Death in Service Pension... need advice please

Discussion in 'Finance, Property, Law' started by peachey35, Apr 27, 2009.

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  1. Hi, hope this is the right forum?!?!? And apologies for the sensitive subject!

    My ex-partner died in Sept 07 (he was a serving soldier in Germany at the time), he was on duty, wearing his uniform and was driving a military vehicle from one place of work to another at the time of his death.

    We have a 3yr old daughter together. At the time of his death I was told by the RBL that along with the many other forms I filled out, that I needed to apply to the SPVA/AFCS for a Death in Service Pension on her behalf, this I did, but it has since been rejected due to the circumstances of his death (heart attack).
    I have since appealed against the decision, and I'm waiting to here about a date for an independant tribunal.

    My question is... how exactly do they decide wether he died in service? I have asked this question many a time to AFCS but not getting anywhere, they just keep saying his death is not as straight forward as if he was shot in Afghan. I feel like were being fobbed off by AFCAS to be honest.

    Any advice would be really appreciated.
  2. Some questions:

    Have you ever been visited by a War Pensions Welfare Officer? SPVA are automatically notified of any death in service of military personnel, and should automatically send out a Welfare Officer to assist with making a claim to a pension and any other benefit surviving dependents are entitled to. Note that you don't need to be married - being in a 'substantial relationship' is enough.

    Have you had anything in writing from SPVA?

    What did the Casualty Visiting Officer/Unit do to help?
  3. Hiya thanks for the reply...

    The welfare officer that was assigned to the next of kin was based up north, and couldn't/wouldn't travel to me so the SPVA sent a rep via my local British Legion branch with all the pension forms, my daughter has already had the standard pay out pension (sorry cant remember the name) but we were told by SPVA to apply for the DIS pension as well.

    Ive had no contact with the welfare officer for over a year, (major non-trust issues). I did ask for another WO but that was back in Oct and I'm still waiting lol Gave up on Welfare a long time ago!
    As the EX partner at the time of his death, the Army will not give me any help whatsoever as I'm not next of kin, his brother is. They wouldn't even confirm his death to me!

    The last written contact I've had with SPVA was Jan this year to say that my claim is now going to a tribunal, rang today and there's a back log, cant give me an answer yet as to when it will take place.

    As far as the Casualty VO.. never heard of them or from them! What do they do?

    The only answer I get is as before, AFCS are saying he didn't die in service because of the circumstances.. which is laughable, and extremely frustrating.
  4. Thanks for the info.

    Have you tried contacting your MP? Whilst an MP can't change a decision, a question from Parliament usually indicates to govt agencies that they need to get things right; at least you may get an answer to how long the backlog at SPVA is.

    The other point that occurs to me is that as your daughter is only 3 years old, you will legally be her representative, and so there should be no reason why the Army shouldn't assist you. Your daughter at least is your ex-partner's NOK.
  5. My MP wrote the the MOD back last year asking for my ex's medical records ie Autopsy report, sample results etc, to be released to my daughters consultant as she is undergoing heart checks now due to her dad's death.

    MOD refused any help as again they said I'm not next of kin. And at the time of his death, his family denied that she was his daughter, but my solicitor pointed out to to the WO that my ex was making CSA payments for her, if it wasn't for those payments, I'd still be locked in a legal battle with the family for any form of pension.

    It's not so much the backlog and how long before the Tribunal, I'm prepaired to wait for that, (I've been fighting this for nearly 19mths in total now) I just dont understand how they can say his child isn't entitled to the DISP, when he clearly did die in service... if you see what I mean???
  6. Peachey35,

    I am sorry that you are in this position. I have read your questions but have not, so far, been able to contribute. However, I can tell you something of my experience.

    I was involved in a similar case some years ago. However terrible you might think it is that the system considers that your ex did not "die in service", I regret that the rules were agreed a long time ago. I don't have them to hand, but I will try to find them.

    Let me try to explain: I was brought up in a world of "you are on duty for 24hrs a day..." and I was therefore shocked to find that the MOD and the DSS disagree. A friend died after a training accident but the MOD/DSS declared that he did not die "in-service". As an example of the mind-set of the lawyers, if a soldier dies in a road traffic accident on his way home at the weekend, has he died in-service? My understanding is that the system will consider that he has not died "in-service" unless there are extenuating circumstances.

    I have used the word "system" because this is not, strictly, an MOD issue, IMHO, because it is the Treasury and the DSS that pick up the bills.

    You have also explained that your ex's brother is the official NOK; is your ex named as the father on the birth certificate of your daughter?

  7. Hi Litotes
    Thanks for the reply...

    No, he wasn't named on the BC, he was on tour when she was born, and didnt get to see her until she was 4mths old, we had planned to add his name on but it just didnt get done.

    As far as this DISP it seems such a grey area that nobody really seems to know what circumstances can constitute a claim! I did manage to speak to the RBL today & also a solicitor who will represent me at the Tribunal. She has army background and advised me that our appeal will probably be turned down as few & far of these claims are successful..

    It all seems such a pointless waste of time & money to have a Pension that makes such random decisions regarding something so obvious! Or at least should be blatantly obvious! lol

    Maybe the more cases like mine that end up going to a tribunal, the more chance of the MOD/SPVA re-writing the rules, in favour of all families in these circumstances???

    Didn't think that 19mths on I'd still be battling the Army/MOD, I wont give up though! :)
  8. Peachey,

    I thought about sending this to you as a pm, but it is best delivered in an open forum because others may well disagree with my opinion, and it might make other soldiers, who find themselves in a similar situation, aware of the pitfalls of certain actions and inactions.

    If your ex isn't named on the birth certificate, I believe the MOD is following the current rules in dealing with the brother as NOK. I hesitate to write this but I think you will lose your case, as the MOD will argue that your ex had the opportunity to register as the father but, for whatever reason, did not do so. The MOD may also argue that, in the circumstances, you cannot prove that your ex was the father.

    However, IIRC, the partner and child of a soldier who was killed on ops in Sierra Leone did manage to claim against the MOD. I cannot remember the circumstances and details but I do remember that questions were asked in the House and that, subsequently, there was a change in the rules. You might try searching on the Web, but you might have to visit the local library to draw upon the microfilm copies of the Times or Telegraph for that period.

    I realise that your ire is directed against the MOD because it is the MOD that is facing you. But to blame the MOD would be wrong; I believe that such rules are Treasury driven and direction therefore comes from the Government of the day. As VB suggested, you may need to speak to your MP.

    I am desperately sorry to hear that you are in such a situation but can offer only moral support. Good Luck!

    Guys, if you are reading this because you are in a similar position, do something about it! Don't think that it won't happen to you (death, that is) and don't leave your family to pick up the bits!

  9. I too have full sympathy for the situation your daughter finds herself in and, although i have nothing concrete to assist your daughter I do have a couple of observations.

    It was always my understanding that death in service was a bit of a misnomer and should actually read death due to service, there being a subtle difference. If you are ordered to swim across a river and you drown then that is DIS. If you are off duty and decide to swim the same river and you drown then that is not DIS. I assume the MoD are taking the stance that the heart attack was not caused by his military service but was either genetic or through self abuse.

    Secondly I fail to understand why you didn't put your ex-partner on the birth certificate if he was the father. The birth certificate is a matter of fact not of circumstance. It doesn't matter whether you were together or not at the time, he is the father and has a right to be on the certificate of birth. If he objected to that then he would have had the right to go to court to have his name removed upon proof that he was not the biological father (I'm not saying he wasn't I'm saying that is the only basis for his name being removed).

    Your daughter is his NoK no matter whom he has nominated on his Army forms. If he died intestate then I assume that she has the right to make a claim against his estate, if he left a will which excluded her I assume she has the right to challenge that will. Due to her tender age then the court might decide that a trust should be formed to administer her affairs.
  10. Peachey,

    Markintime makes a good point which might help your case, and re-reading your posts, I realise that I missed an earlier comment.

    Firstly, have you taken legal advice on whether your daughter has a claim on your ex's estate?

    Secondly, does the MOD know that the CSA had been involved and, presumably, reached an agreement with your ex?

  11. Markintime that just made me LOL....

    Firstly, A father has to be physically present at the Registry office to add his name onto a BC within (if I remember rightly) 6 weeks of the birth, as I said in my post he was on Tour!
    Secondly, when he did see her at 4mths of age he had 4 days with us, on the 3rd day he was arrested for assault & cautioned (not going into details on here!) so the appointment I had made with the registry office to then add his name in his presence, went out the window.
    He went back to Germany a few days later, and the next time I saw "him" was at his funeral 14mths later. I asked him numerous times to take responsibility and come over and add his name on, unfortunately he didn't feel it was important, so his name was never "removed" HE never added it!

    "I assume the MoD are taking the stance that the heart attack was not caused by his military service but was either genetic or through self abuse."
    I agree with this, the Death Cert, is inconclusive as to why he suffered a heart attack, I've even spoken to the guy who carried out the autopsy. The decision to decline the children (3 in total, inc 2 ex-wives, and me) is based and I quote "on probabilities". The Army nor medical proffs cant say why he died, wether his job was or was not the cause, basically they have decided his job wasn't to blame therefore the DIS pension is not relevant, my argument in the appeal is, that the cause of his death is inconclusive and the SPVA are not in a postion to rule out his work as a factor to his death, which is why I've appealed.

    "Your daughter is his NoK no matter whom he has nominated on his Army forms. If he died intestate then I assume that she has the right to make a claim against his estate, if he left a will which excluded her I assume she has the right to challenge that will. Due to her tender age then the court might decide that a trust should be formed to administer her affairs."

    Your wrong ...My daughter and her 2 half siblings are not NOK they are his dependants there is a huge difference between the two. The army would not acknowledge the children only his Bro as NoK all his personal items were packed and sent to his bro. My daughter has not received 1 item from her fathers estate. All I have for her are 4 photo's of him & her together which I took. I've asked for items for her from the bro, and my requests have been ignored, For me to take the family to court for personal items, would cost me a huge amount of money, which I'm afraid as much as I would love my daughter to have some of her dad's medals and Army pics etc, is something financially I cant afford to fight for.

    As far as the will is concerned, yes he did have one, BUT it was null and void as it was relevant to when he was married to his 1st wife, who he had since divorced. This in itself caused a major problem.

    My daughters parentage is not an issue here, the fact that a single CSA payment had been processed and taken directly from his salary a month before his death, without being contested by my ex, was proof enough that he is her biological father, if it wasn't for that 1 payment I would have had to have taken a court order to stop the cremation taking place and wait god knows how many months for a Paternity test to be carried out on his body, something which I was prepaired to have to do, but certainly not happy about it, but because the family came out with "she's not his daughter" I was determined to prove her parentage, thankfully the family agreed she was his, but only because of the CSA payment.

    Would I like my ex-s name on her BC??? YES WITHOUT DOUBT! for her more than for me, I even made enquiries of having his name added after his death, but of course that was a non starter. The fact that she was given the original pension based on a single CSA payment is not something I'm proud of to be frank, I would have felt much more happier if her Father had taken legal responsibility for her ie BC & Will.

    If there are soldiers out there who have children, then make your will, & keep them upto date. Take responsibilty for what could happen to your dependants in the event of your death, especially if your no longer in a relationship with the mum.

    I wouldn't wish what I've had to endure the last 19mths on my worst enemy.
  12. Are the 2 ex-wives trying to claim the DIS pension as well as you?

    Sounds like a bit of a difficult one, if there are 3 different people (all ex's) all trying to claim, plus his name not being on the birth certificate and the fact he died from a heart attack rather from it being service related.

    Good luck to you though, hopefully the right decision will come about.
  13. I dont know if they have both claimed for the DISP, but AFCS confirmed that 1 other has appealed against the decision, so clearly one other is involved.

    My Ex not being named on the BC is not an issue for this appeal, all 3 children have received a lump sum which was the main pension & they have a monthly payment inc child allowance pension, that was issued within a few months of ex's death.
    The DISP is completly seperate from the others, although applied for at the same time as the others (from what I can remeber).