UKSSCSC CIS_276_1998 (15 September 1998)
Mr. M. Rowland CIS/276/1998
Income - Armed Forces service invaliding pension - whether 'war disablement pension'
The claimant was discharged from the Royal Air force on medical grounds and was awarded a taxfree service invaliding pension on account of medical unfitness aggravated by air-force service. The adjudication officer treated the service invaliding pension as an occupational pension and took it into account in full when calculating the entitlement to income support. The claimant contended that it was not an occupational pension but claimant's a war disablement pension and that £10 of it should be disregarded under paragraph 16(a) of Schedule 9 to the Income Support (General) Regulations 1987, but his appeal was dismissed by a tribunal. The claimant appealed to the Commissioner.
Held, allowing the appeal, that:
- as 'war disablement pension' was not defined in either the 1987 Regulations or in any relevant part of the Social Security Contributions and Benefits Act 1992, the definition in the former section 84(1) of the Social Security Act 1986 applied because that was the Act under which the 1987 Regulations were made (para. 8);
- by virtue of section 84(1)(b) of the 1986 Act, any service attributable pension or tax-free service invaliding pension was a war disablement pension (para. 9);
- the adjudication officer was right to regard the pension as an occupational pension but, as it was also a war disablement pension, £10 fell to be disregarded (para. 10).
DECISION OF THE SOCIAL SECURITY COMMISSIONER
"315.-(1) Income from wounds and disability pensions to which this sub-section applies shall be exempt from income tax and shall not be reckoned in computing income for any purposes of the Income Tax Acts.
(2) Sub-section (1) above applies to—
(a) wounds pensions granted to members of the naval, military or air forces of the Crown;
(b) retired pay of disabled officers granted on account of medical unfitness attributable to or aggravated by naval, military or air-force service;
(c) disabled or disability pensions granted to members, other than commissioned officers, of the naval, military or air forces of the Crown on account of medical unfitness attributable to or aggravated by naval, military or air-force service;
(d) disablement pensions granted to persons who have been employed in the nursing services of any of the naval, military of air forces of the Crown on account of medical unfitness attributable to or aggravated by naval, military or air-force service; and
(e) injury and disablement pensions payable under any scheme made under the Injuries in War (Compensation) Act 1914, the Injuries in War Compensation Act 1914 (session 2), and the Injuries in War (Compensation Act 1915, or under any War Risks Compensation Scheme for the Mercantile Marine.
(3) Where the amount of any retired pay or pensions to which subsection (1) applies is not wholly attributable to disablement or disability, the relief conferred by that subsection shall extend only to such part as is certified by the Secretary of State for Social Services, after consultation with the appropriate government department, to be attributable to disablement or disability."
"In consequence of your having been granted a disability award for the disability on account of which you were invalided from the Royal Air Force, your Royal Air Force service pension is exempt from income tax under Section 365 Income and Corporation Taxes Act 1970, with effect from the date of the Department of Health and Social Security award, ie 7 February 1975. You should retain this letter for production, if necessary, to the Inland Revenue."
It was therefore clear that it had been accepted that the claimant's service invaliding pension had been granted on account of medical unfitness aggravated by air-force service.
over the status of his service invaliding pension. Adjudication officers have treated it as an occupational pension and have taken it into account in full when calculating the claimant's entitlement to income support. Following an increase in the amount of his pension in 1995, an adjudication officer issued another decision along the same lines as the earlier ones and the claimant appealed to the tribunal.
"There appears to be no precise definition within the social security legislation of the phrase "a war disablement pension" as used in 16(a). It was the view of the tribunal however that its only possible meaning is a pension paid under the legislation administered by the War Pensions Agency and must be limited to such payments. We therefore do not consider that the £10 disregard applies to the pension being paid to [the claimant]."
In other words, they would have accepted that a disablement pension paid under the 1983 Order was a "war disablement pension" but they were not prepared to accept that a service invaliding pension could be a "war disablement pension".
'war disablement pension' means-
(a) any retired pay, pension or allowance granted in respect of disablement under powers conferred by or under the Air Force (Constitution) Act 1917, the Personal Injuries (Emergency Provisions) Act 1939, the Pensions (Navy, Army, Air Force and Mercantile Marine) Act 1939, the Polish Resettlement Act 1947 or Part VII or section 151 of the Reserve Forces Act 1980;
(b) without prejudice to paragraph (a) of this definition, any retired pay or pension to which subsection (1) of section 365 of the Income and Corporation Taxes Act 1970 applies".
In the absence of any other definition, the phrase "war disablement pension" in the 1987 Regulations had, when first made, the meaning given to that phrase by section 84(1) of the 1986 Act (see section 11 of the Interpretation Act 1978) and that is presumably why no definition was included in the Regulations themselves. Ideally, those responsible for the subordinate legislation should have inserted a definition into the Regulations following the 1992 consolidation of the primary legislation under which there was no general interpretation section in the Social Security Contributions and Benefits Act 1992 and no necessity for a definition of "war disablement pension" in the interpretation section applying to Part VII. However, it is common ground, and I accept, that such an insertion was not strictly necessary because the phrase "war disablement pension" in the 1987 Regulations did not change its meaning upon the repeal of the 1986 Act but has retained its original meaning given by section 84(1) of that Act.
Date: 15 September 1998 (signed) Mr. M. Rowland Commissioner