The Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions (Amendment) Order 2009

EXPLANATORY NOTE

(This note is not part of the Order)

This Order amends the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006 (“the principal Order”) which makes provision for pensions and other awards in respect of disablement or death due to service before 6th April 2005 in the naval, military and air forces.

Article 2 revokes article 7(2) of the principal Order. Article 7 provides for the award of a gratuity where the degree of disablement is assessed at less than 20% at the rates specified in Table 2 of Part III of Schedule 1 to the principal Order. A new Table 2, substituted by article 15(b), enables all gratuities to be awarded on the assumption that disablement is of indeterminate duration. Hitherto, lower rates of gratuities have been applied to temporary disablement. Paragraph (2) of article 7 contained powers relating to the award of a gratuity for temporary disablement, which are no longer required.

Article 3 amends article 8 of the principal Order, introducing a new provision allowing for automatic payment of constant attendance allowance at the intermediate rate where a pensioner’s degree of disablement in respect of one or more injuries is assessed at not less than 80%, and one of those injuries is a terminal illness. By an amendment to article 34, made in article 10 of this Order, a claim can be made on behalf of a terminally ill pensioner without his knowledge or authority. Article 17 inserts the definition of “terminal illness” in Schedule 6 to the principal Order.

Articles 4, 11 and 13 supplement references to the Welfare Reform Act 2007 in articles 10, 50 and 56 of the principal Order by adding references to corresponding legislation in Northern Ireland. In addition, article 13 amends the heading to article 56, correcting an error made in the drafting of the principal Order on consolidation in 2006.

Article 5 amends article 14 of the principal Order. It provides for the automatic payment of higher rate comforts allowance where disablement is assessed at 100%, and the pensioner is in receipt of the intermediate or exceptional rate of constant care allowance.

Article 6 amends article 15 of the principal Order, adding new conditions for the payment of an allowance for lowered standard of occupation. A pensioner in receipt of incapacity benefit, employment and support allowance or an analogous benefit or allowance will not be eligible to receive the allowance where a claim is made on or after 6th April 2009.

The amendment to article 22 of the principal Order made in article 7, increases the period from 52 to 104 weeks in which a deceased member could have been engaged in remunerative work in order to be treated as if he was in receipt of unemployability allowance. This ensures consistency with changes to the conditions for payment of that allowance made in 2007.

Article 23 of the principal Order is amended by article 8. The rates of supplementary pensions for surviving spouses and civil partners are contained in Tables 6 and 7 in Schedule 2 to the principal Order (Schedule 4 to this Order).

A new article 32 of the principal Order is inserted by article 9. It simplifies the qualifying conditions for funeral expenses. Where a former member of the armed forces dies on or after 6 April 2009, death is due to service before 6th April 2005, and a claim made within three months of the funeral, the Secretary of State will make an award of £2,200.

Article 12 revokes article 55 of the principal Order. Where a claim is made on or after 6th April 2009, a child’s pension will no longer be withheld or reduced on the grounds that the child’s maintenance is otherwise provided for.

The amendments to article 61 of the principal Order, contained in article 14, reflect changes to the tribunal system following the coming into force of the Tribunals, Courts and Enforcement Act 2007, and correct errors made in the drafting of the principal Order on consolidation in 2006.

Articles 15 and 16 substitute Tables in Schedules 1 and 2 to the principal Order thereby varying the rates of retired pay, pensions, gratuities and allowances in respect of disablement or death due to service in the armed forces. In addition, article 15 adds mesothelioma to the list of disablements attracting an automatic assessment of 100%.

Article 18 makes various transitory provisions and savings.

A full regulatory impact assessment has not been produced for this instrument as no impact on the private or voluntary sectors is foreseen.