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Neutral Citation Number:
Reported Number:	R(AF)4/07
File Number:	CAF 2858 2006
Appellant:
Respondent:
Judge/Commissioner:	Judge J. Mesher
Date Of Decision:	31/05/2007
Date Added:	11/06/2007
Main Category:	War pensions and armed forces compensation
Main Subcategory:	War pensions - specified decisions
Secondary Category:
Secondary Subcategory:
Notes:	War disablement pension – allowance for lowered standard of occupation – alternative suitable occupation with equivalent gross income – whether London weighting allowance to be included in “gross income” The claimant was receiving war disablement pension with an allowance for lowered standard of occupation (ALSO) at the maximum rate in accordance with what is now article 15 of the Naval, Military and Armed Forces Etc (Disablement and Death) Service Pensions Order 2006. One condition of entitlement was that he was incapable of following any occupation other than his regular service occupation with equivalent gross income. On review the Secretary of State decided that he was no longer entitled to ALSO because his earnings from his current occupation were now higher than those in his regular service occupation. The claimant appealed. The question for the tribunal and for the Commissioner on further appeal was whether his London weighting allowance in his present occupation should count as part of his gross income for calculating ALSO. The claimant argued that London weighting was a temporary payment and should be excluded from the calculation of earning capacity just as certain temporary payments (non-skills-based allowances) were excluded from the calculation of service pay. The Secretary of State argued that the London weighting was not a temporary allowance and was part of “gross income” in the natural and ordinary meaning of that term. Held, allowing the appeal, that: 1. as a matter of fairness and equity there was a requirement to compare like with like (R v Deputy Industrial Injuries Commissioner, ex parte Humphreys [1966] 2 QB 1 (also reported as appendix to R(I) 2/66) followed) (paragraph 27); 2. the distinction is not between temporary and permanent but between what is a normal part of the claimant’s income and what is not (R(I) 1/72 followed) (paragraph 28); 3. following that approach, the hypothetical comparison should be made between the claimant’s normal pay in his current occupation, including the London weighting allowance, and what he would normally be paid in his regular occupation if carried out in the location of the comparator occupation for as long as the comparator occupation has been carried out there, thus including the service recruitment and retention allowance (London) (paragraph 29); 4. in calculating the income from the regular occupation the prospect of promotion to a different rank or a shift to a different pay scale should not be taken into account as it would in fact be assuming a different regular occupation from that followed at the relevant date (paragraph 32). The Commissioner set aside the tribunal’s decision and referred the case to a differently constituted tribunal with directions.
Decision(s) to Download:	R(AF)_4-07_bvam.doc