Army pension entitlements are laid down in extensive legislation. This is relatively unusual in the public sector. More commonly, the major public service schemes are made under more general legislation.
An application for a pension is made to the Minister for Defence, and the matter is referred to the Army Pension Board. The Minister may decide the matter himself if a reference or investigation is not necessary by the Army Pensions Board.
When an application is referred to the Board, it investigates the matter and refers back to the Department. A reference to the Board may be necessary, for example, where there is a disablement or injury. In this case, the Board determines the extent of disablement and relevant qualifications.
There are a number of types of pensions which may be awarded to soldiers who have been injured in the course of their service. A wound pension may be granted at the date of discharge, and the Defence Forces for the person who has suffered a disablement caused by a wound during military service. The disablement must be of a permanent nature, which impairs a function.
A wound gratuity may be granted where a lesser degree of injury has been suffered than is necessary for a wound pension. A disability pension may be granted where disablement is due to a disease on UN service.
Allowances and gratuities may be made to widows and children of persons who have died in service, have died after discharge due to a disease referable to UN service, or persons who were in receipt of a disability pension who died due to the disease for which the pension was granted.
There are a range of other allowances and gratuities that may be granted to widows, children and dependents of persons who die in service or afterwards due to wounds from serving in the Defence Forces or the United Nations.
The Army Pensions Board consists of three members. Two are medical practitioners, and one is an Army medical officer. A chairman and non-military member are appointed by the Minister for Defence.
The Board investigates applications for pensions and reports to the Department. The Board may conduct enquiries, hear witnesses on oath, and make investigations. They may medically examine applicants.
The Board may examine applicants or refer them for examination. An initial examination may be undertaken by the Board’s officers. The applicant may be referred to the appropriate specialist.
The Board may summons applicants, and failure to attend is likely to lead to an adverse finding. The Board must follow principles of natural justice in considering applications for pensions. The Board’s findings are conclusive. The Minister may request a review based on new evidence.
The Board assesses the degree of disablement. A wound pension requires 20%, while a wound gratuity may be permitted below this level. The disability percentage requires 80%, though a special provision for service with the UN applies for disablement between 50% and 80%; they permit the grant of a pension. A special pension may be granted for disablement of at least 80% caused by disease aggravated by a wound or disease in UN service.
Pensions may be reviewed where the degree of disablement increases by up to 10% of the pre-existing level. Applicant may request the Minister to refer the matter to the Army Pensions Board.A person may be disqualified from a pension or gratuity if the disease or injury is due to serious negligence and misconduct.
Compensation for personal injury or death may be taken into account and fixed at the level of payment. If it is received after the award is made, the pension may be reviewed to take account of the award or may be terminated.
The pension may only be reduced to the extent where the compensation covers the same areas. However, elements of the scheme are relatively unique and cannot really link to compensation elements, which may be covered by a civil act through special elements of the pension that are not necessarily linked to loss of earnings.
It is an offence to make a false statement in connection with an application for an Army pension. It may be recovered as a civil debt.Army pensions may not be assigned or taken in the enforcement of any judgment.
Recipient. Certain persons who were convicted of a crime or offence requiring a serving term of imprisonment of a certain duration forfeit the pension on conviction. The Minister has the discretion to restore the pension. The provision was found unconstitutional.
As a condition of certain pensions, the person submits themselves to medical examination as required. The pension may terminate if the person refuses to comply with the conditions.
At one time, the State was entirely immune from liability. This was found unconstitutional in the 1970’s. In the late 1980s, the Irish courts confirmed that members of the Defence Force were owed a duty of care and could sue the Minister for Defence for breach.
The courts have held that the Department and superiors are liable to take such care for the safety of the solider as is reasonable in the circumstances of the relationship and the activity in which they are engaged.
The circumstances of active service may involve an unavoidable risk of death or serious injury. Although certain aspects of military service may involve unavoidable risk of death or serious injury, decisions may be made in the agony of the moment. Mere proof of error is not sufficient to establish negligence.
Swift decisions made in the agony of the moment will not readily be condemned as negligent with the benefit of hindsight. The courts will be very reluctant to second-guess the actions of commanders involved in difficult and escalating situations of a military nature.
The duties owed by commanders to soldiers are not specified in regulations. The duties of soldiers to obey lawful orders and in respect of disciplines are prescribed. Duties of care may be inferred from practice, training circulars and instructions.
In the so-called army deafness cases, the issue of rules, circulars and instructions dealing with hearing protection was significant in the context of framing the duty owed. There were good practical reasons in many cases for the absence of hearing equipment, such as attendance to verbal orders and communications, The courts held in numerous cases that there had been a breach of duty of care.
The Health, Safety and Welfare of Work Act applies to the Defence Forces. However, the Minister may, by regulations, make certain activities exempt where compliance is unnecessary and impracticable. There are exemptions of the generally applicable regulations in relation to members of the Defence Forces on active service engaged in operational duties. In aid of the civil power or in training activities associated with the above.