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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Subsections (2) to (2B) (which are superseded by provisions inserted by this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

received at an appropriate time by the Commissioner;

or

 

 

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

9

 

(iii)   

a party to the proceedings or a party’s representative

was not present at a hearing related to the

proceedings.

(7)   

Nothing in subsection (6) above shall be construed as derogating

from any power to correct errors or set aside decisions which is

5

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

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

10

brought” there is inserted “to the Tribunal”.

6          

After section 11 there is inserted—

“11A    

Regulations

(1)   

Regulations under section 6A, 6C or 6D of this Act shall be made by

the Lord Chancellor.

15

(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.

(3)   

Subsections (4) to (7) of section 79 of the Social Security Act 1998

(supplemental provision in connection with powers to make

20

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.

(5)   

A statutory instrument containing—

(a)   

regulations under section 5A or 8(4) or (5) of this Act, or

25

(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),

   

shall not be made unless a draft of the instrument has been laid

before, and approved by a resolution of, each House of Parliament.

30

(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

of either House of Parliament.”

7     (1)  

Section 12 (interpretation) is amended as follows.

35

      (2)  

In subsection (1)—

(a)   

in the definition of “the Minister”, after “means” there is inserted

“(subject to subsection (1A) below)”;

(b)   

the following definitions are inserted at the appropriate places—

   

““Chief Commissioner” means the Chief Social Security

40

Commissioner appointed under the Social Security Act

1998 or the Social Security Administration (Northern

Ireland) Act 1992;”;

   

““Commissioner” means a Great Britain Social Security

Commissioner or a Northern Ireland Social Security

45

 

 

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

10

 

Commissioner, and includes a tribunal of Commissioners

constituted under section 6D(5) of this Act;”;

   

““Great Britain Social Security Commissioner” means the Chief

Social Security Commissioner or any other Social Security

Commissioner appointed under the Social Security Act

5

1998;”;

   

““Northern Ireland Social Security Commissioner” means the

Chief Social Security Commissioner or any other Social

Security Commissioner appointed under the Social

Security Administration (Northern Ireland) Act 1992;”.

10

      (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

(compensation schemes for armed and reserve forces), references in

this Act to the Minister shall be read as references to the person

15

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”.

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

20

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))”;

      (3)  

At the end there is inserted—

“(b)   

for the reference in section 6D(1) to section 16 of the Social

25

Security Act 1998 there shall be substituted a reference to

Article 16 of the Social Security (Northern Ireland) Order

1998.”

10    (1)  

The Schedule (constitution, jurisdiction and procedure of Pensions Appeal

Tribunals) is amended as follows.

30

      (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—

(a)   

the correction of accidental errors in any decision or record

of a decision of the Tribunal under this Act; and

35

(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

40

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

(iii)   

a party to the proceedings or a party’s

representative was not present at a hearing related

45

to the proceedings.

           

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.

 

 

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

11

 

     (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

virtue of sub-paragraph (3A)(b) above.

     (3C)  

Rules under this Schedule may—

(a)   

make provision with respect to the striking out or

5

reinstatement of proceedings before the Tribunal;

(b)   

provide that where an appeal to the Tribunal under this

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

10

leave given in pursuance of such rules.”

      (3)  

In paragraph 6 (appeal by person resident in Scotland or Northern Ireland),

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”.

15

      (5)  

After that paragraph there is inserted—

“6B        

Where it appears convenient to do so by reason of a subsequent

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.”

20

Schedule 2

Section 6

 

Royal Patriotic Fund Corporation: transfer of staff

1          

The contract of employment of an employee transferred under an order

under section 6

(a)   

is not terminated by the transfer,

25

(b)   

has effect from the date of transfer as if originally made between the

employee and the transferee.

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

30

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

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.

35

3          

But if the employee informs the Corporation or the proposed transferee that

he objects to the transfer—

(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

40

purpose, as having been dismissed by the Corporation.

4          

This Schedule does not prejudice any right of an employee to terminate his

contract of employment if (apart from the change of employer) a substantial

change is made to his detriment in his working conditions.

 

 

 
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