Injury Benefits

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Chapter 19

Injury Benefits

TYPES OF INJURY BENEFIT
19.1 Article 15(1) of the AFCS 2011 provides for the following injury benefits:

(a) a lump sum;
(b) a supplementary award;
(c) a guaranteed income payment until death; (ca) armed forces independence payment;
(d) a fast payment; and
(e) medical expenses.

LUMP SUM
19.2 All Armed Forces Compensation Scheme injury awards include a lump sum. The amount of the lump sum is the amount specified in column (b) of Table 10 of Schedule 3 to the AFCS 2011 for the tariff level of the relevant descriptor; for example, for an injury described by a level 7 descriptor the lump sum is £92,700. A lump sum must be paid as soon as possible after the award has been made.¹

SUPPLEMENTARY AWARD
19.3 Article 16(5) of the AFCS 2011 provides for a supplementary award to be paid in addition to a lump sum in certain cases where an injury does not necessarily have an impact on a claimant’s earning capacity, but which can

¹AFCS 2011, art 64(1).

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nevertheless have a substantial effect on a person’s functioning or self-confidence.²

A supplementary award of £60,000 is payable in cases of traumatic physical injury which are covered by a tariff descriptor and which result in incontinence of the bowel or bladder or both, impotence, or infertility or physical disablement due to an injury to the external genitalia. A supplementary award can be paid for each of those conditions, but only once for each condition. A supplementary award of £40,000 is payable where an injury results in the loss of one kidney or if treatment for an injury requires a kidney to be removed, but without the development of chronic renal failure.

19.4 Paragraph 2 of Part 2 of Schedule 3 to the AFCS 2011 provides for smaller supplementary awards in the case of certain types of limb, ear and fracture injuries.

CALCULATING LUMP SUM BENEFIT Single descriptor
19.5 If a claimant receives one or more injuries in or arising from a single incident, and the injuries are described by a single descriptor,³the claimant receives the lump sum for the descriptor plus any supplementary award to which the claimant is entitled (the ‘relevant amount’), but the maximum amount that the claimant can receive is the lump sum for a tariff level 1 injury, i.e. currently £570,000.⁴

Multiple descriptors – 100% Guaranteed Income Payment
19.6 If the injury or injuries is/are described by more than one descriptor and the relevant percentage for the claimant’s GIP is 100% (see para 19.16), the claimant receives the total of the relevant amounts (i.e. lump sum plus any supplementary award) for each descriptor, subject however to the current £570,000 maximum.⁵

²AFCS 2011, arts 15(1)(b) and 16(6)(b) and Sch 3, Pt 2.

³AFCS 2011, art 16(1)(c) provides that more than one injury may be described by one descriptor.

⁴AFCS 2011, art 17(2).

⁵AFCS 2011, art 19.

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Body zones
19.7 In order to provide greater compensation for claimants with serious injuries affecting different parts of the body, in some cases the Armed Forces Compensation Scheme allows for the aggregation of compensation by reference to the ‘body zones’ affected by the injuries. The ‘body zone’ method allows each descriptor affecting the same part of the body to be compensated for at the same level, instead of at reducing levels for each successive descriptor.

19.8 Article 20(6) of the AFCS 2011 allocates injuries described by separate descriptors to ‘body zones’, as follows:⁶

(a) ‘head and neck’ which includes injury to the brain, skull, face, jaw, organs of the mouth and nose, cervical bony and spinal structures and thyroid;

(b) ‘torso’ which includes injury to the abdomen, including wall, peritoneum and structural contents, bony pelvis, pelvic floor and structural contents, perineum and external male and female genitalia, bony thorax, chest wall, pleura and structural contents, thoracic, lumbar, sacral and coccygeal bony and spinal structures;

(c) ‘upper and lower limbs’, which includes—

(i) injury to all structures from the shoulder, including scapula and clavicle, to the tips of hand digits (upper limbs);

(ii) injury to the buttocks and groin, and from the head of the femur to the tips of toes (lower limbs);

(d) ‘senses’ which means an injury which is described by a descriptor in Table 7^[7]

of the tariff;
(e) ‘mental health’ which means an injury which is described by a descriptor in Table 3^[8] of the tariff.

Where a descriptor affects more than one body zone, it is allocated to the body zone predominantly affected by the injury.⁹In the case of burns for which there is a descriptor in Table 1, the descriptor is allocated to the body zone that has the highest percentage of affected surface area.¹⁰

⁶Each body zone includes associated nerves, arteries, veins and lymphatic structures, AFCS 2011, art 20(7).

⁷AFCS 2011, Sch 3, Table 7.

⁸AFCS 2011, Sch 3, Table 3.

⁹AFCS 2011, art 20(4).

¹⁰AFCS 2011, art 20(5).

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19.9 The ‘body zone’ method of assessing compensation can be used if the following conditions are satisfied:¹¹

(i) one or more injuries sustained in or arising from a single incident gives rise to more than one descriptor;

(ii) the descriptors relate to two or more body zones;
(iii) at least one descriptor gives rise to an entitlement within tariff levels 1 to 11 in each of two or more body zones;

(iv) the relevant percentage for the claimant’s GIP is less than 100%.¹²

19.10 Using the ‘body zone’ method, the highest relevant amount for each body zone is calculated in accordance with article 18. The body zone with the highest relevant amount then becomes the ‘first body zone’; the body zone with the next highest relevant amount becomes the ‘second body zone’, and so on.¹³

Where the lump sum is the same for two body zones, one is treated as the higher and the other as the lower.¹⁴The amounts payable in respect of each descriptor are prescribed percentages of the relevant amount (lump sum plus supplementary award), depending on the ranking of the body zone of the descriptor, as follows:

(i) Descriptor in the first body zone: 100% of the relevant amount.
(ii) Descriptor in the second body zone: 80% of the relevant amount.
(iii) Descriptor in the third body zone: 60% of the relevant amount.
(iv) Descriptor in the fourth body zone: 40% of the relevant amount.
(v) Descriptor in the fifth body zone: 20% of the relevant amount.¹⁵

The maximum total amount payable for all descriptors is the lump sum for a tariff level 1 injury.¹⁶

Multiple descriptors – other cases
19.11 Under article 22 of the AFCS 2011, if a claimant receives one or more injuries in or arising from a single incident giving rise to descriptors in different body zones, but the ‘body zone’ method of calculating compensation cannot be

¹¹AFCS 2011, art 20(1).

¹²See para 19.16. If the relevant percentage is 100%, the lump sum is calculated in accordance with
AFCS 2011, art 19 (see para 19.6).

¹³AFCS 2011, art 21(3).

¹⁴Presumably this is the intention of AFCS 2011, art 21(3)(b), although the provision as drafted would have the effect of promoting third and subsequent body zones to the position of first and second body zones if the amount payable for each body zone was the same.

¹⁵AFCS 2011, art 21(2).

¹⁶AFCS 2011, art 17(2).

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used because there are no level 1 to 11 descriptors, or because any level 1 to 11 descriptors are in the same body zone,¹⁷the descriptors are ranked in a similar way to body zones, i.e. the first descriptor becomes the descriptor for which the highest relevant amount (lump sum plus supplementary award) is payable, the second descriptor is the descriptor for which the next highest relevant amount is payable, and so on. Where the lump sum is the same for two descriptors, one is treated as the higher and the other as the lower.¹⁸The percentage of the relevant amount which is payable for each descriptor is then determined as follows:

(i) First descriptor: 100% of the relevant amount.
(ii) Second descriptor: 80% of the relevant amount.
(iii) Third descriptor: 60% of the relevant amount.
(iv) Fourth descriptor: 40% of the relevant amount.
(v) Fifth and subsequent descriptors: 20% of the relevant amount.

GUARANTEED INCOME PAYMENT
19.12 A GIP is payable for descriptors between level 1 and level 11 (inclusive). GIP is a lifetime benefit that is intended to compensate for long-term loss of earning capacity and pension, and for loss of promotion prospects. GIP is inflation-linked to the Consumer Price Index¹⁹and is non-taxable. Payment of GIP does not commence until a claimant is medically discharged or the claimant’s service ends, or on the date of claim in other cases.²⁰GIP is paid monthly in arrears.²¹A claimant is entitled to only one GIP irrespective of the number of injuries that the person has sustained.²²Where a claimant has sustained more than one injury in separate incidents, GIP is the highest amount that has been awarded.²³

¹⁷In DA v Secretary of State for Defence (AFCS) [2017] UKUT 0189 (AAC), Judge Rowland observed that art 22(3) is very poorly drafted, but that it sees reasonably plain from its context that it is intended to apply where para (2)(a) – one injury or more which is described by more than one descriptor is described by more than one descriptor is sustained or arises from one incident – is satisfied and none of those descriptors is within tariff levels 1–11.

¹⁸Presumably, this is the intention of AFCS 2011, art 22(5)(b), although the provision as drafted would have the effect of promoting third and subsequent descriptors to the position of the first and second descriptors if the amount payable for each descriptor was the same.

¹⁹AFCS...