Defence IssuesDECISIONS ON ATTRIBUTABILITY
| Am I Affected? |
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| Use the pop-up Attributable Benefits questionnaire to find out if you are affected by the Appeal Court's ruling and the MOD's subsequent review of Attributable Benefits. |
Introduction
Enhanced attributable benefits are paid to Service Persons where the injury or condition is caused or made worse by Service. Similarly attributable benefits are paid to widows, widowers and in certain cases to partners of deceased Service Personnel where the death was caused or hastened by Service. These benefits are paid under three schemes; pension benefits under the Armed Forces Pension Scheme 75 (AFPS) or Reserve Forces (Attributable Benefits etc) Regulations (RFAB), and compensation benefits under the War Pensions Scheme (WPS). The three schemes have separate legislation and rules for paying benefits and are administered by two MOD agencies; the AFPS by the Armed Forces Personnel Administration Agency (AFPAA) and the WPS by the Veterans Agency (VA).
- Armed Forces Pension Scheme Attributable Benefits
- Benefits from the AFPS, are payable if a member of the Armed Forces is invalided out of Service, provided that the injury or illness that resulted in discharge was caused or made significantly worse by service in the Armed Forces. In this case a Service Attributable Pension (SAP) would be awarded instead of a Service Invaliding Pension (SIP).
- AFPS 75 Attributable benefits can only be awarded at the time of invaliding from the Armed Forces. They are available even if you have opted out of the AFPS or are on gratuity earning terms. Dependants benefits are also payable where the death is caused or hastened by Service.
- From 6 April 2005 the new Armed Forces Compensation Scheme (AFCS) will apply to those whose injury or illness was caused or arose before this date, instead of the arrangements under the WPS, AFPS 75 and RFAB.
- AFPS 75 Attributable benefits can only be awarded at the time of invaliding from the Armed Forces. They are available even if you have opted out of the AFPS or are on gratuity earning terms. Dependants benefits are also payable where the death is caused or hastened by Service.
- Reserve Forces Attributable Benefits
- Benefits from the RFAB, are payable if an individual is invalided out of a Reserve Force, provided that the injury or illness that resulted in discharge was caused or made significantly worse by service in the Reserve Force. Dependants benefits are also payable where the death is caused or hastened by Service. The RFAB acts as a minimum guarantee scheme and takes into account benefits paid by the individual personal or civilian occupational pension scheme.
- War Pension Scheme Benefits
- Benefits are paid under the WPS where the injury or illness has been caused or made worse by service in the Armed Forces. If you are not invalided out of Service you may still receive WPS benefits. WPS benefits also may be paid to a former member of the Armed Forces who was not a member of the AFPS. Dependants benefits are also payable where the death is caused or hastened by Service.
Background
On 19 November 2003 the Court of Appeal ruled that the Ministry Of Defence (MOD) did not have the right to take a second decision on whether a death, injury or illness was due to service (we call this ‘attributable’) for the purposes of awarding pension benefits under the Armed Forces Pension Scheme (AFPS). It had to accept the decision taken for the purpose of making awards under the War Pension Scheme (WPS). The MOD has accepted this ruling. This means that a number of ex-Service personnel invalided from service on or after 31 March 1973, or the widows and widowers of members whose deaths were caused by service, will have not received the awards under the AFPS to which they are entitled.
As a result, the MOD is now reviewing cases where an injury, illness or death was found attributable under the WPS (by the Veterans Agency (VA) which uses a "beyond reasonable doubt" standard of proof in favour of the claimant) but not under the AFPS (by the Armed Forces Personnel Administration Agency (AFPAA) which uses the "balance of probabilities" standard of proof).
In some cases, individuals may be owed money as a result of a failure to pay an AFPS pension, or enhanced pension benefits where illness, injury or death were recognised by the VA as due to service.
How do I know if I am affected?
You are only affected if you received a War Disablement Pension and you were also invalided (medically discharged) from Service for an injury or illness that arose before 1 April 2004. For the Royal Navy and Royal Marines you are only affected if you were invalided before 1 April 1999. Similarly as a widow(er) you are only affected if you are in receipt of a War Widows Pension and your spouse died before 1 April 2004.
Table 1 below highlights those sections of the Armed Forces where on the basis of an examination of a sample of cases from all three Services across the period of error, pension benefits are thought to be at risk. But we cannot be sure that errors were not made outside of these. As can be seen, the table is divided between different time periods which take into account the scheme rules at that time.
| Service | Date of Discharge | Risk |
|---|---|---|
| RN | 31 March 1973 – 31 March 1999 | We currently assess the risk of being affected as low. |
| Post 1 April 1999 | RN Officers and other ranks – not affected.RN widows and dependent children – high risk. | |
| Army | 31 March 1973 – 31 December 1999 | We currently assess the risk of being affected as low. |
| 1 January 2000 – Present day | We currently assess the risk of being affected as high. | |
| RAF | 31 March 1973 – 1994 | We currently assess the risk of being affected as low. |
| 1994 – Present day | We currently assess the risk of being affected as high. |
What action should I take if I am affected?
You should follow the instructions in the pop-up Attributable Benefits questionnaire to establish if you are affected. You do not need to take any action at present as we have identified the "at-risk" groups and are reviewing all these areas. If your pension benefits are affected we will write to you with details of the changes. However you may submit a claim if you believe that you are affected and consider that you are outside the sections of the Armed Forces we believe are at risk. You will receive an acknowledgement that your claim has been received.
We hope to complete the review of cases at risk by April 2006. An online copy of the application form is available
How can I find out if I am affected and eligible for benefits?
By using the pop-up Attributable Benefits questionnaire you should be able to establish whether you as an ex-service person, a widow or widower, or as a beneficiary of the will of either of these groups, may be eligible for enhanced attributable benefits under the AFPS.
If you are unable to answer any of the questions, then you are advised to either contact the appropriate Helpline, or alternatively, complete the Claim Form so the pension-awarding branch can check your details. Details of Helpline numbers and where to send your completed form are given below.
If you are a widow(er), you should follow both charts as you may be eligible for additional benefits in your own right, or benefits which should have been paid to your late spouse, or both.
Frequently Asked Questions
What action will the Department now take, and will this affect my pension?
The Pensions Ombudsman’s ruling will have implications for a large number of post-1973 pensioners whose invaliding conditions were accepted by the Veterans Agency, under the War Pension Scheme, as attributable to service, but not by the Armed Forces Pension Scheme because of the different standards of proof. The Department has been undertaking the necessary steps to identify all those potentially affected and examine their cases to see if they were eligible for an enhanced attributable pension and gratuity, including back-dating.
Not all attributable pensions since 1973 are affected. We know that for extended periods some of the Services operated on the basis of accepting the Veterans Agency’s decision on attributability.
Will I be affected?
The error will only affect post-1973 pensioners who were medically discharged from the Armed Forces and received a War Disablement Pension, for the medical condition leading to discharge, under the War Pensions Scheme but who are not in receipt of an attributable pension under the AFPS. Post-1973 widows and widowers1 of Service persons whose death was accepted as attributable to service by the Veterans Agency and are in receipt of a War Widow(er)s Pension but who are not in receipt of an attributable widows’ or widowers’ pension under the AFPS may also be affected.
I am a Serviceperson’s widow(er), am I still eligible?
Payments will be made to a widow who was married to the Serviceman whilst he was serving. Where the marriage took place after leaving the Services, the widowwill only be eligible if her husband had completed any Service on or after 6 April 1978. Widowers will have a similar entitlement, but only if their wife completed any Service on or after 1 October 1987.
Will the MOD backdate the corrected pensions?
Yes.
Will the MOD backdate the corrected pensions to the date of my spouse’s death?
Yes, provided that the VA award a War Widow(er)’s Pension from that date. If you received a WWP from a later date your AFPS attributable widows pension is paid at that point.
How long will it take to make the payments?
We have already identified and awarded attributable benefits to those who served in the RN/RAF, including widow(er)s backpayments. The estimate for completing backpayments for Army cases is the end of April 2006.
Will the Department pay compensation for the late payments of pensions?
Yes. Where the error occurred within the last six years, the interest will be based on the Government’s usual formula of simple interest. Where the error occurred beyond six years, interest will be based on a formula using the rate of the Retail Price Index plus 2% compounded.
Will my pension under the War Pension Scheme be affected?
No. The judgement only affects the occupational Armed Forces pension schemes.
Will the MOD be amending the standard of proof for the AFPS / WPS?
It has been MoD policy for some years that the AFPS should take separate decisions on attributability using a balance of probabilities standard of proof. Given the Court of Appeal decision, the MOD decided to change the rules to re-establish this intent from 1 April 2004. This will only affect future claims and the standard of proof used by the War Pension Scheme will not be amended.
How will this change of the AFPS rules affect claims dating from before the Court of Appeal’s decision?
The change in the rules will not affect those whose injuries or death arose before 1 April 2004.
What action is the Department taking on those cases where the decision on awards has been held pending the outcome of this case?
These cases will be considered as quickly as possible, on the basis of the War Pension Scheme decision on attributability.
Last Updated: 3 Aug 05