Claiming Armed Forces Compensation

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Chapter 13

Claiming Armed Forces Compensation

WHO CAN CLAIM
13.1 The Armed Forces Compensation Scheme covers all serving and former members of the regular and reserve armed forces.¹Unlike war pensions claims, claims for armed forces compensation can be made while a claimant is still serving in the forces, but there are time limits for making a claim. The Armed Forces Compensation Scheme applies to:

(i) injury caused wholly or partly by service where the cause of the injury occurred on or after 6 April 2005, provided that service was the predominant cause of the injury;²

(ii) injury made worse by service if the conditions specified in article 9 of the AFCS 2011 are satisfied³and service on or after 6 April 2005 was the predominant cause⁴of the worsening of the injury;

(iii) death caused wholly or partly by service if the conditions in article 10 of the AFCS 2011 are satisfied⁵and the cause of death occurred on or after 6 April 2005.

‘Spanning’ cases
13.2 In cases where a claimant was in service on 6 April 2005, and a claim is made on the basis of a medical condition which existed both before and after that date, it may be necessary to determine whether the claim should be dealt with as a war pensions or as an armed forces compensation claim. Although such cases

¹See the definitions of ‘member’ and ‘former member’ in AFCS 2011, art 2.

²See Chapter 14.

³See para 14.12.

⁴See para 14.2.

⁵See para 14.19.

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might be expected to be in decline in view of the length of time since the introduction of the Armed Forces Compensation Scheme, in its Fourth Report⁶

the Independent Medical Expert Group noted an increase in claims by personnel with spanning service, particularly in respect of hearing loss.

13.3 Article 43(2) of the AFCS 2011 allows a claim under the SPO 2006 to be treated as an Armed Forces Compensation Scheme claim if it was made by a claimant who was in service on or after 6 April 2005, or by a surviving spouse, civil partner, or adult dependant of such a claimant. Under the AFCS 2005, a claim by a person who was injured by service prior to 6 April 2005 and who was still in service at that date had, in addition, to be considered as a claim for injury made worse by service under the Armed Forces Compensation Scheme, even if an award of a war pension was made. The Boyce Review recommended the abolition of this requirement,⁷and it has not been included in the AFCS 2011. However, it is still open to a claimant to ask for a condition which existed prior to April 2005 to be treated as a claim for injury made worse by service under the AFCS 2011.

13.4 Since a war pensions claim can be made only on or after the termination of service⁸but an Armed Forces Compensation Scheme claim can be made during service, the SPO 2006 was amended on the introduction of the Scheme so as to prevent claimants who had already received an award under the Scheme from also receiving a war pensions award for the same injury after their service ended.⁹

However, the AFCS 2011 did not contain any corresponding provisions preventing an award of an Armed Forces Compensation Scheme benefit for injury or death in respect of which a claimant was entitled to a war pension, and in JN v Secretary of State for Defence (AFCS),¹⁰Judge Mesher held that there could be an award under both Schemes if the Armed Forces Compensation Scheme conditions of entitlement were met in respect of a condition for which the claimant was also entitled to a war pension. The Armed Forces Compensation Scheme was therefore amended with effect from 7 April 2014¹¹by the addition of article 12(2) of the AFCS 2011, which provides that where a person is in receipt of any form of war pension under the SPO 2006 in respect of disablement or death, that disablement or death shall not be accepted as an injury or death caused (wholly or partly) by

⁶Independent Medical Expert Group, Report and Recommendations on Medical and Scientific Aspects of the Armed Forces Compensation Scheme (Ministry of Defence, December 2017). See para 12.12.

⁷Boyce Review, para 2.102.

⁸See para 2.2.

⁹SPO 2006, arts 40(2) and 41(2).

¹⁰[2012] UKUT 479 (AAC).

¹¹By Armed Forces and Reserve Forces (Compensation Scheme) (Amendment) Order 2014
(SI 2014/412), arts 1(1) and 2(3).

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service for the purposes of the AFCS 2011. The 2014 amendment was replaced by another amendment with similar effect in 2017.¹²

13.5 In order to support medically sound decision making in ‘spanning’ cases,

the Fourth Report of the Independent Medical Expert Group suggested that in such cases the following facts should be determined:¹³

(i) The service dates for all periods of service from initial entry until final discharge.

(ii) The duration of service periods, pre- and post-6 April 2005.
(iii) What is claimed? What is the contended service link, i.e. event, exposure, behaviour? Is it pre- or post-6 April 2005?

(iv) If a physical or mental disorder as opposed to an incident-related injury is claimed, is there evidence of when the disorder came into existence, its date of clinical onset or when the person first sought medical advice?

(v) What are the claimant’s employability gradings and dates over the total service period?

13.6 Since it is unlikely (although not impossible) that an injury was causally related to events occurring both before and after 6 April 2005, an injury already existing on that date is more likely to have been predominantly worsened, rather than predominantly caused, by post-6 April 2005 service. In such cases, entitlement under the Armed Forces Compensation Scheme can be excluded if it is apparent that one of the conditions of entitlement for an award on the basis of worsening, for example, continual downgrading until the end of service, is not satisfied.¹⁴

MAKING A CLAIM UNDER THE ARMED FORCES COMPENSATION SCHEME
Claim a condition of entitlement
13.7 Under articles 43 and 44 of the AFCS 2011, unless one of the specified exceptions applies, it is a condition of entitlement to any Armed Forces

¹²By Armed Forces and Reserve Forces (Compensation Scheme) (Amendment) Order 2017
(SI 2017/247), art 4.

¹³Independent Medical Expert Group, Report and Recommendations on Medical and Scientific Aspects of the Armed Forces Compensation Scheme (Ministry of Defence, December 2017)...