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

• (2) Where it appears to the Secretary of State that a question arises under paragraph (1), he may only give directions that payment of benefit in accordance with that decision be suspended within the relevant period.

• (3) A suspension under paragraph (1) shall cease unless, within the relevant period, the person awarded the benefit by virtue of the decision (“the beneficiary”) is given or sent notice in writing that an application for leave to appeal has been made against that decision.

• (4) Where the beneficiary has been given or sent notice within the relevant period that an application for leave to appeal has been made, the suspension may continue until that application for leave to appeal and any subsequent appeal is determined.

• (5) In this article—

• (a) “appeal” means—

• (i) in England, Wales and Northern Ireland an appeal to the Court of Appeal or, in Scotland, a reclaiming motion to the Inner House of the Court of Session, against the determination of an application for judicial review;

• (ii) in England, Wales and Northern Ireland an appeal to the House of Lords against a decision of the Court of Appeal in an application referred to in head (i) above, or in Scotland, an appeal to the House of Lords against a decision of the Inner House of the Court of Session in a reclaiming motion in an application referred to in head (i) above;

• (b) “application for leave to appeal” means an application or petition for leave to appeal as the case may be in the proceedings referred to in heads (i) and (ii) of subparagraph (a) above;

• (c) “relevant period” means the period of three months beginning with the date on which notice in writing of the decision in question and of the reasons for it is received by the Secretary of State.

Suspension in other cases

59

• (1) Where it appears to the Secretary of State that—

• (a) an appeal has been brought or a question arises whether an appeal ought to be brought against a decision of a court in relation to a case (“the primary case”); and

• (b) if such an appeal were to be allowed a question would arise in relation to another case (“the secondary case”) whether the award of benefit in that case ought to be reviewed,

he may direct that payment of the benefit under the award in the secondary case be suspended, in whole or in part—

• (i) until the time limit for making an application for leave to appeal in the primary case has expired, or;

• (ii) if such an application is made, until such time as that application and any subsequent appeal has been determined, whichever is the later.

• (2) In this article the expressions “appeal” and “application for leave to appeal” have the same meanings as they have in article 56.

Payments on death

60

• (1) On the death of a person who has made a claim for benefit, the Secretary of State may appoint such person as he thinks fit to proceed with the claim.

• (2) Any sum which is payable under an award on a claim proceeded with under paragraph (1) shall be paid to the personal representatives of the deceased or to such other persons as the Secretary of State considers fit.

• (3) An award on a claim proceeded with under paragraph (1) shall not provide for payment of benefit for any period after the date of death.

PART IX — THIRD PARTIES

Persons under 18

61

• (1) Where a child is less than the age of 18, a claim for child's payment shall be made by the child's parent or by a person having legal responsibility for the child and such a person may exercise on behalf of the child the powers specified in articles 42, 45 and 49 and has the duty imposed by article 53(1)(a).

• (2) Where the Secretary of State is satisfied that a claim for child's payment made by a person referred to in paragraph (1) cannot be determined because the person making the claim has not provided information requested under article 53(1)(a), the Secretary of State shall appoint a person to pursue the claim on the child's behalf.

• (3) Where the Secretary of State has made an appointment under paragraph (2)

• (a) he may at any time revoke it and make another appointment under paragraph (2); and

• (b) the person appointed may resign his office after having given one month's notice in writing to the Secretary of State of his intention to do so.

• (4) Child's payment awarded in respect of an eligible child aged less than 18 shall be paid to the child's parent or the person having legal responsibility for the child or, if the Secretary of State considers that it is in the interests of the child that a person other than the parent or person having legal responsibility for the child should be paid the child's payment, to a person (who, if a natural person, is over the age of 18) appointed by the Secretary of State in writing and the person receiving the child's payment shall apply the payment for the benefit of the child.

• (5) Where the Secretary of State has made an appointment under paragraph (4)

• (a) he may at any time revoke it and either—

• (i) make another appointment under paragraph (4); or

• (ii) pay the child's payment to the parent or the person having legal responsibility for the child; and

• (b) the person appointed may resign his office after having given one month's notice in writing to the Secretary of State of his intention to do so.

• (6) The Secretary of State may, before appointing a person under paragraph (4), require that person to give such undertaking as the Secretary of State considers necessary as to the use of the child's payment.

Persons who are mentally infirm

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• (1) Where—

• (a) a person is, or is alleged to be, entitled to benefit, whether or not a claim for benefit has been made by him or on his behalf; and

• (b) that person is, in the opinion of the Secretary of State incapable of managing his own affairs by reason of mental infirmity; and

• (c) no person has legal authority to act on his behalf

the Secretary of State may in writing appoint a person (who, if a natural person, is over the age of 18) to act for that person in respect of this Order.

• (2) A person appointed under paragraph (1) shall—

• (a) exercise, on behalf of the mentally infirm person, any right to which that person may be entitled under this Order and fulfill on his behalf any duty imposed on that person by this Order;

• (b) receive and deal with any sums payable to him; and

• (c) apply those sums for the benefit of the mentally infirm person.

• (3) Where the Secretary of State has made an appointment under paragraph (1)—

• (a) he may at any time revoke it and make another appointment under paragraph (1); and

• (b) the person appointed may resign his office after having given one month's notice in writing to the Secretary of State of his intention to do so.

• (4) The Secretary of State may, before appointing a person under paragraph (1), require that person to give such undertaking as the Secretary of State considers necessary as to the use of the sums paid to him.

PART X — UP-RATING

Annual up-rating of guaranteed income payment, survivor's guaranteed income payment and child's payment

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In every tax year the sums which are payable to a person by way of guaranteed income payment, survivor's guaranteed income payment or child's payment shall be increased by the same amount as that by which an annual pension of an amount equal to the guaranteed income payment, survivor's guaranteed income payment or child's payment would have been increased under the Pensions (Increase) Act 1971 if it were an annual pension eligible to be increased under that Act.

Up-rating of relevant salary for the purposes of articles 16, 26 and 28

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• (1) Where, in the definition of “relevant salary” in articles 16, 26 and 28, the salary of a former member of the forces on the day his service ends or the day on which he died as the case may be (“the departure day”), is required to be up-rated for inflation, the Secretary of State shall review that salary in order to determine whether it would have retained its value in relation to the general level of prices obtaining in the United Kingdom, estimated in such manner as the Secretary of State thinks fit, had it been paid on the date on which guaranteed income payment, survivor's guaranteed income payment or child's payment as the case may be is to be paid for the first time (“the payment date”).

• (2) Where it appears to the Secretary of State that the general level of prices is greater on the payment day than it was on the departure day, the relevant salary for the purposes of articles 16, 26 and 28 shall be the amount of the former member of the forces' salary on the departure day increased by the percentage by which the general level of prices is greater on the payment day than it was on the departure day.

• (3) The Secretary of State may, in providing for an increase in pursuance of paragraph (2), adjust the increased amount so as to round it up or down to the nearest pound as the case may be.

PART XI — TRANSITORY PROVISION

Transitory provision: Coming into force of the Civil Partnership Act 2004

65

Until such time as Section 1 of the Civil Partnerships Act 2004 comes into force, this Order has effect with the omission of references to civil partners and civil partnerships.

SCHEDULE 1 — MEANING OF “SUBSTANTIAL AND EXCLUSIVE RELATIONSHIP”

PART I — SUBSTANTIAL RELATIONSHIP

In deciding whether a relationship of a deceased member of the forces (“the deceased”) and the claimant is a substantial relationship, the Secretary of State shall have regard to any evidence which the claimant considers demonstrates that the relationship is substantial and shall in particular have regard to the following examples of evidence which could, either alone or together, indicate that the relationship is substantial.

1

Evidence of regular financial support by the deceased.

2

Evidence of a valid will or life insurance policy, valid at the time of the deceased's death, in which—

• (1) the deceased nominates the claimant as principal beneficiary or co-beneficiary with children; or

• (2) the claimant nominates the deceased as the principal beneficiary.

3

Evidence indicating that the deceased and the claimant were purchasing accommodation as joint owners or evidence of joint ownership of other valuable property, such as a car or land.

4

Evidence of a joint savings plan or joint investments of a substantial nature.

5

Evidence that the deceased and the claimant operated a joint account for which they were co-signatories.

6

Evidence of joint financial arrangements such as joint repayment of a loan or payment of each other's debts.

7

Evidence that the deceased or the claimant had given the other a power of attorney.

8

If the deceased and the claimant lived in rented accommodation, evidence that both their names appeared on the lease or rental agreement.

9

Evidence that the deceased and the claimant shared responsibility for children.

10

The length of the relationship.

PART II — EXCLUSIVE RELATIONSHIP

A relationship is not an exclusive relationship if—

• (a) one or both of the parties to the relationship is married to, or is the civil partner of, someone other than the other party to the relationship; or

• (b) one or both of the parties is a party to another relationship which is, or could be considered to be, a substantial and exclusive relationship having regard to the provisions of this Schedule.

SCHEDULE 2 — MODIFICATIONS FOR RESERVE FORCES

1

The following definitions are inserted in article 2(1) in the appropriate alphabetical order—

• “relevant service” has the same meaning as in regulations made under sections 83 and 84 of the Reserve Forces Act 1996 ;

• . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• “reservist's award” means an award payable to a member of a reserve force by virtue of regulations made under sections 83 and 84 or the Reserve Forces Act 1996 in respect of financial loss suffered by him during relevant service, but does not include—any award payable to a self-employed member of a reserve force in respect of his status as an employer,any amount payable to a reservist as a result of expenses incurred by him during a period of relevant service, orany payments made into his civilian occupational pension scheme;

2

• (1) For paragraph (1) of article 4 there is substituted the following paragraph—

(1) Subject to paragraph (3), in this Order “salary”, in relation to a member of the reserve forces in respect of whom benefit is payable, means— (a) the basic pay of a regular member of the forces who is of equivalent rank and seniority, (b) an amount which represents any reservist's award to which he is entitled on the day he leaves the service by virtue of him being in relevant service on that day, (c) where he is not in relevant service on the day he leaves service, an amount which represents any reservist's award he would have been entitled to had he been in relevant service on that day, and (d) any other amount if and to the extent that the Secretary of State has determined that it is to be treated as salary.

• (2) In paragraph (2) of article 4 for “(1)(b)” there is substituted “(1)(d)”.

3

For article 31 there is substituted the following article—

(31) (1) —(1) Where a person is entitled to guaranteed income payment, survivor's guaranteed income payment or child's payment for any period during which he is also entitled to— (a) a pension under the AFPS 1975 or the AFPS 2005 (“a pension”); (b) a payment under the Armed Forces Early Departure Payments Scheme Order 2005 (“a payment”); (c) a pension under the the FTRSPS 2010, the NRPSPS or the RFPS 2005(“a reserve forces pension”); or (d) benefit under an occupational pension scheme or a personal pension scheme in respect of the same injury or death for which guaranteed income payment, survivor's guaranteed income payment or child's payment is paid (“a civilian pension”) the guaranteed income payment, survivor's guaranteed income payment or child's payment as the case may be is reduced in accordance with paragraphs (2) and (3). (2) Where a person is entitled to a guaranteed income payment for any period during which he is also entitled to— (a) a pension or a reserve forces pension which is not an invaliding or ill-health pension paid for the same injury for which the guaranteed income payment is paid, a payment, or a civilian pension, then the amount of the guaranteed income payment is reduced by 75 per cent. of the amount of that pension, reserve forces pension, payment or civilian pension; (b) a pension or a reserve forces pension which is an invaliding or ill-health pension paid for the same injury for which the guaranteed income payment is paid, then the amount of guaranteed income payment is reduced by the full amount of the invaliding or ill-health pension. (3) Where a person is entitled to a survivor's guaranteed income payment or a child's payment for any period during which he is also entitled to a pension, reserve forces pension or civilian pension, then the amount of the survivor's guaranteed income payment or child's payment is reduced by 75 per cent. of the amount of that pension, reserve forces pension or civilian pension. (4) In this article— (a) any reference to a pension, payment, reserve forces pension, civilian pension, invaliding pension or ill-health pension means the gross amount , irrespective of any commutation, of that pension, payment, reserve forces pension, civilian pension, invaliding pension or ill-health pension; (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (d) “occupational pension scheme” has the meaning given in section 1 of the Pension Schemes Act 1993 ; (e) “personal pension scheme” means a personal pension scheme within the meaning of section 1 of the Pension Schemes Act 1993 which has been approved under Chapter IV of Part XIV of the Income and Corporation Taxes Act 1988 or provisionally approved under section 655(5) of that Act.

SCHEDULE 3 — MODIFICATIONS FOR GURKHAS

1

• (1) This Schedule sets out modifications of this Order that apply in relation to Gurkhas or former Gurkhas who—

• (a) are not members of the AFPS 1975 or the AFPS 2005 on the relevant date, and

• (b) in the case of former Gurkhas who have died before the relevant date, are not treated as if they were such members in connection with making payments of benefits to their surviving spouses, civil partners or other dependants.

• (2) The relevant date is—

• (a) for the purposes of article 16—

• (i) in the case of a Gurkha or former Gurkha who is in service on or after 1st October 2007, the day on which that service ends, and

• (ii) in the case of a Gurkha or former Gurkha whose service ended before 1st October 2007, the day after the option closing date, and

• (b) for the purposes of article 26 or 28—

• (i) in the case of a Gurkha or former Gurkha who is in service on or after 1st October 2007, the day of death,

• (ii) in the case of a Gurkha or former Gurkha whose service ended before 1st October 2007 and who died on or before the day after the option closing date, that day, and

• (iii) in the case of a Gurkha or former Gurkha whose service ended before 1st October 2007 and who has died later than the day after the option closing date, the date of death.

• (3) In paragraph (2) “the option closing date” means 31st January 2008 or, if the last date on which an option under rule L.3 of the AFPS 2005 may be exercised is later, that last date.

2

In the definition of “relevant factor” in articles 16(5), 26(3) and 28(6) for the words from “column (b)” to “column (a)” substitute “ the second column of the table set out in Schedule 3 in relation to the relevant age specified in the first column ” .

3

For article 31 substitute—

(31) (1) This article applies if— (a) a Gurkha within Schedule 3 to this Order is discharged, or (b) a Gurkha or former Gurkha within that Schedule dies. (2) If a former Gurkha is entitled to a guaranteed income payment for any period during which the former Gurkha is also entitled to a pension by virtue of the Gurkha Pension Scheme, guaranteed income payment is reduced by the amount of that pension. (3) If a person who is the surviving spouse, civil partner or other adult dependant of the Gurkha or former Gurkha is entitled to a survivor's guaranteed income payment for any period during which the person is also entitled to a family pension in respect of the deceased Gurkha or former Gurkha by virtue of the Gurkha Pension Scheme, survivor's guaranteed income payment is reduced by the amount of that pension (4) Paragraphs (5) and (6) apply if the Gurkha or former Gurkha dies— (a) without leaving a surviving spouse, civil partner or surviving adult dependant but leaving one or more eligible children, and (b) a family pension is payable as a result of the death. (5) If there is only one eligible child, the child's payment is reduced by the amount of the family pension. (6) If there are two or more eligible children, the child's payment paid to or in respect of each eligible child is reduced by the amount of the family pension, divided by the number of eligible children.

4

For article 31 there is substituted—

(31) (1) —(1) This article applies where a Gurkha is discharged into Nepal or where his surviving spouse or surviving adult dependant or any child of his who is an eligible child resides in Nepal. (2) Where a former Gurkha is entitled to a guaranteed income payment for any period during which he is also entitled to a pension by virtue of the pension arrangements applicable to Gurkhas as a result of their service, guaranteed income payment is reduced by the amount of that pension. (3) Where the surviving spouse or surviving adult dependant of a Gurkha or former Gurkha is entitled to a survivor's guaranteed income payment for any period during which he is also entitled to a family pension in respect of the deceased Gurkha by virtue of the pension arrangements applicable to Gurkhas as a result of their service, survivor's guaranteed income payment is reduced by the amount of that pension. (4) Where a Gurkha or former Gurkha dies— (a) without leaving a surviving spouse or surviving adult dependant but leaves at least one eligible child; and (b) a family pension is payable as a result of his death the total amount of child's payment payable to his eligible children shall be reduced by the amount of the family pension. (5) Where paragraph (4) applies— (a) the amount of the family pension shall be divided by the number of eligible children; and (b) the child's payment paid to or in respect of each eligible child shall be reduced by the amount resulting from the division

SCHEDULE 4 — THE TARIFF