Armed Forces Compensation Scheme.

Members of the Armed Forces will often be placed into high-risk scenarios and can suffer significant, disabling injuries as a result. Whilst it is possible to bring a claim against the Ministry of Defence (“MOD”) as your employer if they have been negligent, it is possible that an injury can arise as a result of a non-negligent act or be covered by the defence of combat immunity. In circumstances such as this, what options are available to an injured veteran?

In order to provide a level of protection and financial support for injured service personnel, there are two no-fault schemes which a member (or former member) of the Armed Forces can apply for if they have been injured at work. These are:

• The War Pension Scheme (WPS), for personnel who are no longer serving and their disablement was caused or made worse as a result of service in the armed forces before 6 April 2005
• The Armed Forces Compensation Scheme (AFCS), for personnel who have suffered any injury, illness or death deemed to be caused by service on or after 6 April 2005

The rules of the scheme and the value of the payments awarded are set by Parliament. For the WPS, the value of the payments increase each year in line with the consumer price index, whereas awards under the AFCS are calculated by reference to a tariff of injuries.

Limitation

There is no time limit for bringing a WPS claim, although any award will only be paid from the date of your claim. In contrast, an AFCS claim for injury or illness must be made within seven years of the earliest of the following dates:

• the date of the incident leading to the injury or illness
• the date on which an injury or illness not caused by service was made worse by service
• in the case of illness, the date of first seeking medical advice for that illness
• the date of discharge

There are certain circumstances when an AFCS claim will be accepted outside the time limits above such as being prevented from claiming due to ill health or your illness occurs later, and we would be able to advise you on this.

The remainder of this blog will focus on AFCS cases, which are far more common nowadays due to the date cut-off, but more information on WPS cases can be found here: https://www.gov.uk/guidance/war-pension-scheme-wps

AFCS – What do I need to prove?

All serving and ex-serving personnel who have suffered an injury or illness related to service on or after 6 April 2005 can make a claim under the Scheme, including reserve personnel and Gurkhas.

In order to be successful in an AFCS case, you need to prove the following that:

• the injury, disablement or death was caused (wholly or partly) by service
• the cause of injury occurred on or after 6 April 2005
• the injury must be one which has a relevant ‘descriptor’ under the tariff

Where an injury is partly caused by service, benefit is only payable if service is deemed to be the predominant cause of the injury.

Where there has been a service-related death which meets these criteria, the Scheme pays benefits to eligible partners and children. An eligible partner is someone with whom the deceased cohabited in an exclusive and substantial relationship, with financial and wider dependence.

AFCS – Procedure

In order to make a claim, you need to submit a claim form to Veterans UK. Once you have submitted your AFCS claim to the MOD, they will then proceed with investigating whether or not you are entitled to an award under the Scheme. In order to do this, they will often request supporting documentation such as your medical records or request that you are examined by a medical professional.

Eventually, you will receive a response from the MOD (or more likely, Veterans UK) advising whether or not you have been successful with your claim. Presently there is quite a significant turnaround time for Veterans UK to respond to your claim, with current estimates being around 52 – 54 weeks. If you are successful, you will be offered an award in line with where they consider your injuries are placed on the tariff system.

If you are unhappy with the level of award the MOD have provided, or if no award has been provided at all, you can request a formal Reconsideration of the MOD’s decision within 12 months from the decision date. Ultimately, if after the Reconsideration you are still unhappy with the award offered then you can appeal your claim to an independent Tribunal who will make the final judgment on the matter.

AFCS – What awards can be made?

Under the Scheme, a successful applicant may receive two types of award:

• A tax-free lump sum for pain and suffering, the quantum of the award reflecting the severity of the illness. This is based on the tariff award system, with awards ranging from £1,236 – £650,000.
• In cases of very serious illness, an additional Guaranteed Income Payment (GIP). This is a tax-free, index-linked monthly payment made from discharge and for life.

Can I bring a civil claim and an AFCS claim at the same time?

In short, yes. If the MOD are found to have been negligent and the cause of your injury then you can obtain compensation through the civil route. The time limit for bringing a civil claim is shorter, being limited to only three years from the date of accident (or date of knowledge if later), but it is also possible that you may be awarded a higher level of compensation as the civil award is not limited by the tariff system.

However, you should be aware that if you were to receive an compensation award for a civil claim and an AFCS claim for the same injury then the MOD have the right to reduce or ‘abate’ your compensation award to prevent double recovery.

If you would like more information about bringing either an AFCS or a WPS claim please contact us by calling 0800 652 3371 or email info@lblaw.co.uk