Statutory Instrument 1994 No. 772

The Naval, Military and Air Forces etc. (Disablement and Death) Service Pensions Amendment Order 1994

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1994 No. 772

PENSIONS

The Naval, Military and Air Forces etc. (Disablement and Death) Service Pensions Amendment Order 1994

At the Court at Buckingham Palace, the 15th day of March 1994

Present,

The Queen's Most Excellent Majesty in Council

WHEREAS Her Majesty deems it expedient to amend the Naval, Military and Air Forces etc. (Disablement and Death) Service Pensions Order 1983^[1] and to do so by Order in Council in pursuance of section 12(1) of the Social Security (Miscellaneous Provisions) Act 1977^[2]:

NOW, THEREFORE, Her Majesty, in exercise of the powers conferred by sections 12(1) and 24(3) of the said Act of 1977 and of all other powers enabling Her in that behalf, is pleased, by and with the advice of Her Privy Council to order, and it is hereby ordered, as follows:

Citation, commencement and interpretation
    1.—(1)  This Order may be cited as the Naval, Military and Air Forces etc. (Disablement and Death) Service Pensions Amendment Order 1994 and shall come into force for the purposes of this article, and articles 4 and 5(3) on 28th March 1994 and for all other purposes on 11th April 1994.

    (2)  In this Order, "the principal Order" means the Naval, Military and Air Forces etc. (Disablement and Death) Service Pensions Order 1983.

Amendment of article 18 of the principal Order
    2.    In article 18 of the principal Order (unemployability allowances) in paragraph (2) for the amount "£2,184" there shall be substituted the amount "£2,236".

Amendment of article 67 of the principal Order
    3.    In article 67 of the principal Order (review of decisions, assessments and awards)—
 (a) in paragraphs (1) and (2) for the reference to paragraph "(7)" there shall be substituted the reference "(6A)";
 (b) after paragraph (6) there shall be inserted the following paragraph—
"  (6A)  Subject to the provision in paragraph (7), nothing in this article shallbe taken to authorise the review of any assessment or decision made, given, or upheld by the Pensions Appeal Tribunal under section 8 of the War Pensions (Administrative Provisions) Act 1919^[3] or the Pensions Appeal Tribunals Acts 1943 and 1949^[4]." ; and

 (c) for paragraph (7) there shall be substituted the following paragraph—
"  (7)  Any assessment made, given or upheld by the Pensions Appeal Tribunal under the Pensions Appeal Tribunals Acts 1943 and 1949 may be reviewed and revised by the Secretary of State where he is satisfied by fresh medical evidence of a deterioration in the disablement in respect of which the assessment was made." .

Insertion of articles 67A, 67B and 67C into the principal Order
    4.    After article 67 of the principal Order (review of decisions, assessments and awards) there shall be inserted the following articles—

"Suspension in individual cases Pensions Appeal Tribunal
    67A.—(1)  Where it appears to the Secretary of State that a question arises whetheran appeal ought to be brought against the decision of a Pensions Appeal Tribunal, he may, subject to paragraph (2), direct that payment of a pension or gratuity in accordance with that decision be suspended, in whole or in part, pending the determination of that question on appeal.

    (2)  Where it appears to the Secretary of State that a question arises under paragraph (1), he may only give directions that payment of the pension or gratuity 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 pension or gratuity by virtue of the decision ("the pensioner") is given notice in writing that an application for leave to appeal has been made against that decision.

    (4)  Subject to paragraph (5), where the pensioner has been given notice within the relevant period that an application for leave to appeal against a decision of a Pensions Appeal Tribunal has been made, the suspension may continue until that application for leave to appeal and, where leave has been granted, any subsequent appeal is determined.

    (5)  Where an application for leave to appeal against a decision of a Pensions Appeal Tribunal is made to a Pensions Appeal Tribunal and that application is refused, the suspension shall cease unless the Secretary of State, within a period of 28 days beginning with the date on which notice in writing of the decision of the Pensions Appeal Tribunal refusing leave to appeal is received by him, makes a further application for leave to appeal, and, if he has so applied, the suspension may continue until that application for leave to appeal and any subsequent appeal is determined.

    (6)  Where, on an appeal against a decision of a Pensions Appeal Tribunal, the court remits the matter for rehearing and determination by a Pensions Appeal Tribunal, the appeal is not determined for the purposes of paragraphs (4) and (5) until the matter remitted for rehearing has been determined.

    (7)  A pensioner is to be treated as having been given the notice required by paragraph (3) on the date that it is posted to him at his last known address.

    (8)  In this article—
(a) "appeal" means an appeal under section 6(2) of the Pensions Appeal Tribunals Act 1943^[5];

(b) "application for leave to appeal" means an application for leave to appeal in the proceedings referred to in sub-paragraph (a) above, and, in England and Wales, an application for leave to appeal under Order 101, rule 3 of the Rules of the Supreme Court 1965^[6], in Scotland under rule 285 of the Act of Sederunt (Rules of Court, consolidation and amendment) 1965^[7] or, in Northern Ireland, under Order 101, rule 2 of the Rules of the Supreme Court (Northern Ireland) 1980^[8];

(c) "relevant period" means the period of one month 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 individual cases courts
    67B.—(1)  Where it appears to the Secretary of State that a question arises whether an appeal ought to be brought against the decision of a court, he may, subject to paragraph (2), direct that payment of the pension or gratuity in accordance with that decision be suspended, in whole or in part, pending the determination of that question on appeal.

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

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

    (4)  Where the pensioner has been given 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)  A pensioner is to be treated as having been given the notice required by paragraph (3) on the date that it is posted to him at his last known address.

    (6)  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 sub-paragraph (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
    67C.—(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 pension or gratuity in that case ought to be reviewed,

he may direct that payment of the pension or gratuity 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 67B." .

Amendment of Schedules to the principal Order
    5.—(1)  In Schedule 1 to the principal Order (rates of retired pay, pensions, gratuities and allowances)—
 (a) for the Table in Part II there shall be substituted the Table set out in Schedule 1 to this Order;
 (b) for Tables 1 and 2 of Part III there shall respectively be substituted the Tables set out in Schedules 2 and 3 to this Order; and
 (c) for Part IV there shall be substituted the Part set out in Schedule 4 to this Order.

    (2)  In Schedule 2 to the principal Order (rates of pensions and allowances in respect of death)—
 (a) for Tables 1, 2, 3, 4 and 5 of Part II there shall be substituted the Tables set out in Schedule 5 to this Order;
 (b) for Part III there shall be substituted the Part set out in Schedule 6 to this Order.

    (3)  In Schedule 4 to the principal Order for item 27 of Part II of Schedule 4 there shall be substituted the following item—
    "27.    "injury" includes wound or disease but excludes any injury due to—
(a) the use or effects of tobacco; or

(b) the consumption of alcohol;

except that paragraph (a), in so far as it relates to the use of tobacco, and paragraph (b) above shall not apply where the person suffers from a mental condition which is attributable to service if—
(i) the degree of disablement in respect of that condition has been assessed at 50% or more; and

(ii) he started or continued to use tobacco or to consume or continue to consume alcohol due to that condition:" .

N. H. Nicholls

Clerk of the Privy Council

[1] S.I. 1983/883, as amended by S.I. 1983/1116, 1521, 1984/1154, 1687, 1985/1201, 1986/592, 1987/165, 1988/248, 2248, 1989/156, 1990/250, 1308, 1991/766, 1992/710, 3208 and 1993/598. back

[2] 1977 c. 5. back

[3] 1919 c. 53. back

[4] 1943 c. 39; this Act was amended and modified by the Pensions Appeal Tribunals Act 1949 (c. 12); sub-section (3A) was added to section 1 by the Pensions Appeal Tribunals Act (Modification) Order 1947 (S.I. 1947/1143) and sections 5 and 6 were amended by section 23 of the Chronically Sick and Disabled Persons Act 1970 (c. 44). Section 5 and 6 were also amended by section 16 of the Social Security Act 1980 (c. 30), and section 6 was also amended by section 43 of the Social Security and Housing Benefits Act 1982 (c. 24). back

[5] 1943 c. 39. Section 6(2) has been amended as it applies to Northern Ireland by the Judicature (Northern Ireland) Act 1978 (c. 23), section 122(1), Schedule 5, Part II. back

[6] S.I. 1965/1776. back

[7] S.I. 1965/321. back

[8] S.R. 1980 No. 346. back

Explanatory Note