Commencing Dates of Awards

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Chapter 7

Commencing Dates of Awards

NORMAL COMMENCEMENT DATE OF AWARDS Award of pension following claim or review
7.1 By article 46 of the SPO 2006, the commencing date of awards is governed by Schedule 3. Schedule 3 provides for circumstances (described below) in which an award can be backdated, but in all other cases the earliest date on which an award following the termination of service of a member, or a death benefit following the death of a member, can commence is the latest of the following:

(i) in the case of a claim, the date of claim;¹

(ii) in the case of an application for a review by the claimant, the date of the review application;²

(iii) in the case of a review instigated by the Secretary of State,³the date when the review took place.⁴

(iv) the date of termination of service where a claim or review application or a claim for a death benefit has been made prior to that date.⁵

However, if a claim or an application for a review is made within 3 months of the date of termination of service or death, or within 3 months of the date of notification of a decision on a claim or on a review application, the award is backdated so that the commencement date of the award is the date of termination

¹SPO 2006, Sch 3, para 1(1) and (2)(b).

²SPO 2006, Sch 3, para 1(1) and (2)(c).

³See para 6.11.

⁴SPO 2006, Sch 3, para 1(6).

⁵SPO 2006, Sch 3, para 1(1) and (2)(a). This appears to duplicate the effect of SPO 2006, art 5(2).

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of service or death, or the date of notification of the earlier decision, as the case may be.⁶

Award of pension without claim
7.2 It follows that, where an initial award is made without a claim, it is effective from the date of termination of service or death. This is made explicit by paragraph 9 of Schedule 3 to the SPO 2006, subject to a qualification which no longer has any practical effect.⁷

BACKDATING – PREVIOUS DISCRETIONARY POWERS
7.3 Prior to 1997, there was a general discretionary power to backdate awards,⁸which the Secretary of State exercised by backdating awards for up to 6 years if a decision to reject a claim was considered to have been reasonable on the basis of the evidence available to the decision-maker at the time when the decision was made.⁹The practice under the previous discretionary powers has now been codified, although the codified provisions have themselves been amended.

Official error
7.4 Paragraph 1(7) of Schedule 3 to the SPO 2006¹⁰provides:

⁶This appears to be the intention of SPO 2006, Sch 3, para 1(3), (4) and (5), but the wording of these provisions is very unclear. (In FS v Secretary of State for Defence (WP) [2017] UKUT 0194 (AAC), Judge Rowland expressed the view that this footnote was a ‘gross understatement’, and added: ‘... one can interpret those subparagraphs only by imagining what the legislator might have wished to achieve, which is not an altogether satisfactory approach to statutory construction’.)

⁷I.e. that backdating could be deferred to the date 3 years before the claimant’s service records were delivered to the Secretary of State by the Secretary of State for Defence. This provision reflected the position until 2001, in which claims for war pension were administered by the Department of Health and Social Security and a claimant’s service records therefore had to be sent by the Ministry of Defence to the social security authorities to enable a war pension claim to be determined. Since war pension claims are now administered by DBS Veterans UK, which forms part of the Ministry of Defence, a claimant’s service records are now always in the possession of the Ministry of Defence, so that the provision is now obsolete (see Chapter 23).

⁸The legislative history of these provisions is described in detail in R(AF) 3/08.

⁹That policy was held to be lawful in R v Secretary of State for Social Security ex parte Foe [1996]
COD 505.

¹⁰Introduced in its present form by the Naval, Military and Air Forces Etc. (Disablement and Death)
Service Pensions Amendment Order 2001 (SI 2001/409).

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(7) Where an award is reviewed as a result of a decision (‘the original decision’) which arose from an official error, the reviewed decision shall take effect from the date of the original decision and for this purpose ‘official error’ means an error made by the Secretary of State or any officer of his carrying out functions in connection with war pensions, defence, or foreign and commonwealth affairs, to which no other person materially contributed, including reliance on erroneous medical advice but excluding any error of law which is only shown to have been an error by virtue of a subsequent decision of a court.^[11]

7.5 In CAF/1759/2007,¹²Judge Jacobs held that this provision does not create a separate review ground, but deals with the consequences of the review of an award which has already taken place. In R(AF) 5/07, Judge Bano held that in order to apply the backdating provisions in Schedule 3 to the SPO 2006 for the purpose of determining the commencement date of a reviewed decision,¹³it is

necessary to identify the factual basis of the review. Since paragraph 6(1) of Schedule 3 makes specific provision for cases in which there has been a development in medical opinion since the decision under review was made, the judge held that paragraph 1(7) of Schedule 3 must be applied on the basis of medical opinion at the time when the original decision was made. In accordance with cases concerning similar provisions in earlier social security legislation, Judge Bano held that there was an official error only if the original decision-maker had made a clear and obvious mistake:

... the question of whether the refusal of an award ... resulted from an official error must be decided on the basis of medical knowledge as it was at that time. It will not be sufficient to show merely that there was a misdiagnosis of the appellant’s condition. Applying the standards to be expected of a reasonably competent medical practitioner in the light of psychiatric knowledge [at the time when the decision was made], it will be necessary to demonstrate some clear and obvious mistake which resulted in the decision refusing entitlement. For that purpose, the relevant issue will be not so much the actual terms of the appellant’s diagnosis, but whether the authorities were correct in excluding conditions of service as a factor in the claimant’s disablement.

¹¹It is not clear whether the term ‘court’ includes the Upper Tribunal. Tribunals, Courts and

Enforcement Act 2007, s 3(5) provides that the Upper Tribunal is to be a ‘superior court of record’, and SPO 2006, Sch 3, para 7 appears to use the term ‘decision of the court’ to include the decision of a Commissioner (the Social Security Commissioners were the statutory predecessors of the Upper Tribunal).

¹²Unreported.

¹³As Judge Jacobs pointed out in CAF/1759/2007, unreported, it would have been more consistent with the language of SPO 2006, art 44 if Sch 3, para 1(7) had referred to the ‘reviewed decision’ as the ‘revising’ or ‘revised’ decision.

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Contribution to error by another...