8. NHS advice
8.1 Contributory negligence
The 2003 Act allows for a reduction in the Certificate of NHS Charges to take account of contributory negligence in cases where the amount of compensation paid to the claimant has been reduced to reflect their proportion of responsibility for their injuries. The provision is not retrospective and only applies to incidents that happened after 29 January 2007. This provision only relates to the NHS Charges and is not part of The Recovery of Benefits Act 1997 – the recoverable benefits cannot be reduced in the same way.
The following legislation covers Contributory Negligence reviews:
- The Personal Injuries (NHS Charges) (General) Regulations and Road Traffic (NHS Charges) (Amendment) Regulations (S.I. 2006 No. 3388)
- The Personal Injuries (NHS Charges) (Reviews and Appeals) and Road Traffic (NHS Charges) (Reviews and Appeals) (Amendment) Regulations 2006 (S.I. 2006 No. 3398))
- Section 153 (10) of The 2003 Act
8.2 Contributory negligence – the process
A claim for a reduction in the Certificate of NHS Charges is defined as a qualifying claim where there is an agreement by the injured person that damages payable under the terms of settlement are to be reduced to reflect their share of responsibility for the injury and a final compensation payment is made.
CRU need evidence that the injured person has accepted this as part of the settlement terms. Therefore a revised Certificate of NHS Charges can only be applied for when the claim is fully settled.
There are specific review regulations regarding contributory negligence claims. These mean that the evidence in support of the review must be sent to CRU within three months of the claim becoming a qualifying claim, unless the reduction for contributory negligence resulted from a Court Order. In most cases this will be three months from the date of the final compensation payment to the injured person.
Upon receipt of a review request CRU will check the evidence and, if acceptable, issue a new Certificate of NHS Charges stating the revised amount of charges owed. When notifying CRU of contributory negligence some compensators work out the reduction before requesting the review and send in the charges with their evidence.
Please note if doing this that the percentage of the contributory negligence will be rounded up or down to the nearest full percentage point. If a claimant has accepted 1/3 of the responsibility the Certificate of NHS Charges would be reduced to 67% of the total. If the claimant accepted they were 2/3 responsible, the Certificate of NHS Charges would be reduced to 33%.
This is to make the calculation of charges as straightforward as possible as the amount owed would vary depending upon whether it was calculated as 66.7%, 66.67% or 66.667%. This could lead to a variation in the amount owed, depending upon the original NHS charge.
We consider this to be fair to both the compensator and the trust that provided treatment as the charges may be rounded up or down. Where the compensator does not round to the nearest full percentage point we will need to issue a refund or request further payment.
8.3 Contributory negligence – evidence required
Before CRU can review the Certificate of NHS Charges, we must be satisfied that the claimant has accepted:
- that they were partly responsible for their injuries, and
- a reduction in their compensation due to their responsibility
Where the issue of contributory negligence was settled outside of the Court process, the legislation states that CRU must be sent a signed report. This should include a statement that it is agreed by the claimant that their damages are to be reduced to reflect their share of the responsibility. It also needs to clearly demonstrate how much the damages have been reduced by. This can either show the:
- percentage of responsibility accepted, or
- amount that:
- would have been paid had there been no contributory negligence, and
- was paid due to the contributory negligence.
As CRU reduce the NHS charges by the same proportion as the reduction in damages, this proportion must be clearly demonstrated. We cannot allow the review where:
- the amount or percentage of the reduction is not documented, or
- there is no signed acceptance from the injured person’s side.
CRU try and be flexible in the evidence we accept and will consider, for example, a report detailing the:
- agreement signed by both sides, or
- offer and acceptance letters that clearly show the:
- acceptance of responsibility by the claimant, and
- amounts or percentage of agreed responsibility involved.
Please note that the legislation stipulates a signed report. Therefore CRU cannot accept notes from a telephone call or email exchanges (unless printed and signed by the claimant to demonstrate acceptance of the terms). If you intend to request a reduction in the Certificate of NHS Charges, you need to consider how the agreement with the claimant is documented.
Please note that the evidence must refer to a reduction in the payment of damages on account of the claimant’s share of responsibility for the accident. CRU cannot allow the review where:
- a reduction in damages has been agreed in order to speed up the negotiation process or
- it is stated that the claimant does not accept any blame.
The legislation allows for a reduction only in cases where the claimant has agreed, in a fair manner, that they were partly responsible. Where it is apparent that no degree of responsibility has been accepted by the claimant the review request will be disallowed.
In response to customer feedback CRU have produced an NHS Charges Contributory Negligence Template that compensators can use when their negotiation process has not produced the required evidence. Where the information is provided and it is signed by the claimant or their representative (it cannot be signed electronically), it should provide satisfactory evidence to allow CRU to review the NHS Certificate. Please note that it is not mandatory to use this form. CRU continue to offer compensators the flexibility in providing their evidence as long as it meets the requirements contained in Section 3 of The Personal Injuries (NHS Charges) (General) and Road Traffic (NHS Charges) (Amendment) Regulations 2006
8.4 Goodwill/ex gratia payments
Liability to pay NHS charges arises where a compensation payment is made in consequence of an injury, whether physical or psychological.
The term compensation payment is defined as a payment made:
- by, or on behalf of, a person who is, or is alleged to be, liable to any extent in respect of the injury, or
- in pursuit of a compensation scheme for motor accidents.
The term includes payment of costs only, and payment in money’s worth, which would include, for example:
- gift vouchers
- providing physiotherapy
The legislation is clear that liability to pay NHS charges arises in cases where there is an allegation of liability for an injury and any form of payment follows. Legislation explicitly states that:
- liability to pay NHS charges arises from making voluntary payments, and
- it is irrelevant whether compensation payments are made with or without an admission of liability.
Section 150 of the 2003 Act applies.
The Explanatory Notes which accompany the act state that ex gratia payments are not covered by the scheme. The definition of an ex gratia payment is a payment where there could be no liability in law to make a compensation payment. It would include scenarios such as diplomatic immunity or personal claims against the Queen.
Payments made in cases where there could be a liability in law (as opposed to fact) are therefore not ex gratia cases, and NHS charges are payable. A payment made whilst denying liability is not considered to be an ex gratia payment and liability to pay NHS charges would be incurred.
8.5 Interim compensation payments
When a compensator makes a compensation payment they will be liable to repay any NHS charges incurred up to the date of that payment. The legislation states that liability to pay NHS charges is triggered by making a compensation payment. It does not specify a final compensation payment. Section 150 of The 2003 Act refers.
8.6 Fatal accidents & The Fatal Accidents Act 1976
For accidents which occurred on or after 29 January 2007, NHS charges will not be recoverable for fatal accidents where compensation has been paid solely in accordance with The Fatal Accidents Act 1976. However, if compensation (or an element) was paid under The Law Reform (Miscellaneous Provisions) Act 1934, there will be a liability to pay NHS charges.
As CRU will not be aware of the Act that the claim is being made under, we will always issue a Certificate of NHS Charges in these cases. You will need to notify CRU if you think that NHS Charges are not payable and provide the documentation which demonstrates that the compensation payment was made solely under The Fatal Accidents Act 1976. CRU will not be able to review the NHS certificate without this confirmation.
The Law Reform (Miscellaneous Provisions) Act 1934 allows claims to be made on behalf of the deceased’s estate. These may have been made for:
- pain, suffering and loss suffered by the deceased, and
- loss of earnings and cost of care prior to their death.
The Fatal Accidents Act 1976 gives an independent right of action to relatives or ‘dependants’ of the deceased. This will typically involve things like the costs incurred or loss of income as a result of the death. The compensator will need to demonstrate that any payment was made solely under the Fatal Accidents Act 1976 if they feel that the NHS charges are not recoverable. NHS charges will be recoverable where no evidence can be provided of the Act under which payment was made.
Regardless of the Act under which the compensation payment falls no NHS charges are payable where the injured person has been declared dead on arrival at the hospital.
8.7 Frequently asked questions
Q – Who is liable to pay NHS charges?
A – From the 29 January 2007 anyone who is, or is alleged to be, liable for an injury (physical or psychological) and then makes a compensation payment is liable for the NHS charges, regardless of what that payment is for. This applies to individuals as well as businesses and other organisations. The only exceptions are where there could be no liability in law (diplomatic immunity etc.) and NHS Trusts where they also provided the treatment.
For incidents prior to 29 January 2007, only compensation payments involving the use of a motor vehicle on the road would attract the NHS charges. Cases registered as Employer and Public liability claims may incur liability if the use of a motor vehicle was involved, depending upon the type of insurance policy from which compensation was paid. Further information is contained in section 8.8.
Q - Will the claimant make up the difference in cases where the Certificate of NHS Charges has been reduced to reflect contributory negligence?
A – No. The hospital that provided treatment receives a reduced payment. CRU therefore need to see the appropriate evidence to show why the payment has been reduced.
Q - Does contributory negligence apply to CRU benefits?
A – No. The provision to reduce NHS charges to reflect the claimant’s share of responsibility is only contained in the Health and Social Care (Community Health Standards) Act 2003 and therefore does not affect CRU benefits. It only applies to NHS charges for incidents occurring on or after 29 January 2007.
Q – Why can’t emails or telephone conversation notes be used as evidence in contributory negligence cases?
A – The relevant legislation stipulates that CRU must have a signed report detailing the terms of the agreement and that those terms were agreed in a fair and open manner. Email and telephone notes do not constitute a signed report.
Q – The claimant accepted they were 1/3 responsible for their injuries and we paid accordingly. Why did you ask for more money?
A – Contributory negligence figures are subject to rounding up or down to the nearest full percentage point. The CRU system automatically recognises a shortfall or overpayment and issues a notification accordingly.
Q – Why did I not receive my Certificate of NHS Charges in 28 days?
A – There is no legislative time limit for the issue of the Certificate of NHS Charges. This is because it can take significantly longer for CRU to complete their enquiries, especially where CRU need to contact the claimant for further information if the NHS Trust have difficulty in tracing the treatment provided.
CRU may also be aware of a future operation or ongoing treatment related to the incident and would therefore refrain from issuing the NHS Certificate until complete or, if sooner, when a final compensation payment was made. The Certificate of NHS Charges is normally valid for the life of the claim, unless CRU discover any further information that should have been provided earlier, and therefore CRU need to ensure it is accurate before it is issued.
A Certificate of NHS Charges is not required prior to settlement as the NHS charges cannot be offset against the compensation payment. However if the claim is settled without processing a Certificate of NHS Charges you must apply for one immediately, if you have not already done so.
You can help CRU speed up the process by providing relevant and accurate information when registering the claim. Claims should be notified to CRU as soon as you receive them. If any hospital details are established after this, then they must be forwarded to CRU immediately.
Q – I have only received a 'nil' benefits Certificate. Does that mean there are no NHS charges even though I notified CRU of a hospital?
A – No. Because the recovery of benefits and the recovery of NHS charges are covered by separate legislation you will receive separate Certificates. A 'nil' Certificate relates to the benefits only. A Certificate of NHS Charges will be issued in all cases where the date of incident was after 29 January 2007 (except for disease claims).
Q – I have not received my Certificate of NHS Charges. What should I do?
A – As stated above a Certificate of NHS Charges will be issued for all cases registered with CRU, other than disease claims. However, the NHS Certificate may take longer to issue than the benefits Certificate. Therefore, you should contact CRU for an update on the NHS Certificate to see if it has been issued or if enquiries are ongoing. This is particularly the case where you have notified CRU of NHS treatment. We recommend you do this before you close your file.
8.8 Road traffic accidents occurring prior to 29 January 2007
The Road Traffic (NHS Charges) Act 1999 (“The 1999 Act”) applies to an accident:
- occurring prior to 29 January 2007,
- where a compensation payment was made on or after 05 April 1999,
- an injury or fatality is suffered as a result of the use of a vehicle on a road, and
- treatment was received at an NHS hospital.
This definition could include some claims registered as Employer or Public liability.
A compensator must repay the NHS charges where they are, or are alleged to be, liable for the incident and they make a compensation payment (including an interim payment).
In accordance with Section 1 (3) of the 1999 Act, a compensation payment is defined as a payment made:
- by an authorised insurer under or in consequence of a policy issued under Section 145 of the Road Traffic Act 1988
- by the owner of the vehicle, in a case where the vehicle is one in relation to the use of which a security under Part VI of that Act is in force
- by the owner of the vehicle who has made a deposit under that Part, or
- in pursuance of a compensation scheme for motor accidents.
NHS exempt payments
In accordance with Section 144 (2) of the Road Traffic Act 1988 , the following categories may be excluded from repayment of NHS charges:
- any compensation payment made by a compensator who has an exception from the requirement to hold third party insurance for their motor vehicles,
- any compensation payment made:
- in pursuance of a compensation scheme for motor accidents by the Motor Insurers’ Bureau, and in respect of an accident occurring before 5 April 1999;
- by members acting as Domestic Regulations insurers if a declaration is held under Section 152 of the Road Traffic Act 1988 and the accident is before 5 April 1999.
Contributory negligence
The provision is not retrospective and only applies to incidents occurring on or after 29 January 2007.
Reviews and appeals
For road traffic accidents which occurred before 29 January 2007, there is no time limit to make a request for a review of NHS charges.
An appeal for incidents which occurred before 29 January 2007 must be made within three months of the date on which the compensator made full repayment of NHS charges to CRU. Repayment of charges prior to appeal cannot be waived.
Fatal accidents
NHS charges are recoverable in fatal accident cases occurring prior to 29 January 2007 including cases where a compensation payment is made in accordance with the Fatal Accidents Act 1976.
NHS charges will not be levied when the victim was certified dead on arrival at the NHS hospital.
Foreign compensators
Where the accident took place on a road in Great Britain involving a foreign compensator, charges will not be payable where compensation is paid from a policy issued outside of Great Britain. Where an accident occurred abroad it is unlikely that NHS charges will be recoverable if NHS treatment was involved, as the accident is likely to involve a foreign compensator from outside of Great Britain. NHS treatment received by a foreign national in the UK could attract NHS charges where compensation was paid from a Great Britain based insurance policy.
