Military Compensation Shake-Up Requires Careful Consideration

Posted on: December 1st, 2016

Currently, armed forces personnel who are injured during their service have two main options available in terms of obtaining financial compensation:

  1. The Armed Forces Compensation Scheme is a government scheme that provides compensation for any injury, illness or death which is caused by service on or after 6 April 2005. The AFCS is a no-fault scheme which means payment is made without any fault by the MOD. For seriously injured service personnel, the awards are usually significantly lower than if the MOD is sued through the Courts. The AFCS pays out a lump sum for the injury, based on a tariff that gives set awards for each type of injury, with awards ranging from £1200 to £570,000. In addition, in the most serious cases a payment can be awarded that is intended to cover loss of earnings. However, there are no awards for matters such as care costs, equipment needs and adapted housing.
  2. Suing the MOD for compensation through the civil courts. To be successful there are two big hurdles to get over – (1) showing that the MOD is at fault for the injury, and (2) showing that ‘combat immunity’ (the MOD’s exemption from liability for actions taken during combat) does not apply. The most recount guidance from the Courts states that great care needs to be taken not to subject the military to duties that are unrealistic or excessively burdensome, having regard to public interest, and the unpredictable nature of armed conflict. In addition, it is easier to find fault in relation to pre-deployment decisions when there is time to assess and plan risks rather than actions within the theatre of war. A civil claim generally results in a much larger pay-out than under the AFCS because of all of the additional items that can be claimed for including care, equipment and housing and it is for this reason that many members of our armed forces feel that they have no option other than to sue the MOD.

Many injured military personnel returning from places such as Iraq and Afghanistan cannot show that their injuries were sustained as a result of the MOD’s negligence, and also many of them would have been sustained in combat situations. Therefore, those individuals are only able to pursue AFCS claims and the most seriously injured will always receive a lower pay-out than if they could sue the MOD, and they will be left without the resources to pay for their future needs. Any changes to the AFCS scheme to increase payments to those who have been injured serving their country is to be wholeheartedly welcomed.

What is not yet clear is whether the new proposals will truly match what can be achieved in the civil courts. Quantifying claims for those who are severely injured is a complex and skilled process; it usually involves expert evidence from a range of professionals to set out the medical prognosis for the future, life expectancy and an individual’s needs.

The detail of how it is proposed that this is achieved without legal representation for injured personnel needs to be carefully scrutinised.