Armed Forces (Pensions and Compensation) Bill

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Session 2003 - 04
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Armed Forces (Pensions and Compensation) Bill

Armed Forces (Pensions and Compensation) Bill
Schedule 1 — Amendments to Pensions Appeal Tribunals Act 1943
5

Schedules
Schedule 1
Section 5

Amendments to Pensions Appeal Tribunals Act 1943
1
The Pensions Appeal Tribunals Act 1943 (c. 39) is amended in accordance
with the following provisions of this Schedule.
5
2     (1)
Section 5A (appeals to Pension Appeal Tribunal against specified decisions)
is amended as follows.
      (2)
In subsection (1), for “any such claim as is referred to in section 1, 2 or 3 of
this Act” there is substituted “a claim to which this section applies”.
      (3)
After that subsection there is inserted—
10
“(1A)
This section applies to—
(a)
any such claim as is referred to in section 1, 2 or 3 of this Act;
(b)
a claim under a scheme mentioned in section 1(2) of the
Armed Forces (Pensions and Compensation) Act 2004
(compensation schemes for armed and reserve forces).”
15
3     (1)
Section 6 (constitution, jurisdiction and procedure of Pension Appeal
Tribunals) is amended as follows.
      (2)
Subsections (2) to (2B) (which are superseded by provisions inserted by this
Schedule) are omitted.
      (3)
In subsection (2C), for the words from the beginning to “above,” there is
20
substituted—

“Where—
(a)
a case is referred under section 6B of this Act for
redetermination, or determination by a differently
constituted Tribunal, or
25
(b)
a direction for a rehearing is given under rules made by
virtue of paragraph 5(3B) of the Schedule to this Act,”,

and after “date of the” there is inserted “reference or”.
      (4)
In subsection (3), for “Subject to subsections (2) and (2A) of this section,”
there is substituted—
30

“Subject to—
(a)
sections 6A and 6B of this Act, and
(b)
rules made by virtue of paragraph 5(3A) of the Schedule to
this Act,”.

Armed Forces (Pensions and Compensation) Bill
Schedule 1 — Amendments to Pensions Appeal Tribunals Act 1943
6

4
After section 6 there is inserted—
“6A
Appeals from Tribunal to Social Security Commissioner
(1)
Subject to the provisions of this section, an appeal shall lie to an
appropriate Social Security Commissioner from any decision of the
Tribunal under section 1, 2, 3, 4 or 5A of this Act on the ground that
5
the decision was erroneous in point of law.
(2)
An appeal shall lie under this section at the instance of the person
who appealed to the Tribunal or of the Minister.
(3)
If each of the parties to the appeal expresses the view that the
decision appealed against was erroneous in point of law, the
10
Commissioner may set aside the decision and refer the case to the
Tribunal with directions for its determination.
(4)
Where the Commissioner holds that the decision appealed against
was erroneous in point of law, he shall set it aside and—
(a)
he shall have power—
15
(i)
to give the decision which he considers the Tribunal
should have given, if he can do so without making
fresh or further findings of fact; or
(ii)
if he considers it expedient, to make such findings
and give such decision as he considers appropriate in
20
the light of them;

and
(b)
in any other case he shall refer the case to the Tribunal with
directions for its determination.
(5)
Subject to any direction of the Commissioner, a reference under
25
subsection (3) or (4)(b) above shall be to a differently constituted
Tribunal.
(6)
No appeal lies under this section without the leave—
(a)
of the person who constituted, or was the chairman of, the
Tribunal when the decision was given;
30
(b)
of the President or Deputy President of Pensions Appeal
Tribunals for the part of the United Kingdom for which the
Tribunal was appointed; or
(c)
subject to and in accordance with regulations, of an
appropriate Social Security Commissioner.
35
(7)
Regulations may make provision as to the manner in which, and the
time within which, appeals are to be brought and applications made
for leave to appeal.
(8)
Subject to section 6C of this Act, a decision of a Commissioner under
this Act shall be final and conclusive.
40
(9)
In this section “appropriate Social Security Commissioner” means—
(a)
if the appeal tribunal which made the decision was
appointed for Northern Ireland, a Northern Ireland Social
Security Commissioner;
(b)
otherwise, a Great Britain Social Security Commissioner.
45

Armed Forces (Pensions and Compensation) Bill
Schedule 1 — Amendments to Pensions Appeal Tribunals Act 1943
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(10)
Where it appears convenient to do so by reason of a subsequent
change of residence by the person who appealed to the Tribunal, a
Great Britain Social Security Commissioner may direct that an
application or appeal to him under this section be transferred to a
Northern Ireland Social Security Commissioner; and vice versa.
5
6B
Redetermination etc of appeals by Pensions Appeal Tribunal
(1)
This section applies where an application is made to a person under
section 6A(6)(a) of this Act for leave to appeal from a decision of the
Tribunal.
(2)
If the person considers that the decision was erroneous in point of
10
law, he may set aside the decision and refer the case either for
redetermination by the Tribunal or for determination by a differently
constituted Tribunal.
(3)
If each of those who would be parties to the appeal if leave were
granted expresses the view that the decision was erroneous in point
15
of law, the person shall set aside the decision and refer the case for
determination by a differently constituted Tribunal.
6C
Appeals from Commissioner
(1)
Subject to subsection (2) below, a party to an appeal under section 6A
of this Act may appeal on a question of law to the appropriate court
20
from a decision of a Commissioner under that section.
(2)
No appeal under this section shall lie from a decision except—
(a)
with the leave of the Commissioner who gave the decision or,
in a case prescribed by regulations, a Commissioner selected
in accordance with regulations; or
25
(b)
if he refuses leave, with the leave of the appropriate court.
(3)
On an application to a Commissioner for leave under this section it
shall be the duty of the Commissioner to specify as the appropriate
court—
(a)
the Court of Session if it appears to him that the person who
30
appealed to the Tribunal is ordinarily resident in Scotland;
(b)
the Court of Appeal in Northern Ireland if it appears to him
that that person is ordinarily resident in Northern Ireland;
(c)
the Court of Appeal if it appears to him that that person is
ordinarily resident elsewhere.
35

  But if it appears to the Commissioner, having regard to the
circumstances of the case and in particular to the convenience of the
persons who may be parties to the proposed appeal, that he should
specify a different court mentioned in paragraphs (a) to (c) above as
the appropriate court, it shall be his duty to specify that court as the
40
appropriate court.
(4)
Regulations may make provision as to—
(a)
the manner in which, and the time within which, appeals
under this section are to be brought and applications made
for leave to appeal;
45
(b)
the procedure for dealing with such appeals and
applications.

Armed Forces (Pensions and Compensation) Bill
Schedule 1 — Amendments to Pensions Appeal Tribunals Act 1943
8

6D
Procedure in proceedings before Commissioner
(1)
Regulations may make, for the purposes of proceedings under this
Act before a Commissioner, any provision which may be made by
procedure regulations under section 16 of the Social Security Act
1998 for the purposes of proceedings under that Act before a
5
Commissioner.
(2)
The Lord Chancellor may by regulations provide—
(a)
for officers authorised by the Lord Chancellor or, in Scotland,
by the Secretary of State to make any determinations which
fall to be made by Commissioners;
10
(b)
for the procedure to be followed by such officers in making
such determinations;
(c)
for the manner in which such determinations by such officers
may be called in question.
(3)
Regulations prescribing the procedure to be followed in cases before
15
a Commissioner shall provide that any hearing shall be in public
except in so far as the Commissioner for special reasons otherwise
directs.
(4)
If it appears to a Commissioner that a matter before him involves a
question of fact of special difficulty, he may direct that in dealing
20
with that matter he shall have the assistance of one or more experts.

  In this subsection “expert” means a person appearing to the
Commissioner to have knowledge or experience which would be
relevant in determining the question of fact of special difficulty.
(5)
If it appears to the Chief Commissioner (or, in the case of his inability
25
to act, to such other of the Commissioners as he may have nominated
to act for that purpose) that—
(a)
an application for leave under section 6A(6)(c) of this Act, or
(b)
an appeal,

falling to be heard by one of the Commissioners involves a question
30
of law of special difficulty, he may direct that the application or
appeal be dealt with, not by that Commissioner alone, but by a
tribunal consisting of two or more Commissioners.

  If the decision of the tribunal is not unanimous, the decision of the
majority shall be the decision of the tribunal; and the presiding
35
Commissioner shall have a casting vote if the votes are equally
divided.
(6)
Regulations may make provision with respect to—
(a)
the correction of accidental errors in any decision or record of
a decision of a Commissioner under this Act; and
40
(b)
the setting aside of any such decision in a case where it
appears just to set the decision aside on the ground that—
(i)
additional evidence is available;
(ii)
a document relating to the proceedings in which the
decision was given was not sent to, or was not
45
received at an appropriate time by, a party to the
proceedings or a party’s representative or was not

Armed Forces (Pensions and Compensation) Bill
Schedule 1 — Amendments to Pensions Appeal Tribunals Act 1943
9

received at an appropriate time by the Commissioner;
or
(iii)
a party to the proceedings or a party’s representative
was not present at a hearing related to the
proceedings.
5
(7)
Nothing in subsection (6) above shall be construed as derogating
from any power to correct errors or set aside decisions which is
exercisable apart from regulations made by virtue of that subsection.
(8)
Except so far as it may be applied in relation to England and Wales
or Northern Ireland by regulations, Part 1 of the Arbitration Act 1996
10
shall not apply to any proceedings under this Act.”
5
In subsections (1) and (3) of section 8 (time limit for appeals), after “shall be
brought” there is inserted “to the Tribunal”.
6
After section 11 there is inserted—
“11A
Regulations
15
(1)
Regulations under section 6A, 6C or 6D of this Act shall be made by
the Lord Chancellor.
(2)
Where the Lord Chancellor proposes to make regulations under this
Act which extend to Scotland, it shall be his duty to consult the
Scottish Ministers with respect to the proposal.
20
(3)
Subsections (4) to (7) of section 79 of the Social Security Act 1998
(supplemental provision in connection with powers to make
subordinate legislation) apply to any power to make regulations
under this Act as they apply to any such power under that Act.
(4)
Regulations under this Act shall be made by statutory instrument.
25
(5)
A statutory instrument containing—
(a)
regulations under section 5A or 8(4) or (5) of this Act, or
(b)
regulations under section 6D of this Act made by virtue of
paragraph 2 of Schedule 5 to the Social Security Act 1998
(striking out or reinstatement of proceedings),
30

shall not be made unless a draft of the instrument has been laid
before, and approved by a resolution of, each House of Parliament.
(6)
A statutory instrument containing regulations under this Act (but
not containing any such regulations as are referred to in subsection
(5) above) shall be subject to annulment in pursuance of a resolution
35
of either House of Parliament.”
7     (1)
Section 12 (interpretation) is amended as follows.
      (2)
In subsection (1)—
(a)
in the definition of “the Minister”, after “means” there is inserted
“(subject to subsection (1A) below)”;
40
(b)
the following definitions are inserted at the appropriate places—

““Chief Commissioner” means the Chief Social Security
Commissioner appointed under the Social Security Act
1998 or the Social Security Administration (Northern
Ireland) Act 1992;”;
45

Armed Forces (Pensions and Compensation) Bill
Schedule 1 — Amendments to Pensions Appeal Tribunals Act 1943
10


““Commissioner” means a Great Britain Social Security
Commissioner or a Northern Ireland Social Security
Commissioner, and includes a tribunal of Commissioners
constituted under section 6D(5) of this Act;”;

““Great Britain Social Security Commissioner” means the Chief
5
Social Security Commissioner or any other Social Security
Commissioner appointed under the Social Security Act
1998;”;

““Northern Ireland Social Security Commissioner” means the
Chief Social Security Commissioner or any other Social
10
Security Commissioner appointed under the Social
Security Administration (Northern Ireland) Act 1992;”.
      (3)
After that subsection there is inserted—
“(1A)
In relation to a claim under a scheme mentioned in section 1(2) of the
Armed Forces (Pensions and Compensation) Act 2004
15
(compensation schemes for armed and reserve forces), references in
this Act to the Minister shall be read as references to the person
administering the scheme.”
8
In paragraph (b) of section 13 (application to Scotland), after “for references”
there is inserted “in the Schedule to this Act”.
20
9     (1)
Section 14 (application to Northern Ireland) is amended as follows.
      (2)
For the words from “subject to the modifications” to “the Schedule)” there is
substituted “subject to the following modifications—
(a)
for the references in the Schedule to the Lord Chancellor
(except the reference in paragraph 5(4)(b))”;
25
      (3)
At the end there is inserted—
“(b)
for the reference in section 6D(1) to section 16 of the Social
Security Act 1998 there shall be substituted a reference to
Article 16 of the Social Security (Northern Ireland) Order
1998.”
30
10    (1)
The Schedule (constitution, jurisdiction and procedure of Pensions Appeal
Tribunals) is amended as follows.
      (2)
In paragraph 5 (rules about practice and procedure of Tribunals), after sub-
paragraph (3) there is inserted—
    “(3A)
Such rules may make provision with respect to—
35
(a)
the correction of accidental errors in any decision or record
of a decision of the Tribunal under this Act; and
(b)
the setting aside of any such decision in a case where it
appears just to set the decision aside on the ground that—
(i)
additional evidence is available;
40
(ii)
a document relating to the proceedings in which
the decision was given was not sent to, or was not
received at an appropriate time by, a party to the
proceedings or a party’s representative or was not
received at an appropriate time by the Tribunal; or
45
(iii)
a party to the proceedings or a party’s
representative was not present at a hearing related
to the proceedings.

Armed Forces (Pensions and Compensation) Bill
Schedule 2 — Royal Patriotic Fund Corporation: transfer of staff
11


Nothing in this sub-paragraph shall be construed as derogating
from any power to correct errors or set aside decisions which is
exercisable apart from rules made by virtue of this sub-paragraph.
     (3B)
Such rules may make provision with respect to the rehearing of an
appeal where a decision has been set aside under rules made by
5
virtue of sub-paragraph (3A)(b) above.
     (3C)
Rules under this Schedule may—
(a)
make provision with respect to the striking out or
reinstatement of proceedings before the Tribunal;
(b)
provide that where an appeal to the Tribunal under this
10
Act is struck out in pursuance of such rules no further
appeal under this Act shall be brought in respect of the
matters to which the struck-out appeal related except with
leave given in pursuance of such rules.”
      (3)
In paragraph 6 (appeal by person resident in Scotland or Northern Ireland),
15
after “Any appeal” there is inserted “to the Tribunal”.
      (4)
In paragraph 6A (appeal by person resident outside the United Kingdom),
after “an appeal” there is inserted “to the Tribunal”.
      (5)
After that paragraph there is inserted—
“6B
Where it appears convenient to do so by reason of a subsequent
20
change of residence by the person who brought the appeal, the
Tribunal seised of an appeal may direct that it be transferred to a
Tribunal appointed for another part of the United Kingdom.”
Schedule 2
Section 6

Royal Patriotic Fund Corporation: transfer of staff
25
1
The contract of employment of an employee transferred under an order
under section 6—
(a)
is not terminated by the transfer,
(b)
has effect from the date of transfer as if originally made between the
employee and the transferee.
30
2
Where an employee is so transferred—
(a)
all the rights, powers, duties and liabilities of the Corporation under
or in connection with the contract of employment are by virtue of this
paragraph transferred to the transferee on the date of transfer, and
(b)
anything done before that date by or in relation to the Corporation in
35
respect of that contract or the employee is to be treated from that date
as having been done by or in relation to the transferee.

This paragraph does not prejudice the generality of paragraph 1.
3
But if the employee informs the Corporation or the proposed transferee that
he objects to the transfer—
40
(a)
paragraphs 1 and 2 do not apply, and
(b)
the contract of employment is terminated immediately before the
date of transfer but the employee is not to be treated, for any
purpose, as having been dismissed by the Corporation.