), and

(iv) article 41 (pensions to other dependants)

of the Service Pensions Order 1983; and

(b) the amendment of—

(i) article 23 (treatment allowance),

(ii) article 24 (allowance where abstention from work is necessary following treatment in a hospital or similar institution), and

(iii) article 25 (allowance for part-time treatment)

of that Order (“the saved provisions”)

by the Naval, Military and Air Forces etc. (Disablement and Death) Service Pensions Amendment Order 1993 M12 (“the 1993 Order”), and notwithstanding the revocation of the 1993 Order and the Service Pensions Order 1983 by this Order, in any case where a pension or allowance was awarded under any of the saved provisions in respect of a period immediately before 12th April 1993 and is still payable immediately before 11th April 2006 by virtue of the transitional provisions set out in article 16 of the 1993 Order, the saved provisions shall, for the duration of that award, continue to have effect as though this Order had not come into force.

(2) The rates for the allowances and pensions specified in paragraph (2)(a) and continued by that paragraph shall be the rates payable immediately before 12th April 1993 M13 .

(3) Notwithstanding the amendments made to articles 23, 24 and 25 of the Service Pensions Order 1983 by the 1993 Order, where treatment began before 12th April 1993 and a claim for an allowance under any of those provisions is made in respect of that treatment on or after 11 April 1993, the Secretary of State shall determine the claim as though this Order had not come into force.

Marginal Citations

M12 S.I. 1993//598.

M13 See S.I. 1993/598, Schedule 8.

PART III U.K. CONTINUATION OF TRANSITIONAL PROVISIONS IN THE 1996 ORDER

9.—(1) Notwithstanding the revocation of the Naval, Military and Air Forces etc. (Disablement and Death) Service Pensions Amendment (No. 2) Order 1996 M14 (“the 1996 Order”) and the Service Pensions Order 1983 by this Order, article 3 of, and Schedule 2 to, the 1996 Order (transitional provisions) shall continue to have effect as though this Order had not come into force. U.K.

(2) The provisions of Schedule 2 to the 1996 Order are set out below and any reference in that Schedule to—

(a) “this Order” is a reference to the 1996 Order;

(b) “the Service Pensions Order” is a reference to the Service Pensions Order 1983;

(c) a numbered article is a reference to the article bearing that number in the Service Pensions Order 1983.

“SCHEDULE 2 TO THE 1996 ORDER U.K. TRANSITIONAL PROVISIONS

1.   In this Schedule—

(a) “commencement date” means the date on which this Order comes into force;

(b) “first review” means the first review after commencement date of the entitlement of a member of the armed forces to a relevant allowance;

(c) “relevant allowance” means any allowance, pension, retired pay or supplement payable either—

(i) under a provision which is revoked by article 4 of this Order; or

(ii) by virtue of a grant made by the Secretary of State for Defence out of monies provided by Parliament

under conditions analogous to those relating to any allowance, pension, retired pay or supplement payable under the Service Pensions Order other than those formerly laid down in article 13 or 38 (education allowances) M15 .

2.   This Schedule applies where, immediately before commencement date a relevant allowance or an allowance analogous to an education allowance under article 13 or 38 was payable to or in respect of a member of the armed forces, and that allowance would have continued to be payable but for the coming into force of this Order.

3.— (1) after commencement date, and until the first review, the decision by virtue of which the relevant allowance was payable immediately before commencement date shall have effect as if it were a decision that the allowance, pension, retired pay or supplement under the Service Pensions Order to which the relevant allowance was analogous, should be payable at the same rate, subject to the same conditions and for the same term (subject to the following provisions of this Schedule) as the relevant allowance would have been if this Order had not come into force.

(2) Where on the first or any subsequent review of a decision referred to in sub-paragraph (1) that decision is reviewed to the disadvantage of the recipient there shall be paid to him under this paragraph an amount equal to the difference between the amount payable under the Service Pensions Order under the reviewed decision and the amount which would have been payable if the decision had not been reviewed, and that amount shall be increased in accordance with any subsequent general increase in the rate of the pension, retired pay, allowance or supplement to which it is analogous, except where—

(a) it is determined that the decision which is the subject of the review was erroneous in law and that error was attributable to misrepresentation, or failure to disclose a material fact, by the recipient or someone acting on his behalf; or

(b) he becomes entitled by virtue of another review to a higher total payment under the Service Pensions Order.

(3) In a case where head (a) of subparagraph (2) applies, the amount payable under this paragraph shall be reduced to that which would have been payable but for the misrepresentation or failure to disclose a material fact.

(4) In a case falling within head (b) of subparagraph (2), the amount of the payment under this paragraph shall be reduced by the amount of the increase in the total payment under the Service Pensions Order.

4.   Any payment under paragraph 3 shall be in addition to any allowance, pension, retired pay or supplement which would have been payable under the Service Pensions Order if this Order had not been made.

5.   Where immediately before the coming into force of this Order a person was in receipt by virtue of—

(a) a provision revoked by article 4 of this Order; or

(b) a grant made by the Secretary of State for Defence out of monies provided by Parliament, of an allowance analogous to that payable under article 13 or 38 (education allowances)

there may be paid to him an allowance under paragraph 6 below, subject to paragraphs 7 and 8 below.

6.— (1) Subject to subparagraphs (3), (4) and (5), there may be paid to a member of the armed forces who is in receipt of retired pay or pension, an allowance in respect of a child for the purpose of his education if the child is a child of the member or by virtue of article 18(5)(e) is treated as a child of the member.

(2) Subject to the following provisions of this paragraph, an allowance in respect of a child to whom or in respect of whom an award has or, but for the provisions of article 33, would have been made under article 35, 36, 37 or 39 may be awarded for the purpose of that child's education.

(3) Subject to sub-paragraphs (4) and (5), an allowance under subparagraph (1) or (2) shall be payable only if—

(a) the child has attained the age of 5 years; and

(b) the circumstances of the family are such as to require it; and

(c) the Secretary of State is satisfied that the type of education which the child is receiving or is to receive is suitable for that child.

(4) Where a child begins or is to begin school before the age of 5 years, subparagraph (3)(a) shall have effect as if for “has attained the age of 5 years” there were substituted the words “has commenced the term's attendance at school in the course of which he will attain the age of 5 years”.

(5) The amount of an allowance under this paragraph shall be determined by the Secretary of State, but the total payments made in respect of any period of 12 months for any one child shall not exceed £120.

7.   An allowance payable under paragraph 6 of this Schedule shall not be payable if at any time after the coming into force of this Order—

(a) the conditions set out in that paragraph cease to be satisfied; or

(b) it appears to the Secretary of State that it is for any other reason inappropriate for payment of the allowance to continue.

8.   Paragraphs 3 and 6 of this Schedule are without prejudice to any power now exercisable by the Secretary of State with the concurrence of the Treasury to make provision in excess of that permitted by this Order or the Service Pensions Order in exceptional circumstances conferred by—

(a) the Order in Council dated 19th December 1881 concerning non-effective pay and allowances for the Royal Navy at rates, and under circumstances, other than those laid down in existing Regulations;

(b) the Royal Warrant dated 27th October 1884 concerning the issue of pay, non-effective pay and allowances for the Army; or

(c) the Order of His Majesty dated 14th January 1922 concerning the issue of pay, non-effective pay and allowances of the Royal Air Force,

and accordingly those instruments shall have effect as if a reference to those paragraphs of this Schedule were included in each of them.”.

Marginal Citations

M14 S.I. 1996/1638.

M15 These articles were revoked by S.I. 1993/598 but continue to have effect in respect of cases where awards under them were in payment immediately before their revocation.