Other Awards in Respect of Disablement

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Chapter 9

Other Awards in Respect of Disablement

CONSTANT ATTENDANCE ALLOWANCE AND ASSOCIATED BENEFITS
Constant attendance allowance
Entitlement and rates of allowance
9.1 Prior to 2001, the SPO 1983 provided for entitlement to constant attendance allowance at two rates, but in the exercise of his discretion¹the Secretary of State paid the benefit at one of four rates, depending on the level of attendance which was required. Following consultation, the position was formalised by amendments to the SPO 1983²providing for payment of constant attendance allowance at four rates, thus giving a right of appeal in respect of any decision concerning the allowance. Article 8 of the SPO 2006 now provides that a claimant whose disablement has been assessed at 80% or more and who requires constant attendance on account of the disablement is entitled to constant attendance allowance³at one of four rates:⁴

(i) the part day rate where the necessary attendance consists of frequent or regular attendance for periods during the daytime which total not less than 4 and not more than 8 hours per day;

(ii) the full day rate where the necessary attendance consists of:

¹See para 1.9.

²By the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions

Amendment Order 2001 (SI 2001/409).

³SPO 2006, art 8.

⁴The amount of each rate of constant attendance allowance is set out in SPO 2006, Sch 1, Pt IV.

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(a) frequent or regular attendance for periods during the daytime which total not less than 8 and not more than 16 hours per day; or

(b) frequent or regular attendance for periods during the daytime which total less than 8 hours per day and attendance on two or more occasions per night;

(iii) the intermediate rate where the necessary attendance consists of:

(a) frequent or regular attendance for periods during the daytime which total not less than 8 hours per day and attendance on two or more occasions per night; or

(b) frequent or regular attendance for periods at night which total not less than 8 hours and during the daytime for periods which total not less than 4 hours per day;

(iv) the exceptional rate where the necessary attendance consists of continual attendance throughout the day and night.

In Secretary of State for Defence v CM (WP),⁵Judge Rowland held (at [107]) that, while article 8 did not directly address dual causation in relation to constant attendance allowance, consideration of whether the accepted disablement was the main factor in the overall need for attendance was an approach which was capable of taking into account the extent to which different disabilities might interact with one another. By an amendment to the SPO 2006 introduced in 2009,⁶a claimant with a terminal illness⁷is deemed to satisfy the conditions of entitlement to constant attendance allowance at the intermediate rate for any period of the illness after the date of claim.

Satisfying the attendance requirements
9.2 In MC v Secretary of State for Defence,⁸Judge Levenson held that for the purposes of constant attendance allowance, ‘attendance’ can include supervision which is precautionary or anticipatory, as well as actual attention to a claimant and, following the leading social security case of Secretary of State v Fairey,⁹the judge held that attention is ‘necessary’ if it is reasonably required to

⁵[2017] UKUT 8 (AAC), [2017] AACR 27.

⁶By Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions (Amendment)
Order 2009 (SI 2009/706), art 3(b).

⁷Defined in SPO 2006, Sch 6, para 58A as ‘a progressive disease where, in consequence of that disease, death can reasonably be expected within 6 months’.

⁸[2009] UKUT 173 (AAC).

⁹[1997] 1 WLR 799, 806.

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enable a severely disabled person to lead as far as reasonably possible a normal life. Neither the word ‘constant’ nor the word ‘continual’ means literally non-stop or uninterrupted, and ‘constant’ is not an independent condition, but a reference to the more detailed provisions in the conditions of entitlement to each of the various rates of constant attendance allowance. The same judge held in CAF/1268/2011¹⁰that an award of constant attendance allowance cannot be based on problems other than those accepted for the purposes of the war pension disablement assessment. In WS v Secretary of State for Defence (WP),¹¹Judge

Knowles QC (as she then was) held that point (iii) (a) in para 9.1 is only satisfied if a claimant requires attendance on two or more occasions each night, together with frequent or regular attendance for periods during the daytime totalling not less than 8 hours each day, i.e. that attendance which is required on two or more occasions on some nights is not enough.

Exceptionally severe disablement allowance
9.3 Claimants with a permanent disablement who are in receipt of constant attendance allowance at either the intermediate rate or the exceptional rate, or would be if they were not in a hospital or similar institution,¹²are entitled to exceptionally severe disablement allowance,¹³payable at the same rate as the full day rate.

Severe disablement occupational allowance
9.4 Claimants who receive constant attendance allowance at either the intermediate rate or the exceptional rate and who are ordinarily employed in a gainful occupation are entitled to severe disablement occupational allowance¹⁴

except during periods when they are:

(i) eligible to receive a personal unemployability allowance;¹⁵

(ii) in receipt of a ‘personal benefit’ under Part 2 or Part 3 of the Social Security Contributions and Benefits Act 1992 or the corresponding benefits in Northern Ireland, i.e. retirement pension and certain other

¹⁰Unreported.

¹¹[2015] UKUT 0557 (AAC).

¹²See para 11.9 regarding the suspension of benefit during periods while a claimant is in hospital or in an institution.

¹³SPO 2006, art 9.

¹⁴SPO 2006, art 10.

¹⁵See para 9.7.

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category A or B retirement pensions,¹⁶incapacity benefit, severe disablement allowance, carer’s allowance, and employment and support contributory allowance;¹⁷

(iii) in receipt of a state pension under Part 1 of the Pensions Act 2014;¹⁸

(iv) in receipt of a non-UK benefit similar to a personal benefit.

Constant attendance allowance under earlier schemes
9.5 Article 71(4) of the SPO 2006 provides for recipients of constant attendance allowance under previous schemes to be paid at the rates specified by Part IV of Schedule 1.

CLOTHING ALLOWANCE
9.6 Recipients of retired pay or a pension are entitled to clothing allowance¹⁹

if either:

(i) they are in receipt of retired pay or pension in respect of an amputation and regularly wear an artificial limb; or

(ii) as a result of the disablement which gives rise to an award there is exceptional wear and tear of the claimant’s clothing.

In CAF/656/2006,²⁰Judge Bano held that the matters for the tribunal to decide in considering a claim for clothing allowance under article 11(2) of the SPO 2006 were: (i) whether an accepted disablement and any other condition which resulted from that disablement gives rise to wear and tear to the claimant’s clothing, and
(ii) if so, whether such wear and tear is ‘exceptional’.

UNEMPLOYABILITY ALLOWANCES
9.7 Under article 12 of the SPO 2006, claimants who are in receipt of retired pay or a pension in respect of a disablement which is so serious as to make them

¹⁶I.e. those falling within Social Security (Widow’s Benefit, Retirement Pensions and Other Benefits) (Transitional) Regulations 1979 (SI 1979/643), reg 18, or corresponding provisions in Northern Ireland.

¹⁷As defined in SPO 2006, art 10(4).

¹⁸As a result of an amendment by the Naval, Military and Air Forces Etc. (Disablement and Death)
Service Pensions (Amendment) Order 2016 (SI 2016/374).

¹⁹SPO 2006, art 11.

²⁰Unreported.

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unemployable are entitled to a personal unemployability allowance.²¹In CAF/962/2014,²²it was held that unemployability has to arise out of the disabling conditions on the basis of which a pension has been awarded. The term ‘unemployable’ encompasses not just whether the claimant is fit for work or capable of work, but also whether realistically there is any work which the claimant could do. In GT v Secretary of State for Defence (WP),²³Judge Mitchell held (at [43]) that the Secretary of State was wrong to treat the term ‘unemployable’ as meaning ‘permanently unemployable’. However, since the claimant’s service-related disablements must be so serious as to make the claimant unemployable in any job, the threshold of entitlement for this allowance is therefore high.

9.8 Since 1997, the allowance has not been payable to claimants aged 65 or over or whose disablement is less than 60%, but article 12(2) and (3) of the SPO 2006 gives transitional protection to some former recipients of the allowance who do not satisfy the current conditions of entitlement and whose degree of disablement is 20% or more. Therapeutic earnings²⁴which are unlikely to exceed the amount specified in paragraph 5(c) of Part IV to Schedule 1 do not disqualify a claimant from receiving unemployability allowance,²⁵and therapeutic earnings received before 9 April 2001 continue to be treated as such until the claimant permanently ceases to do the work in respect of which the therapeutic earnings are paid.²⁶In GT v Secretary of State for Defence (WP),²⁷Judge Mitchell held that it is only therapeutic work actually undertaken by a claimant, and not therapeutic work which the claimant could undertake, which is to be taken into account when deciding whether the claimant is employable.

Additional unemployability allowances for dependants

Dependants other than children
9.9 Under...