Armed Forces Injuries and Compensation

Posted on April 23, 2018 in Personal Injury
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Injuries as a Result of Service

All too often we receive enquiries from Armed Forces personnel regarding injuries sustained in service. The enquiry often starts “my war pension isn’t enough”, “AFCS appeal failed”, “AFCS didn’t consider the fact I can no longer work”.

The MOD has their own schemes which may provide compensation regardless of fault in which illness, injury or death has arisen as a result of service.

In addition to the official MOD schemes, injured personnel may also pursue a claim for compensation through the courts. This is often not explained to injured personnel when they are serving.

Civil Personal Injury Claim

This is a claim for damages pursued through the courts, although in many cases it is not necessary to issue Court proceedings or attend the Court.

A claim through the Courts must be made within 3 years of your injury.

To be successful, it is necessary to show that someone was at fault. A lawyer will advise whether there is enough evidence to prove this. Any claim will be against the MOD and not the individuals who may have been involved in your accident.

Compensation is often higher than through War Pension or Armed Forces Compensation Scheme. This is because the Court will take account of individual circumstances and not simply apply a tariff. There may also be financial losses that cannot be recovered under WP or AFCS but can in a claim for damages such as future loss of earnings.

The MOD have a shield from liability known as combat immunity. This means that decisions made in the heat of battle or under fire are protected from liability for negligence. However, this does not include decisions made higher up the chain in respect of procurement or training. If you’re in any doubt whether the cause of your injury falls under combat immunity seek legal advice as soon as possible.

We can provide individual advice by contacting our Personal Injury Department on 01752 663295.

War Pension Scheme

If your injury was suffered as a result of service before 6 April 2005, you will be entitled to claim under the War Pension Scheme. It is not necessary to show someone was at fault. There are no time limits for making the claim but any award will only be paid from the date the claim was made.

Claims can be made for any injury or illness which has been caused by or made worse by service including service related sport and adventurous training.

The WP scheme considers the type of injury and the percentage disability this has caused.

If the injury is assessed at 1-19% disability, only a lump sum payment will be made. If assessed at 20% or more an on going pension payment is made weekly or monthly in addition to a lump sum gratuity.

A claim can be made under War Pension Scheme by completing form AFCS/WPS001 or by contacting Veterans UK on 0808 191 4218. Claims under this scheme can be made towards the end of service but if successful, any award can only be paid from TX date.

If your claim is unsuccessful a request for reconsideration of the claim or an appeal with reasons must be submitted within 12 months of the date of the decision letter.

Armed Forces Compensation Scheme

For injuries and illness suffered as a result of or made worse by service after 6 April 2005 a claim may be made under AFCS. Similar to WP, it is not necessary to show someone was at fault. However, in contrast to WP, AFCS has a 7 year time limit. This means that claims under this scheme must be submitted within 7 years of the injury.

Claims can include injuries occurring through service related sport and adventurous training.

AFCS considers the type of injury and the level of disability. If successful a lump sum payment is made ranging from £1,236 to £650,000. For those with more serious injuries AFCS may also provide Guaranteed Income Payment which is a tax free, index linked monthly payment.

A claim under AFCS can be made and awarded whilst still serving. Claims are made by submitting AFCS/WPS001 or by contacting Veterans UK on 0808 191 4218.

If your claim is unsuccessful a request for reconsideration of the claim or an appeal with reasons must be submitted within 12 months of the date of the decision letter.

For either scheme, where official records relating to the matter are missing, there is a presumption in favour of the claimant unless the Secretary of State proves otherwise.

Frequently asked questions

“I’m told that I’m better off claiming AFCS as this is likely to be awarded quicker than a civil claim”. False – if successful under the AFCS scheme, any award is likely to be paid quicker than a civil claim. A civil claim can take many years. However, you can claim compensation under both so there is no need to choose one over the other.
“I have recently been successful claiming a War Pension for my injury sustained in 2003, can I now make a civil claim?” No – a civil claim for compensation must be submitted within 3 years of the injury. War Pension claims have no time limits.
“I sustained an injury in 2013, was discharged and unsuccessful with claiming AFCS and my appeal failed; can I now sue the MOD?” No – civil claims must be made to the courts within 3 years of the injury. Civil claim can be made alongside AFCS claims and personnel should not wait to receive the outcome of an AFCS claim before taking legal advice.
“I wasn’t told until recently that I could make a civil claim, can I do that now?” Only if your injury was within the last 3 years.
“If I’m successful with a civil claim, do I need to tell anyone that I had a lump sum gratuity under AFCS?” Yes – your lawyer will need to give credit for the lump sum payment when considering your civil claim. You cannot be compensated twice but any award made by the Courts is likely to be significantly higher than an award under AFCS.
“My boss said I was off-duty when I injured my back but he told me it was safe to jump and was with me; can I make a civil claim?” If the MOD has breached its duty of care, you may be able to make a successful claim.
“someone hit my car and as a result of my injuries I’m being medically discharged; do I have a claim?” If the other driver was negligent, it may be possible to pursue a civil claim against the driver.

Wolferstans Solicitors have experience in pursuing injury claims against the MOD, are members of Forces Law and attend APIL Military conferences on an annual basis.