Entitlement to War Pension - General Principles
| Author | Andrew Bano |
| Pages | 15-25 |
Chapter 3
Entitlement to War Pension – General Principles
DISABLEMENT OR DEATH ‘DUE TO SERVICE’
3.1 In order to be entitled to any war pension benefits, a claimant must have suffered disablement or death which is ‘due to service’. Articles 40 and 41 of the SPO 2006 prescribe the conditions and burden and standard of proof for establishing entitlement, which depend on whether a claim has been made or death has occurred before (article 40) or after (article 41) the end of the period of 7 years from the termination of service.
3.2 Under both articles 40 and 41 of the SPO 2006, disablement must be accepted as ‘due to service’ if it is due to an injury which:
(i) is attributable to service; or
(ii) existed before, or arose during, service and has been and remains aggravated thereby.
Death must be accepted as ‘due to service’ if it was ‘due to or hastened by’ (article 40) or ‘due to or substantially hastened by’ (article 41):
(i) an injury which was attributable to service; or
(ii) the aggravation by service of an injury which existed before or arose during service.
Initial burden on the claimant – the Royston principle
3.3 In Royston v Minister of Pensions,
16 War Pensions and Armed Forces Compensation – Law and Practice
disablement that is claimed to have been caused by service lies on the claimant. Therefore, under both articles 40 and 41, the burden of establishing the existence of disablement or the fact of death lies on the claimant. However, under article 40 the onus is then on the Secretary of State to show beyond reasonable doubt that the disablement or death was not due to an injury that was either attributable to, or aggravated by, service: there is no legal burden on the claimant to provide reliable evidence supporting the link between the disablement and service. On the other hand, under article 41 the onus is on the claimant to provide reliable evidence supporting that link but, if the claimant does so, he or she is entitled to the benefit of any reasonable doubt. Subject to the Royston principle, under article 40 the onus is on the Secretary of State to show beyond reasonable doubt that injury was neither attributable to, nor aggravated by, service. Under article 41, there is an initial burden on the claimant to show that disablement or death was due to service, but article 41(5) provides that the claimant is entitled to the benefit of any reasonable doubt in deciding whether the conditions of entitlement are satisfied.
3.4 In Secretary of State for Defence v NM (WP),
The difference between article 40 and article 41 is therefore solely as to the burden of proof. Where article 40 applies, it is for the Secretary of State to exclude any reasonable doubt or, in other words, to prove that the only reasonable possibility is that the disablement is not due to service. Where article 41 applies, it is for the claimant to prove that there is a reasonable doubt, or in other words that there is a reasonable possibility that the disablement is due to service. In many cases, which of articles 40 and 41 applies may have little effect on the outcome. However, the burden of proof is particularly important where there is no, or insufficient reliable evidence on an issue despite the parties’ efforts to provide what they can. In such a case, it determines ‘who should bear the consequences of the collective ignorance’ (see Kerr at [66][3]).
‘DISABLEMENT’ AND ‘INJURY’
3.5 ‘Disablement’ is defined in paragraph 27 of Schedule 6 to the SPO 2006 as ‘physical or mental injury or damage or loss of physical or mental capacity’, and ‘injury’ is defined in paragraph 32 of Schedule 6 as ‘including wound or disease’ (subject to exclusions in cases involving the use of alcohol or tobacco).
The term ‘disablement’ therefore covers virtually all forms of physical or mental impairment, including hysterical and neurotic conditions, even if the disablement has not caused any loss of capacity for work or the enjoyment of life, although in such a case a nil assessment of the degree of disablement will be appropriate (see Harris v Minister of Pensions
3.6 Articles 40 and 41 of the SPO 2006 refer to disablement which is ‘due to an injury’, but the definition of disablement in paragraph 27 of Schedule 6 also includes...
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