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Neutral Citation Number:	2009 51
Reported Number:	R(AF)4/09
File Number:	CAF 3934 2007
Appellant:	Secretary of State for Defence
Respondent:	DK
Judge/Commissioner:	Judge E. Jacobs
Date Of Decision:	16/03/2009
Date Added:	30/03/2009
Main Category:	War pensions and armed forces compensation
Main Subcategory:	War pensions - specified decisions
Secondary Category:
Secondary Subcategory:
Notes:	War disablement pension – allowance for lowered standard of occupation – whether to be reduced by amount of Service Attributable Pension The claimant was medically discharged from the Territorial Army in 1984 as a result of lower limb problems. He was awarded a war disablement pension under the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 1983 with a disablement assessed first at 40 per cent and then, from 1992, at 80 per cent. He was also awarded a Service Attributable Pension (SAP), which was payable as part of the armed forces occupational pension scheme under Defence Council Instructions 1981 and 1984 and from 2001 under the Reserve Forces (Attributable Benefits) Etc. Regulations 2001. In 1994, he was awarded an allowance for lowered standard of occupation (ALSO) under the 1983 Order at an amount lower than his SAP. In 2004, the Secretary of State decided on review that the claimant was not entitled to the ALSO as well as his SAP, relying on article 55 of the 1983 Order, which gives the Secretary of State a discretionary power to take compensation into account against any pension or gratuity under that Order. The claimant exercised his right of appeal and the tribunal decided that he was entitled to both the SAP and the ALSO, as the SAP was not “compensation” within the meaning of the Service Pensions Order. The Secretary of State appealed, arguing that the SAP was “compensation” within the definition in article 55(3). Held, allowing the appeal, that: 1. the purpose of article 55 was to prevent the duplication of payments and the identification of a double payment is a justiciable issue. Therefore the tribunal was required to substitute its own decision for that of the Secretary of State rather than merely review the reasonableness of the Secretary of State’s exercise of discretion (R(AF) 3/07 and R(H) 6/06 considered) (paragraphs 12 to 14); 2. the SAP was “compensation” as defined by article 55(3) as it was a periodical payment made to the claimant, was payable in respect of the claimant’s disablement, and was paid under Defence Council Instructions and the 2001 Regulations, which fall within article 55(3)(a)(i), and so the question of the Secretary of State’s exercise of his discretion was an issue on the appeal (paragraph 22); 3. a tribunal must exercise the discretion conferred by the legislation judicially, that is in a way that furthers the purpose of the legislation and is rational, and should have regard to the Secretary of State’s policy and explain any departure from it (R(AF) 3/07 followed) (paragraph 23); 4. it was clear from the terms of the Defence Council Instructions and the 2001 Regulations that the SAP and the ALSO are both paid in respect of reduced earning capacity as a result of service and it was appropriate that article 55 operate to focus payment wherever possible in the occupational scheme and to prevent overlap. In this case the power had been used appropriately to further its purpose (paragraphs 24 to 41).
Decision(s) to Download:	R(AF)_4 09 bv.doc