The Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions (Amendment) Order 2008

Made: 12th March 2008

Laid before Parliament: 13th March 2008

Coming into force in accordance with article 2

At the Court at Buckingham Palace, the 12th day of March 2008Present,The Queen’s Most Excellent Majesty in Council

ACCORDINGLY, Her Majesty, in exercise of the powers conferred upon Her by sections 12(1) and 24(3) of the Social Security (Miscellaneous Provisions) Act 1977², and of all other powers enabling Her to do so, is pleased, by and with the advice of Her Privy Council, to order as follows:—

Citation and interpretation

1

• (1) This Order may be cited as the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions (Amendment) Order 2008.

• (2) In this Order, “the principal Order” means the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006, and a reference to a numbered article, Part, Table or Schedule is a reference to the article, Part, Table or Schedule in the principal Order which bears that number.

Amendments to the principal Order and commencement

2

• (1) The amendments to the principal Order contained in Schedule 1 to this Order shall have effect in accordance with this article.

• (2) Subject to the following provisions of this article the amendments contained in—

• (a) Part 1 of Schedule 1 shall come into force on 7th April 2008;

• (b) Part 2 of Schedule 1 shall come into force on the operative day.

• (3) Paragraphs 1, 3, 4, 5, 6 and 9 of Part 1 of Schedule 1 to this Order (which amend articles 7, 27, 33, 40, 44 and Schedule 3) shall apply for the purposes of decisions made on or after 7th April 2008.

• (4) Paragraphs 10 and 11 of Part 2 of Schedule 1(which amend article 10) shall apply—

• (a) for the purposes of decisions made under article 10 of the principal Order; and

• (b) to any member of the armed forces in receipt of severe disablement occupational allowance;

on or after the operative day.

• (5) Paragraphs 12 and 13 of Part 2 of Schedule 1(which amend articles 50 and 56) shall apply for the purposes of decisions to adjust or abate a pension or gratuity made on or after the operative day.

• (6) In this article “operative day” means the day that section 1 of the Welfare Reform Act 2007³ comes into force.

SCHEDULE 1

PART 1

Amendment of article 7 (gratuity for minor disablement)

1

In article 7(2)(a) for “disablement was of uncertain duration;” substitute “duration of the assessed disablement was temporary;”.

Amendment of article 23 (pensions to surviving spouses and surviving civil partners)

2

In article 23(2) for “£70.88” substitute “£73.64”.

Amendment of article 27 (temporary allowances)

3

In article 27(1) omit paragraph (a).

Amendment of article 33 (relationships subsequent to the award of pension)

4

In article 33(3) after “who died or whose service terminated” omit “on or”.

Amendment of article 40 (entitlement where a claim is made in respect of a disablement, or death occurs, not later than 7 years after the termination of service)

5

In article 40(3) for “provision” substitute “provisions”.

Amendment of article 44 (review of decisions, assessments and awards)

6

In article 44(1)—

• (a) after “the provisions of paragraph (8)” omit “, any decision”;

• (b) in sub-paragraph (a) before “accepting or rejecting” insert “any decision”.

Amendment of Schedule 1

7

In Schedule 1 (disablement due to service in the armed forces)—

• (a) for the Table in Part II substitute the Table set out in Schedule 2 to this Order;

• (b) for Tables 1 and 2 in Part III substitute Tables 1 and 2 set out in Schedule 3 to this Order; and

• (c) for the Table in Part IV substitute the Table set out in Schedule 4 to this Order.

Amendment of Schedule 2

8

In Schedule 2 (death due to service in the armed forces)—

• (a) for Tables 1, 2, 3, 4 and 5 of Part II substitute Tables 1, 2, 3, 4 and 5 set out in Schedule 5 to this Order; and

• (b) for the Table in Part III substitute the Table set out in Schedule 6 to this Order.

Amendment of Schedule 3

9

In Schedule 3 (commencing date of awards)—

• (a) in paragraph 1(2)(a) for “Part IV” substitute “Part III”;

• (b) in paragraph 3 for “High Court” substitute “Social Security Commissioners”.

PART 2

Amendment of article 10 (severe disablement occupational allowance)

10

For article 10(2) substitute—

(2) Paragraph (1) does not apply during any period in respect of which the member of the armed forces is— (a) eligible for an award under article 12(1)(a); (b) in receipt of any personal benefit under Part 2 or Part 3 of the Social Security Contributions and Benefits Act 1992⁴ or the corresponding provisions of the Social Security Contributions and Benefits (Northern Ireland) Act 1992⁵; (c) in receipt of employment and support contributory allowance under Part 1 of the Welfare Reform Act 2007⁶; or (d) in receipt of any benefits similar to a personal benefit under the law of any place outside the United Kingdom which in the opinion of the Secretary of State is analogous to a personal benefit.

11

After article 10(3)(e) insert—

(f) employment and support contributory allowance.

Amendment of article 50 (payment of public claims out of pension)

12

In article 50(3)—

• (a) omit “or” at the end of paragraph (a);

• (b) after paragraph (a) insert—

(aa) employment and support income-related allowance under Part 1 of the Welfare Reform Act 2007; or

Amendment of article 56 (abatement of awards of social security benefits)

13

In article 56(3) after paragraph (e) insert—

(f) Part 1 of the Welfare Reform Act 2007.

SCHEDULE 2 — TABLE TO BE SUBSTITUTED FOR THE TABLE SET OUT AT PART II OF SCHEDULE 1

SCHEDULE 3 — TABLES TO BE SUBSTITUTED FOR TABLES 1 AND 2 SET OUT AT PART III OF SCHEDULE 1

SCHEDULE 4 — TABLE TO BE SUBSTITUTED FOR THE TABLE SET OUT AT PART IV OF SCHEDULE 1

SCHEDULE 5 — TABLES TO BE SUBSTITUTED FOR TABLES 1, 2, 3, 4 AND 5 SET OUT AT PART II OF SCHEDULE 2

SCHEDULE 6 — TABLE TO BE SUBSTITUTED FOR THE TABLE SET OUT AT PART III OF SCHEDULE 2

Signed

Judith Simpson — Clerk of the Privy Council

Explanatory note

(This note is not part of the Order)

EXPLANATORY NOTE

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 gives effect to the amendments in Schedule 1 and makes commencement provisions. The amendments in Part 1 of Schedule 1 come into force on 7th April 2008, and Part 2 of Schedule 1 comes into force on the day that section 1 of the Welfare Reform Act 2007 comes into force.

Paragraphs 1, 3, 4, 5, 6 and 9 of Part 1 of Schedule 1 correct errors in the principal Order which arose during the process of consolidating a number of earlier instruments into the principal Order.

Paragraph 2 of Schedule 1 varies the rate of supplementary pension payable to an entitled surviving spouse or surviving civil partner of a member whose service terminated before 31st March 1973.

Paragraphs 7 and 8 of Part 1 of Schedule 1 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.

Part 2 of Schedule 1 inserts references to the Welfare Reform Act 2007. The Act makes provision for employment and support allowance which will replace incapacity benefit and income support for new claimants.

Paragraphs 10 and 11 amend article 10 and disqualify a pensioner in receipt of employment and support contributory allowance from receiving severe disablement occupational allowance

Paragraph 12 amends article 50, and provides that the Secretary of State may take into account income from employment and support income-related allowance when calculating any arrears of pension. Paragraph 13 amends article 56 and provides that the Secretary of State may take into account income from employment and support allowance when abating arrears of pension.

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

Footnotes