Bernard Durkan
Question:298. Deputy Bernard J. Durkan asked the Minister for Defence if he will review the situation in the case of a person (details supplied); and if he will make a statement on the matter. [25480/21]
View answerThursday, 13 May 2021
Questions (298)
Written answers
The Army Pensions Acts 1923-1980 provide for the grant of pensions and gratuities to former members of the Permanent Defence Force (PDF) in respect of permanent disablement due to a wound or injury attributable to military service (whether at home or abroad) or due to disease attributable to or aggravated by overseas service with the United Nations.
Section 13(2) of the Army Pensions Act, 1923, as amended, provides that “Any compensation which may be received from or on behalf of the person alleged to be responsible for the act which caused the wounding … may be taken into consideration in fixing the amount of any pension, allowance or gratuity which might be awarded under this Act to or in respect of such person and if such compensation is received after the award of any such pension or allowance the Minister may review the award and, having regard to the amount of such compensation, either terminate or reduce the amount thereof.” The underlying objective of Section 13(2) is to take into consideration compensation paid 'on the double' for the same disablement.
In a case where Section 13(2) applies, the applicant or his/her solicitors are advised of the provisions of Section 13(2). They are invited to make submissions as to how much, if any of the compensation should be taken into account in fixing the rate of disability pension. The Minister then makes a bona fide decision based on a consideration of all circumstances of the case, including the annuity value of the compensation awarded.
The Minister may decide to take all, some or none of the compensation into account in fixing the rate of disability pension. If the Minister decides to reduce the disability pension under Section 13(2), the reduction applies for the lifetime of the pension.
In April 1986 the person in question was awarded a disability pension under the Army Pensions Acts in respect of an injury sustained while serving in the PDF. The person in question also instituted civil proceedings in respect of the same injury and was awarded compensation by the High Court. The disability pension payable was therefore reviewed under the provisions of section 13(2) of the 1923 Act and it was decided to reduce it by the annuity value of the total compensation which the person in question had received. The annuity value in question was not a calculation based on recovery of the amount of compensation involved. Instead, the purpose is to use an actuarial assessment to reduce the pension in a fair way to avoid payment “on the double” where compensation has already been received.
Subsequently, the person in question applied to the High Court for a judicial review of the decision to reduce the disability pension. The High Court quashed the decision to reduce the disability pension and ordered that the matter be considered anew. A fresh review of the disability pension was accordingly undertaken. All aspects of the case (including, in particular, representations made by his solicitors) were fully considered and in March 1988 the then Minister decided to reduce the disability pension payable by the annuity value of the total compensation received by the person in question.
The Deputy may wish to note that the Courts, in various previous judgements, have upheld the Minister’s statutory right to take into consideration that part of the damages which can properly be regarded as general damages or that part which can properly be regarded as referable to loss of earnings, or both these parts, as he considers proper. Alternatively, the Minister may decide to take none of the compensation into account.
I am satisfied that the disability pension in this case was properly determined in accordance with the relevant statutory provisions by the then Minister and I do not believe that a further review of the decision under Section 13(2) would be appropriate.