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Statutory Instrument 2005 No. 437The Armed Forces Early Departure Payments Scheme Order 2005(The document as of February, 2008) STATUTORY INSTRUMENTS2005 No. 437PENSIONSThe Armed Forces Early Departure Payments Scheme Order 2005
The Secretary of State for Defence, in exercise of the powers conferred on him by sections 1(1) and 10(2) of the Armed Forces (Pensions and Compensation) Act 2004[1], hereby makes the following Order: Citation and commencement 1. - (1) This Order may be cited as the Armed Forces Early Departure Payments Scheme Order 2005. (2) This Order comes into force on 6th April 2005. Establishment of the Armed Forces Early Departure Payments Scheme 2. - (1) This Order provides for a Scheme to be known as "the Armed Forces Early Departure Payments Scheme". (2) The Scheme provides for -
(b) entitlement to a lump sum payment where those conditions are not met but at the time membership of the armed forces ceases the member -
(ii) is unfit for service as such a member (see article 16). General interpretation
(b) the Army Pensions Warrant 1977[3], and (c) Orders and regulations made under section 2 of the Air Forces (Constitution) Act 1917[4], or any instrument amending or replacing any of those instruments;
(ii) in the case of a Nepalese person recruited in Nepal, of the Brigade of Gurkhas, and references to service, in relation to service as a member of the armed forces, are to be read accordingly;
Meaning of "relevant service"
(ii) is treated under rule A.3 of the AFPS 2005 as receiving assumed pay (or would be so treated if he were such a member), (b) any period for which the member is in service to which rule C.6 of the AFPS 2005 applies (purchase of added years for members seconded to NATO or the UN etc.) (or would apply if he were such a member),
(ii) was not such a member in respect of that service, the period of qualifying service that he would have been entitled to count under rule K.3 of the AFPS 2005 (service credited from the AFPS 1975) if he were an AFPS 1975 transferee (as defined in rule K.1(2) of the AFPS 2005) and rule K.3(2) of that Scheme (under which service before the age of 21 as an officer and service before the age of 18 otherwise than as an officer is counted) were disregarded. Meaning of "calculation service"
(b) in the case of a person who is an active or deferred member of the AFPS 2005, any period the person is entitled to count as reckonable service for the purposes of that Scheme under rule C.3 of that Scheme (effect of making contributions), and (c) in the case of such a person in respect of whom a transfer value in respect of his rights under another pension arrangement has been accepted under Part F of that Scheme (transfers), any period the person is entitled to count as reckonable service for the purposes of that Scheme as a result of the transfer. Meaning of "final relevant earnings"
(b) any other amount if and to the extent that the Secretary of State has determined that it is to be treated as relevant earnings for this purpose.
(3) Accordingly, subject to paragraph (2)(b), "relevant earnings" does not include -
(b) any additional amounts payable in respect of particular qualifications or duties, the location of service or the conditions in which service is temporarily performed, or (c) without prejudice to paragraphs (a) and (b), any additional amounts payable to medical or dental officers as such. (4) "Relevant earnings" does not include any description of payment that the Secretary of State has determined is not to be treated as relevant earnings, unless it is expressly provided to the member on the basis that it is relevant earnings for this purpose.
(7) If at any time during the period of three years mentioned in paragraph (1) the person is treated under rule A.3(1) of the AFPS 2005 as receiving assumed pay, or would be if he were a member of that Scheme, for the purposes of that paragraph his relevant earnings for each day during that period when he is so treated include the assumed pay for that day.
(b) had come into payment on the first day of the next tax year after the tax year in which the day falls. Eligibility for early departure payments
(b) rule D.6 of that Scheme (early payment of benefits: active members with significant impairment of capacity for gainful employment). (6) In paragraph (2) "excluded person" means -
(b) a person who is an active member of the AFPS 1975. Entitlement to early departure payments
(b) to periodical payments in respect of the period beginning with the day following that on which he so ceases and ending with the day before his 65th birthday.
(3) A person is not entitled to a lump sum under this article if he has previously received a lump sum under this article that he was liable to repay under article 12(6) and has not repaid it.
(b) the additional service allowance. (2) The basic amount is N/140ths of the person's final relevant earnings.
(b) X is the greater of -
(ii) the number of years' relevant service that the person was entitled to count when he attained the age of 40, expressed in each case in years and fractions of a year, and
(5) If the person's calculation service includes any period within sub-paragraph (b) or (c) of the definition of that service in article 5, N is increased by the number of years in that period (expressed in years and fractions of a year).
(b) in a case where a lump sum has been paid to the person previously under article 9, the amount payable under sub-paragraph (a), less the amount so previously paid that has not been repaid under article 12(6). (8) In the case of a person who would be an excluded person for the purposes of article 8(2), apart from the Secretary of State agreeing as mentioned in article 8(6)(a), the amounts of the payments under this article are to be reduced by such amount as the Secretary of State considers appropriate, after consultation with the Scheme actuary.
(b) had come into payment on the first day after the person ceased to be in service as mentioned in article 8(3). (4) In determining the annual amount of the payments calculated in accordance with article 10(6) at any time after the person attains the age of 55, it is to be assumed that those payments -
(b) came into payment when the person attained the age of 55, and those payments are to be increased accordingly.
(b) is called out for permanent service under Part 4, 5 or 6 of the Reserve Forces Act 1996[7] or under the Reserve Forces Act 1980[8], (c) enters full-time service as a result of a commitment under section 24 of the Reserve Forces Act 1996 (commitment to a period of full-time service), or (d) enters service as a result of a commitment under section 25 of that Act (commitment to additional duties); and in this article that service is referred to as "the new service".
(b) if he is a person to whom paragraph (1)(a) applies otherwise than as a result of his being recalled for permanent service under Part 7 of the Reserve Forces Act 1996 or under the Reserve Forces Act 1980, then, subject to paragraph (a), a fresh entitlement under article 9 may arise in respect of the relevant service he has then completed (including the new service), (c) if he is a person to whom paragraph (1)(a) applies as a result of his being so recalled or to whom paragraph (1)(b) applies -
(ii) subject to paragraph (a), his former entitlement, by virtue of the cessation of the former service, to periodical payments due in respect of any period after the new service ceases revives (4) For the purposes of paragraph (3), a person is an ill-health pensioner if on leaving the new service he is entitled to the immediate payment of a pension under -
(b) rule D.6 of that Scheme (early payment of benefits: active members with significant impairment of capacity for gainful employment). (5) In the case of a person to whom paragraph (1)(c) or (d) applies -
(b) accordingly -
(ii) his former entitlement, by virtue of the cessation of the former service, to periodical payments due in respect of any period after the new service ceases revives. (6) If the period beginning with the date when the person became entitled to the payments under article 9 and ending immediately before the date on which the new service begins ("the service break") is less than the relevant period, the person must repay the relevant fraction of any lump sum payment made to him under article 9, unless he is a person to whom paragraph (1)(a) applies as a result of his being recalled for service under Part 7 of the Reserve Forces Act 1996 or under the Reserve Forces Act 1980 or to whom paragraph (1)(b) applies.
(8) In paragraph (7) "the relevant fraction" means -
Effect of emergencies etc.
(b) his being a prisoner of war on that date. (2) The person is treated for the purposes of articles 8 to 12 as having ceased to be in service on the relevant date.
(b) in the case of a person who agreed to continue in service after his commitment ended until the age of 55, the day before that on which he reached that age, and (c) in the case of a person not within sub-paragraph (a) or (b) who was notified that a particular date was to be the last day of his service, that date. Entitlement to resettlement grants
(b) is not entitled to payments under article 9 or the immediate payment of a pension under -
(ii) rule D.5 of that Scheme (early payment of benefits: active members with permanent serious ill-health), or (iii) rule D.6 of that Scheme (early payment of benefits: active members with significant impairment of capacity for gainful employment), (c) either -
(ii) has made a repayment in respect of any payment previously so received in accordance with article 15 or the corresponding provisions, and (d) is not a member of the AFPS 1975. (2) The amount of the lump sum is -
(b) in that case, the same proportion of Ј9,000, or the sum the Secretary of State has for the time being determined for the purposes of sub-paragraph (a), as the amount repaid by him bore to the amount paid to him. (3) The lump sum is payable before the expiry of the period of 3 months beginning with the day on which the person ceases to be in service as mentioned in paragraph (1).
(b) Articles 67 to 70 or 167A and 167B of the Army Pensions Warrant 1977, (c) Article 3063 of the Queen's Regulations for the Royal Air Force[10], and (d) any earlier or later provisions corresponding to those mentioned in sub-paragraph (a), (b) or (c). Obligation to repay resettlement grant on rejoining armed forces or entering certain reserve forces service
(b) before the expiry of the period of 31 days beginning with the date on which his service ceases, he -
(ii) enters full-time service as a result of a commitment under section 24 of the Reserve Forces Act 1996 (commitment to a period of full-time service), or (iii) enters service as a result of a commitment under section 25 of that Act (commitment to additional duties). (2) The person must repay the full amount of the payment made to him under article 14. Lump sum awards: incapacity for armed forces service 16. - (1) A person who ceases to be in service as a member of the armed forces is entitled to immediate payment of a lump sum if -
(b) the person has at least two years' relevant service, (c) immediately before the service ceases the person is an active member of the AFPS 2005, and (d) the person is not entitled to payments under article 9 of the Scheme or the immediate payment of a pension or lump sum under -
(ii) rule D.5 of that Scheme (early payment of benefits: active members with permanent serious ill-health), (iii) rule D.6 of that Scheme (early payment of benefits: active members with significant impairment of capacity for gainful employment), or (iv) rule D.11 of that Scheme (option for members in serious ill-health to exchange whole pension for lump sum). (2) The amount of the lump sum payable under this article is calculated by multiplying one eighth of the person's final relevant earnings by his calculation service (expressed in years and fractions of a year), except where paragraph (3) or (4) applies. (This note is not part of the Order) This Order is made under the Armed Forces (Pensions and Compensation) Act 2004 (c. 32) and establishes the Armed Forces Early Departure Payments Scheme ("the Scheme"). This is a new scheme for making payments to members of the armed forces leaving service before they are entitled to retirement pensions or other benefits from the Armed Forces Pension Scheme 2005 ("the pension scheme"). The Scheme replaces existing arrangements for such payments for persons joining the armed forces on or after 6th April 2005 or in service immediately before that date and transferring to the Armed Forces Pension Scheme 2005 (which also only applies on or after that date). Article 1 provides that the Order comes into force on 6th April 2005. Article 2 provides for the establishment of the Scheme and provides that it is to be known as "the Armed Forces Early Departure Payments Scheme". Article 3 sets out general definitions. Articles 4 and 5 explain the meaning of "relevant service" and "calculation service" respectively. Relevant service is the service as a member of the armed forces that a person must be in to qualify for benefits under the Scheme. Calculation service is the service used for calculating the amount of benefits under the Scheme. It includes all relevant service and also other periods that count in calculating pensions under the pension Scheme, like added years bought by voluntary contributions and periods credited from other pension schemes. Article 6 explains the meaning of "final relevant earnings", which are the earnings used in calculating benefits under the Scheme, and article 7 provides for adjustments for inflation in determining their amount. Articles 8 to 13 deal with early departure payments. Article 8 provides that a person is eligible to become entitled to such payments if when he leaves service he is at least 40 but under 55 and has completed at least 18 years' relevant service. Article 9 provides for entitlement to arise on leaving service to an immediate lump sum payment and periodical payments payable until the person is 65. Article 10 makes provision about how the amounts of the payments are to be calculated. It provides for the rate of the periodical payments to rise by up to 50% when the person reaches 55. Article 11 secures that increases for inflation are made. Article 12 deals with the case where a person who is entitled to early departure payments rejoins the armed forces or enters certain reserve forces service. It provides for the payments to cease during the new service. After short breaks part of the lump sum may be repayable. Article 13 provides that where a person has to continue in service because of an emergency he is treated for the purposes of the early departure payments provisions as if he had left when he would otherwise have done so. Articles 14 and 15 make provision for the payment of resettlement grants, which are lump sums payable immediately where a person leaving the armed forces with at least 12 years' relevant service is not entitled to early departure payments under article 9 or pension scheme benefits. Under article 15 there is an obligation to repay a resettlement grant on rejoining the armed forces or entering certain reserve forces service less than 30 days after leaving the former service. Article 16 provides for the payment of lump sums to persons who when they leave the armed forces after at least 2 years' service are unfit for service and not entitled to any other benefits under the Scheme or the pension scheme. A full regulatory impact assessment has not been produced on this instrument as it has no impact on the costs of business, charities or the voluntary sector. Notes: [1] 2004 c.32.back [2] 1865 c.73.back [3] which is available from Her Majesty's Stationery Office.back [4] 1917 c.51.back [5] S.I. 2005/438.back [6] 1971 c. 56back [7] 1996 c. 14.back [8] 1980 c. 9.back [9] which is available from Service Personnel Policy (Pensions), Ministry of Defence, Main Building, Whitehall, London, SW1A 2HB.back [10] which is available from Her Majesty's Stationery Office.back ISBN 0 11 072458 5 -- Back --
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