The Basic Award and the Assessment of Disablement

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Chapter 8

The Basic Award and the Assessment of Disablement

THE BASIC AWARD
8.1 The basic award in respect of disablement under the SPO 2006 is an annual amount called ‘retired pay’ for officers¹or a weekly amount called a ‘pension’ for other ranks.²Article 5(2) provides that an award in respect of the disablement of a claimant cannot take effect prior to the termination of a claimant’s service, or in the case of an officer, while the claimant is on the Active List.³

Amount of the basic award
8.2 The amount of a war pension depends on the rank or status and the degree of disablement of the claimant.⁴A claimant whose degree of disablement is less than 20% receives a gratuity, but no pension.⁵Under article 5(1) of the SPO 2006, awards can be made ‘provisionally or upon any other basis’, but the review provisions in the current Scheme⁶would appear to make provisional awards unnecessary.⁷

¹Under SPO 2006, Sch 6, para 53, ‘retired pay’ also includes severe disablement occupational allowance paid to warrant officer members of the naval forces.

²These terms also apply to benefits payable under earlier schemes.

³The actual commencement dates of awards are governed by SPO 2006, Sch 3 (see Chapter 7).

⁴SPO 2006, art 6.

⁵SPO 2006, art 7.

⁶See Chapter 6.

⁷This view is supported by the decision of Judge Mitchell in GT v Secretary of State for Defence

[2016] UKUT 0309 (AAC), in which the judge considered it unnecessary to decide whether a tribunal should have made a provisional award in view of the existence of the review powers.

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8.3 Part I of Schedule 1 to the SPO 2006 consists of a table of equivalent rank and status in each of the armed services, arranged into 15 Groups. However, the retirement pay rates for all claimants in Groups 1 to 9 and the pension pay rates for all claimants in Groups 10 to 15 are the same. The amount of any gratuity payable under article 6 is determined by a claimant’s degree of disablement, but is the same for all claimants irrespective of rank.

ASSESSING DISABLEMENT
8.4 A claimant’s degree of disablement is assessed in percentage terms in accordance with article 42(2) and (5) of the SPO 2006. Article 42(2) provides:

(2) Subject to the following provisions of this article—

(a) the degree of the disablement due to service of a member of the armed forces shall be assessed by making a comparison between the condition of the member as so disabled and the condition of a normal healthy person of the same age and sex, without taking into account the earning capacity of the member in his disabled condition in his own or any other specific trade or occupation, and without taking into account the effect of any individual factors or extraneous circumstances;

(b) for the purpose of assessing the degree of disablement due to an injury which existed before or arose during service and has been and remains aggravated thereby—

(i) in assessing the degree of disablement existing at the date of the termination of the service of the member, account shall be taken of the total disablement due to that injury and existing at that date, and

(ii) in assessing the degree of disablement existing at any date subsequent to the date of the termination of his service, any increase in the degree of disablement which has occurred since the said date of termination shall only be taken into account in so far as that increase is due to the aggravation by service of that injury;

(c) where such disablement is due to more than one injury, a composite assessment of the degree of disablement shall be made by reference to the combined effect of all such injuries;

(d) the degree of disablement shall be assessed on an interim basis unless the member's condition permits a final assessment of the extent, if any, of that disablement.

Under Article 42(5) of the SPO 2006, disablement of 20% or more must be assessed in 10% bands, up to a maximum of 100%. Disablement of less than 20%

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is generally assessed using the percentage bands used to determine the amount of a gratuity, i.e. 1% to 5%, 6% to 14% and 15% to 19%.⁸

Prescribed assessments
8.5 Parts III and V of Schedule 1 to the SPO 2006 set out in tabular form fixed percentage assessments of disablement for particular types of injury and disablement, for example ‘loss of 3 fingers’, for which the table prescribes an assessment of disablement of 30%. The scheduled assessments were approved by the Hancock Committee in 1947 and the McCorquodale Committee in 1966. Article 42(6) provides that where a disablement is due to a specified injury, or is itself a specified disablement, and the injury or disablement has reached a settled condition, in the absence of any special features, the assessment of disablement must be in accordance with the table. In NH v Secretary of State for Defence (WP and AFCS),⁹Judge Rowland held that, despite the absence of any provision in the War Pensions Scheme equivalent to regulation 11(8) of the Social Security (General Benefit) Regulations 1982,¹⁰it is implicit in the Scheme that the prescribed degrees of disablement in Part V of Schedule 1 should be taken into account when making an assessment of disablement under article 42(5). In DS v Secretary of State for Defence (WP),¹¹the same judge approved evidence provided by the medical adviser to the Deputy Chief of Defence Staff (Personnel) to the effect that the prescribed degrees of disablement are important in acting as signposts for all other assessments in the Scheme, although the judge held that a failure to refer specifically to the Schedule is not by itself an error of law. Although SPO-prescribed degrees of disablement are therefore relevant when assessing disablement under the War Pensions Scheme, in EP v Secretary of State for Defence (WP),¹²Judge Bano held that when carrying out an SPO assessment a tribunal had erred in law in taking into account Armed Forces Compensation Scheme tariff levels.

Assessing disablement – general principles
8.6 In CT v Secretary of State for Defence,¹³Judge Jacobs gave the following guidance to tribunals on the assessment of disablement:

⁸See SPO 2006, Sch 1, Pt III, Table 2.

⁹[2015] UKUT 35 (AAC).

¹⁰SI 1982/1408.

¹¹[2016] UKUT 51 (AAC).

¹²[2016] UKUT 0329 (AAC).

¹³[2009] UKUT 167 (AAC).

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19. The tribunal must assess the claimant’s disablement, not the condition or injury.^[14]

20. If there is more than one injury [the tribunal] must make a composite assessment (article 42(2)(c)). In doing so, it may find it useful, even perhaps necessary, to make individual assessments of different disablements as part of the process of determining the claimant’s overall disablement. That will depend in part on the nature of the disablement. For example: if all the claimant’s injuries affect his mobility, it would be pointless to identify the contribution of each injury. But if the claimant has a variety of disablements affecting various parts of his physical and mental functioning, it may be helpful to consider them separately before making a composite assessment ...
21. Disablement can only be identified by comparison with ‘the condition of a normal healthy person of the same age and sex’ (article 42(2)(a)). The tribunal must make findings of fact on the claimant’s disablement that are sufficient to allow it to apply that...