EM v The Secretary of State for Defence

Pensions Act 1995, section 168(1), removes the effect of a war widow’s later marriage only when determining entitlement for periods beginning on or after its commencement. It does not create a right to restoration for an earlier period.

The provision also does not provide automatic restoration. A claimant must satisfy the remaining conditions of the applicable service-pensions scheme, including any requirement to make a claim. The sole relevant exception to the claim requirement applies where the service member died whilst serving in the armed forces.

The appellant’s first husband had been medically discharged from the RAF and died in 1948. She received a war widow’s pension until her remarriage in 1973. Her second husband died in 1977, but she did not then claim restoration of the pension.

She claimed restoration in August 1995 and received the pension from that date until her death. Following her death, her daughter sought payment to the estate for the period from 1 October 1977 to 31 July 1995. The Secretary of State rejected that retrospective claim, and the Pensions Appeal Tribunals for Scotland upheld the rejection on 14 December 2022.

The appeal concerned whether the applicable law entitled the estate to restoration for a period in which no timely claim had been made.

1. Appeal dismissed. The Pensions Appeal Tribunals for Scotland made no material error of law.

2. Under the Royal Warrant governing the position in October 1977, remarriage ended entitlement to a war widow’s pension and there was no provision for restoration when that later marriage ended. The same position continued under Article 42(1) of the Naval, Military and Air Forces Etc (Disablement and Death) Service Pensions Order 1983.

3. Section 168(1) of the Pensions Act 1995 changed the position only for periods beginning on or after 19 July 1995. It therefore gave no legal basis for restoration between October 1977 and 18 July 1995. For the period from 19 to 31 July 1995, section 168 required the ended second marriage to be ignored when deciding whether a pension was payable, but did not itself confer an automatic entitlement.

4. The governing scheme still required a claim before an award could be made. Article 4 of the 1983 Order imposed that requirement. The only relevant exception, in Article 3B(3)(a), applied where the service member died in service; it did not apply because the first husband died after his service had ended. The same conclusion followed if the 2021 claim was governed by Article 35(3)(a) of the Naval, Military and Air Forces Etc (Disablement and Death) Service Pensions Order 2006.

5. The connection between the first husband’s death and his service established the potential entitlement to a war widow’s pension, but did not dispense with the claim requirement. The pension was therefore correctly payable only from the claim made on 1 August 1995.

• Upper Tribunal (Administrative Appeals Chamber): Appeal dismissed in [2023] UKUT 222 (AAC); the tribunal held that the Pensions Appeal Tribunals for Scotland had made no material error of law.
• Pensions Appeal Tribunals for Scotland: On 14 December 2022, in case PATS/E/22/0121, it refused the appeal and upheld the Secretary of State’s decision of 8 October 2021 rejecting the retrospective claim.