Bernard Durkan (Kildare North, Fine Gael)
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39. To ask the Taoiseach and Minister for Defence arising from replies to previous Parliamentary Questions on the matter, if progress has taken place in respect of cases whereby serving members of the Defence Forces, injured while on duty, have received compensation in the courts, which on reaching pension age, is being recouped through a reduction in their retirement pensions; if this represents an attempt to take back what was awarded by the courts; and if he will make a statement on the matter. [21944/23]

Micheál Martin (Cork South Central, Fianna Fail)
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The Army Pensions Acts provide for the grant of pensions and gratuities to former members of the Permanent Defence Force in respect of permanent disablement due to a wound or injury attributable to military service (whether at home or abroad) or due to disease attributable to or aggravated by overseas service with the United Nations.

Section 13(2) of the Army Pensions Act, 1923, as amended, provides that “Any compensation which may be received from or on behalf of the person alleged to be responsible for the act which caused the wounding ... may be taken into consideration in fixing the amount of any pension, allowance or gratuity which might be awarded under this Act to or in respect of such person and if such compensation is received after the award of any such pension or allowance the Minister may review the award and, having regard to the amount of such compensation, either terminate or reduce the amount thereof.”

The underlying objective of Section 13(2) is to prevent double compensation in respect of the same disablement. Compensation of the kind in question would usually result from a civil action for damages against the Department of Defence, but compensation received from any other source is not excluded.

The provisions do not apply to disability pension cases related solely to disablement due to disease attributable to or aggravated by overseas service with the United Nations. They apply only to wound pension cases involving wound or injury, or to disease cases where the disease is secondary to a wound or injury.

There have been a number of key cases both at Supreme and High Court levels involving Section 13(2), and the procedures in place in relation to individual cases take account of these judgements. The Courts, in various judgements, have upheld the Minister’s statutory right to take into consideration that part of the damages which can properly be regarded as general damages or that part which can properly be regarded as referable to loss of earnings, as he considers proper.

The reduction of these pensions is provided for under legislation and is done on foot of a bona fidedecision by the Minister after careful consideration of the specific circumstances of the individual case. The person or his/her solicitor is advised of the statutory provisions and of the potential implications of his/her application. Representations are invited regarding, in particular, the person's circumstances; details of the compensation actually received; and whether there are any special or extenuating circumstances involved. On receipt of representations, cases are submitted to the Minister for decision, setting out the relevant facts of the case, including details of the representations made and an actuarial assessment (in pension cases). Full account is then taken of the representations made and of the actuarial assessment before a final decision is made personally by the Minister.

The application of this Section 13(2) process is a statutory provision and there are no plans to discontinue or review the application of it.