Recovery of benefits and lump sum payments and NHS charges: technical guidance

Question 1

1. Terms

Accepted Answer

Term	Explanation
Certificate	Issued by CRU and tells the compensator which recoverable benefits and lump sum payments have been paid (or are likely to be paid) and the total amount to be repaid to the Secretary of State.
Certificate of NHS charges	Issued by CRU and tells the compensator whether NHS treatment was with or without admission to hospital, the number of admission days, ambulance charges and the amount to be repaid.
Compensation payment	Any payment made by way of compensation for an accident, injury or a disease (whether in money or in money’s worth).
Compensator	The person, who caused the accident, injury or disease, or, more commonly, their insurer.
Exempt payment	A payment specifically exempt from the provisions of the Social Security (Recovery of Benefits) 1997 Act, the Social Security (Recovery of Benefits) (Lump Sum Payments) Regulations 2008 and the Social Security (Recovery of Benefits) (Lump Sum Payments) (Amendment) Regulations 2014.
Health Service Hospital	A health service hospital within the meaning of the National Health Service Act 1977 or the National Health Service (Scotland) Act 1978.
Injured person	The person claiming compensation (also referred to as the claimant).
NHS treatment	Any treatment (including examination of the traffic casualty) other than those described in Section 6 of the Road Traffic (NHS Charges) Act 1999 (including any examination of the injured person) other than –see Part 3 of the Health and Social Care (Community and Health Standards) Act 2003, section (7).
Recoverable benefits	Social security benefits (and Statutory Sick Pay paid before 6 April 1994) listed in Schedule 2 of the Social Security (Recovery of Benefits) Act 1997 and paid in the relevant period.
Recoverable lump sums	Payments made under the Pneumoconiosis etc. (Workers’ Compensation) Act 1979, the 2008 Diffuse Mesothelioma Scheme, the 2014 Diffuse Mesothelioma Payment Scheme (DMPS) or an ex-statutory payment that was paid because the person did not qualify for a payment under the 1979 Act.
Relevant period	The period in respect of which benefits and NHS charges may be recovered.
Settlement date	The date on which the compensation payment is made in accordance with either the Social Security (Recovery of Benefits) Act 1997, the Road Traffic (NHS Charges) Act 1999 and the Health and Social Care (Community Standards) Act 2003 and the Health and Social Care (Community Health and Standards) Act 2003.
The Acts	The Social Security (Recovery of Benefits) Act 1997. In Northern Ireland (NI) the corresponding provisions may be found in The Social Security (Recovery of Benefits) (Northern Ireland) Order 1997.
The NHS Acts	The Road Traffic (NHS Charges) Act 1999. Part 3 of the Health and Social Care (Community Standards) Act 2003 – In Northern Ireland the corresponding Act is the Health & Personal Social Services Act (Northern Ireland) 2001. The Health and Personal Social Services (Joint Committee for Commissioning) Order 2007.

Question 2

2. Introduction

Accepted Answer

This guide (Z1) is for general guidance only and should not be regarded as a substitute for the legislation contained in the Social Security (Recovery of benefits) Act 1997.

2.1 Background

CRU Great Britain (GB) operates primarily to deliver the following legislation: The Social Security (Recovery of Benefits) Act 1997, the Road Traffic (NHS Charges) Act 1999 and The Health and Social Care (Community Health and Standards) Act 2003.

The Social Security (Recovery of Benefits) Act 1997 introduced a recovery scheme with effect from 6 October 1997. The scheme placed the liability to repay social security benefits on the compensator and not the injured person. Part IV of the Social Security Administration Act 1992, Part IV of the Social Security Administration (Northern Ireland) 1992 and Sections 2 (1)(1A)(3) and (6) of the Law Reform (Personal Injuries) Act 1948 were repealed.

The Social Security Act 1998 introduced changes to the Social Security (Recovery of Benefits) Act 1997 which provide clearer grounds for review, 2 new grounds for appeal and for appeals to be heard by appeal tribunals instead of Medical Appeal Tribunals (MATs). These provisions are effective from 29 November 1999.

The Child Maintenance and Other Payments Act 2008 introduced changes to the Social Security (Recovery of Benefits) Act 1997, which provides for the recovery of lump sum payments. These changes are effective from 1 October 2008, and apply to all cases settled on or after that date.

The Mesothelioma Act 2014 introduced changes to the Social Security (Recovery of Benefits) Act 1997, which provides for the recovery of lump sum payments made under the Diffuse Mesothelioma Payment Scheme. These changes are effective from 1 July 2014.

On 5 April 1999 the Road Traffic (NHS Charges) Act 1999 came into force. This Act allows CRU to recover NHS hospital charges arising from road traffic accidents where a compensation payment is made on or after 5 April 1999.

On 2 April 2001 the Health and Personal Social Services Act (Northern Ireland) 2001 was introduced and allows for the recovery of health services charges by CRU in Northern Ireland (NI).

On 29 January 2007 Part 3 of the Health and Social Care (Community Health and Standards) Act 2003 which allows for the recovery of the costs of providing treatment to an injured person in all cases where that person has made a successful personal injury claim against a third party was commenced.

The equivalent legislation in Northern Ireland is The Recovery of Health Services NHS charges (Northern Ireland) Order 2006.

2.2 Who administers the Compensation Recovery Scheme (CRS)?

The CRS is administered by the Compensation Recovery Unit (CRU), which is part of the Department for Work and Pensions (DWP).

The Compensation Recovery Unit Northern Ireland (NI) is part of the Department for Communities (DfC).

Question 3

3. Overview

Accepted Answer

Parts 4 to 9 of this guide explains the CRS in more detail including how the scheme applies to lump sum payments paid under the Pneumoconiosis etc. (Workers’ Compensation) Act 1979, part 4 of the Child Maintenance and Other Payments Act 2008 and the Mesothelioma Act 2014.It also provides information on the review and appeal process.

Parts 10 to 12 of this guide explains the NHS charges scheme in more detail and provides details on the review and appeal procedures. The NHS30 appeal form may be found at the back of this guide.

Part 13 of this guide is for miscellaneous information including disclosure of information, data protection and electronic communications.

The law allows CRU 4 weeks to issue Certificates. The period is 4 weeks from the day following the day on which an application for a Certificate is received provided the application contains sufficient information to enable the Certificate to be issued.

Certificates of NHS charges will be issued as soon as is reasonably practicable. However our aim is to issue them as soon as possible.

CRU aims to acknowledge all claim notifications made on form CRU1 within 12 working days and general correspondence within 10 working days.

3.1 If you want to contact CRU

Please tell CRU the CRU reference number if you know it. It consists of 3 letters followed by 3 numbers, e.g. XYZ-123. This information will help us to deal with your enquiry more quickly.

If you are unable to provide the CRU reference number please give the injured person’s full name, address, date of birth and, where known, their National Insurance (NI) number. If the case you are enquiring about is located on one of CRU’s specialist areas, your call may be transferred to that area.

CRU’s normal business hours are 8am to 5pm, Monday to Friday.

Further information may be obtained from the guides below:

If the case is being handled by CRU Northern Ireland, please read all references to DWP in this guide as Department for Communities (DfC) and all reference to NHS as Health Services.

If the case is specific to a NHS Trust in Scotland please read all reference to the Secretary of State in this guide as the Scottish Minister.

Get the contact details for case specific NHS enquiries.

You can read more about the NHS Injury Cost Recovery Scheme on the Department of Health website, and the Health and Social Care (Community Health and Standards) Act 2003 on the Office of Public Sector Information website.

3.2 Scheme for residents of the Isle of Man

A separate scheme exists for residents of the Isle of Man. Any enquiries should be addressed to:

Social Security Division
Markwell House
Market Street
Douglas
Isle of Man
IM2 2RZ

Find more information on the Isle of Man Government website.

Question 4

4. The law

Accepted Answer

The law on the Compensation Recovery Scheme is contained in:

The Social Security (Recovery of Benefits) Act 1997
The Social Security (Recovery of Benefits) Regulations 1997 as amended by paragraphs 148-152 of Schedule 7 to the Social Security Act 1998
The Child Maintenance and Other Payments Act 2008
The Social Security (Recovery of Benefits) (Lump Sum Payments) Regulations 2008
The Mesothelioma Act 2014
The Social Security (Recovery of Benefits) (Lump Sum Payments) (Amendment) Regulations 2014
The Social Security and Child Support (Decision and Appeals) Regulations 1999, regulations 9, 9ZA and 30-58
The Social Security (Recovery of Benefits) (Northern Ireland) Order 1997
The Social Security (Recovery of Benefits) (Northern Ireland) Regulations 1997
The Social Security Act 1998

The main provisions of the Scheme are that:

a person should not be compensated twice over in respect of the same accident, injury or disease
a compensator who is, or is alleged to be, liable to any extent for the accident, injury or disease, makes a compensation payment, agreed on or after 6 October 1997 and listed benefits and lump sum payments have been paid (or are likely to be paid), to, or for, the injured person in respect of an accident, injury or disease. Where a payment was made on or after 6 October 1997 in accordance with a Court Order or agreement made before that date, the provisions of the Social Security Administration Act 1992 and the Social Security (Recoupment) Regulations will continue to apply
a compensator who makes a compensation payment after 1 October 2008 is also liable to repay any lump sum payments paid under the Pneumoconiosis, etc. (Workers’ Compensation) Act 1979 and Part 4 of the Child Maintenance and Other Payments Act 2008
a compensator who makes a compensation payment after 1 July 2014 is also liable to repay any lump sum paid under the Mesothelioma Act 2014
the Scheme applies in the UK or elsewhere, regardless of where the compensator is based, or where the accident occurred
the 2008 Diffuse Mesothelioma Scheme applies to those people who have contracted diffuse mesothelioma as a result of asbestos exposure in the UK
the 2014 Diffuse Mesothelioma Payment Scheme will make a payment to certain individuals who contracted mesothelioma through their employment and are unable to trace their employer or insurer to obtain civil damages
no person shall make a compensation payment (other than an exempt payment) without first applying to CRU for a Certificate. The compensator will be liable to pay DWP an amount equal to the total amount of the recoverable benefits. Lump sum payment recovery cannot exceed the amount of compensation paid.
CRU must issue the Certificate within 4 weeks from the date of receipt of a request which contains all the required information
if after a Certificate has been issued, CRU become aware that a recoverable lump sum payment has been paid, a revised Certificate will be issued to include the lump sum payment amount and will supersede all previous Certificates
under the provisions of the Social Security (Recovery of Benefits) Act 1997, the Social Security (Recovery of Benefits) (Lump Sum Payments) Regulations 2008 and the Social Security (Recovery of Benefits) (Lump Sum Payments) (Amendments) Regulations 2014, the compensator - the person who caused the injury or, more commonly, their insurer - is liable both to pay damages to the injured person and to pay benefitsnd and lump sum payments to the Secretary of State for Work and Pensions. In certain circumstances it will be possible for the compensator to deduct some or all of the amount they have had to pay to the Secretary of State from the gross compensation award. This is known as ‘offsetting’.
where the amount of compensation relating to a particular head of compensation is less than the amount of the corresponding benefit, the compensator is still liable to repay the total amount of benefits shown on the Certificate
under the provisions of the Social Security (Recovery of Benefits) (Lump Sum Payments) Regulations 2008 and the Social Security (Recovery of Benefits) (Lump Sum Payments) (Amendments) Regulations 2014 the compensator must reduce the general damages element of the compensation award before reducing the special damages element of the award
under the provisions of the Social Security (Recovery of Benefits) (Lump Sum Payments) Regulations 2008 and the Social Security (Recovery of Benefits) (Lump Sum Payments) (Amendments) Regulations 2014, if the amount of compensation is less than the lump sum payment CRU can only recover an amount up to the equivalent of the gross compensation award
under the provisions of the Mesothelioma Act 2014 any compensation payment made under the Diffuse Mesothelioma Payment Scheme is to be reduced by the amount of the recoverable benefit
the compensator is liable to pay lump sum payments before paying recoverable benefits
when making a deduction under Section 8 or 8A to the 1997 Act, or when taking into account lump sum payment recovery under Regulation 12 or 12A of the Social Security (Recovery of Benefits) (Lump Sum Payments) Regulations 2008, the compensator must inform the injured person about the deductions
the compensator, the injured person or their representative may ask at any time for the Certificate to be reviewed
details of how to ask for the Certificate to be looked at again after the compensation claim is settled and all monies due have been paid to CRU

Notes

If the claim is settled for general damages only, the compensator is still liable to repay the full amount of listed benefits and lump sum payments shown on the Certificate (s6 of the Social Security (Recovery of Benefits) Act 1997).
The compensator cannot deduct any amount in respect of a listed benefit from the compensation awarded for general damages (pain and suffering). However they can deduct any amount in respect of a lump sum payment from any part of the compensation award, including general damages.
Lump sum payments must be offset against general damages (pain and suffering) first.
Attendance Allowance was replaced by the care component of Disability Living Allowance (DLAC) from 6 April 1992.
Mobility Allowance was replaced by the mobility component of Disability Living Allowance (DLAM) from 6 April 1992.
Personal Independence Payment (PIP) (living and mobility components) is being introduced in a phased approach from 8 April 2013 under the Welfare Reform Act 2012.
Unemployment Benefit and Income Support for unemployed people was replaced by Jobseeker’s Allowance on 7 October 1996.
Incapacity Benefit replaced Sickness and Invalidity Benefit from 13 April 1995.
Statutory Sick Pay – 100% of SSP paid before 6 April 1991 and 80% of SSP paid from 6 April 1991 to 5 April 1994 is recoverable. Payments made after 6 April 1994 are no longer subject to recovery.
Disabled Persons Tax Credit, now Working Tax Credit, replaced Disability Working Allowance from 5 October 1999.
No new or non-linking claims to Severe Disablement Allowance (SDA) may be accepted with an entitlement date after 6 April 2001. Customers currently in receipt of SDA will remain entitled as long as they continue to satisfy the qualifying conditions.
Employment and Support Allowance replaced Incapacity Benefit, and Income Support on the grounds of incapacity, for all new claims from 27 October 2008.
Universal Credit is being introduced in a phased approach from 29 April 2013 under the Welfare Reform Act 2012.
State Pension is not a recoverable benefit. However any of the benefits listed above which continue to be paid after retirement age will be subject to recovery.
Where a lump sum payment has been made to dependants of P and the compensator is making a compensation payment in respect of P under the Fatal Accidents Act to those dependants, CRU will recover the lump sum amount equal to the amount of compensation paid to the dependants.
Pensions awarded by the Service Personnel and Veterans Agency are not a recoverable benefit, but may be adjusted to take account of a compensation payment.
Bereavement benefits are not recoverable however any other benefits listed in Schedule 2 to the Social Security (Recovery of Benefits) Act 1997 which have been paid to the bereaved person may be recoverable.

4.1 The relevant recovery period

The period in respect of which benefits, listed in Schedule 2 to the 1997 Act, may be recovered by DWP begins on:

the day following an accident or injury or
in disease cases, the date that a listed benefit as shown in Schedule 2, is first claimed in consequence of the disease

The period ends on:

the day a compensation payment is made in final discharge of a claim, or
the date an agreement is made between the compensator and injured person under which an earlier compensation payment is treated as having been made in final discharge of any claim, or
the date 5 years after the relevant period begins, whichever comes first

‘The relevant period’ is defined in Section 3 of the Social Security (Recovery of Benefits) Act 1997.

The relevant period does not apply to lump sum payments made under the Pneumoconiosis etc. (Workers’ Compensation) Act 1979 or the 2008 Diffuse Mesothelioma Scheme.

4.2 Listed benefits recoverable under the 1997 Act

Compensation in respect of loss of earnings during the relevant period may be reduced where the following benefits have been paid to meet the same need:

Disablement Pension payable under section 103 of the 1992 Act (also known as Industrial Injuries Disablement Benefit)
Employment and Support Allowance
Incapacity Benefit
Income Support
Invalidity Pension
Invalidity Allowance
Jobseeker’s Allowance
Reduced Earnings Allowance
Severe Disablement Allowance
Sickness Benefit
Statutory Sick Pay paid before 6 April 1994
Unemployability Supplement
Unemployment Benefit
Universal Credit

Compensation in respect of cost of care may be reduced where the following benefits have been paid during the relevant period:

Attendance Allowance
care component of Disability Living Allowance (DLA Care)
Disablement Pension increase for Constant Attendance Allowance
Exceptionally Severe Disablement Allowance
living component of Personal Independence Payment (PIP L)

Nursing care and attendance (including holiday or respite care) and the inability to cook may fall within Schedule 2.

Compensation in respect of loss of mobility may be reduced where the following benefits have been paid during the relevant period:

Mobility Allowance
mobility component of Disability Living Allowance (DLA mobility)
mobility component of Personal Independence Payment (PIP M)

Travel to hospital for treatment and additional costs of travel that may fall within Schedule 2 include:

vehicle costs
powered wheelchair costs
costs of adaptations to transport
taxi and bus fares (where paid as a result of accident, injury or disease)
increased cost of a car
additional costs incurred for holiday travel

Payment into court forms require the compensator to list the benefits which have been offset against the above heads of compensation.

Damages not within Schedule 2

Actuarial evidence and related matters
Breakdown of marriage
Investment or management advice
Cost of future care
Court protection fees
Guide dog
Hospital visits other than for treatment
Loss of amenities of life
Loss of benefits associated with injured person’s work
Loss of carrying out DIY
Loss of congenial employment
Loss of expectation of life and bereavement
Loss of financial interest
Loss of future earnings
Loss of future mobility
Loss of housekeeping capacity
Loss of leisure
Loss of marriage prospects
Loss of pension rights
Loss of privacy
Loss of society
Loss of specific enjoyment
Loss of use of motor car
Loss on the labour market
Loss of future earnings
Medical expenses (not included in cost of respite or nursing care and attendance)
Paid help, gardener or cleaner
Pain and suffering
Second home on breakdown of marriage
(Smith v Manchester)
Special appliances (except as mentioned in loss of mobility)
Special diet
Special accommodation

The above list is not definitive, nor is it an interpretation of the law. It is for general guidance only, and should be treated as such.

Where the amount of compensation in respect of a particular head of compensation is less than the amount of a listed benefit to be recovered, the compensator is liable to pay the difference. They may not reduce payment against any other head of compensation to take account of the recovery of a listed benefit.

4.3 Examples of offsetting for benefit recovery only

Example 1

An award of compensation totalling £100,000 is agreed and broken down as follows: £40,000 in respect of general damages (pain and suffering), £30,000 in respect of loss of earnings and £30,000 in respect of loss of mobility.

A CRU Certificate lists Incapacity Benefit totalling £5,000, Income Support totalling £10,000 and Disability Living Allowance (mobility component) totalling £10,000.

A compensator may not under any circumstances offset against the general damages element of the award. Incapacity Benefit and Income Support can be offset against the loss of earnings head of compensation, as set out in Section 8 and Schedule 2 to the Recovery of Benefits Act. Therefore a total of £15,000 can be deducted from the loss of earnings sum, leaving £15,000 to be paid to the injured person.

Similarly, the compensator may offset the £10,000 DLA (mobility) against the loss of mobility head of compensation, leaving £20,000 to be paid to the injured person.

The injured person has settled their claim for a total of £100,000. Following offsetting, they receive £75,000 from the compensator in addition to the £25,000 they have already received from the state benefits system, thus avoiding double compensation.

Example 2

An award of compensation totalling £100,000 is agreed and broken down as follows: £40,000 in respect of general damages (pain and suffering), £30,000 in respect of loss of earnings and £30,000 in respect of loss of mobility.

The CRU Certificate lists Incapacity Benefit totalling £20,000, Income Support totalling £50,000 and Disability Living Allowance (mobility component) totalling £30,000.

A compensator may not under any circumstances offset against the general damages element of the award. Incapacity Benefit and Income Support can be offset against the loss of earnings head of compensation, as set out in section 8 and Schedule 2 to the Recovery of Benefits Act. Therefore a total of £30,000 is deducted from the loss of earnings sum, leaving nothing to be paid to the injured person, but the Certificate shows that £70,000 should be repaid to the Secretary of State. As the compensator can only offset £30,000 they are still liable for the total amount shown on the Certificate and must pay the difference (£40,000) themselves.

The compensator may offset the £30,000 DLA (mobility) against the loss of mobility head of compensation, again leaving nothing to be paid to the injured person.

The injured person has settled their claim for a total of £100,000. Following offsetting, they receive £40,000 by way of general damages, thus avoiding double compensation.

In assessing damages in respect of any accident, injury or disease, the amount of any listed benefits paid or likely to be paid is to be disregarded

Where the amount of compensation in respect of a particular head of compensation is less than the amount of a listed benefit to be recovered, the compensator is liable to pay the difference - they may not reduce payment against any other head of compensation to take account of the recovery of a listed benefit.

Heads of compensation are defined in Schedule 2 to the Social Security (Recovery of Benefits) Act 1997.

Under the provisions of the Mesothelioma Act 2014 any compensation payment made under the Diffuse Mesothelioma Payment Scheme is to be reduced by the amount of the recoverable benefit. This is in addition to any reduction in respect of a recoverable lump sum payment as described in section 1.3.

4.4 Lump sum payments recoverable under the 1997 Act

Lump sum payments recoverable under the 1997 Act include those made under:

the Pneumoconiosis etc. (Workers’ Compensation) Act 1979
the 2008 Diffuse Mesothelioma Scheme
the 2014 Diffuse Mesothelioma Payment Scheme
any ex-statutory payment that was paid because the person did not qualify for a payment under the 1979 Act

Example of offsetting for lump sum payments and benefit recovery

An award of compensation totalling £60,000 is agreed and broken down as follows:

£15,000 in respect of general damages
£25,000 in respect of loss of earnings
£20,000 in respect of loss of mobility

The CRU Certificate lists lump sum payments totalling £20,000, Income Support totalling £15,000 and Disability Living Allowance (mobility component) totalling £10,000.

The compensator must offset the £20,000 lump sum payment from the general damages first, which would leave an outstanding balance of £5,000. An offset may then be applied to any of the remaining heads of compensation, that is, the compensator may offset the outstanding balance of £5,000 plus the £15,000 Income Support from the loss of earnings head of damage and the £10,000 DLA (mobility) from the loss of mobility head of compensation.

The injured person has settled their claim for a total of £60,000. Following offsetting, they receive £15,000 from the compensator in addition to the £45,000 they have already received from the state benefits system, thus avoiding double compensation.

4.5 Exempt payments in respect of the recovery of listed benefits and lump sum payments

Recovery will not be made from the following types of payments as listed in Schedule 1 to the 1997 Act:

Any small payment (defined in Part II of this Schedule).
Any payment made to or for the injured person under Section 35 of the Powers of Criminal Courts Act 1973 or Section 249 of the Criminal Procedure (Scotland) Act 1995 (compensation orders against convicted persons).
Any payment made in the exercise of a discretion out of property held subject to a trust in a case where no more than 50% by value of the capital contributed to the trust was directly or indirectly provided by persons who are, or are alleged to be, liable in respect of:

a) the accident, injury or disease suffered by the injured person, or

b) the same or any connected accident, injury or disease suffered by another

Any payment made out of property held for the purpose of any prescribed trust (whether the payment also falls within paragraph 3 above or not).
Any payment made to the injured person by an insurance company within the meaning of the Insurance Companies Act 1982 under the terms of any contract of insurance entered into between the injured person and the company before the:

a) date on which the injured person first claims a listed benefit in consequence of the disease in question, or

b) occurrence of the accident or injury in question

Any redundancy payment failing to be taken into account in the assessment of damages in respect of an accident, injury or disease.
So much of any payment as is referable to costs.
Any prescribed payment.

The following trusts are prescribed for the purpose of paragraph 4 of Schedule 1 and may be found in Regulation 2.1 of the Social Security (Recovery of Benefits) Regulations 1997, and Regulation 7 of the Social Security (Recovery of Benefits) (Lump Sum Payments) Regulations 2008:

the Macfarlane Trust established on 10 March 1988 partly out of funds provided by the Secretary of State to the Haemophilia Society for the relief of poverty or distress among those suffering from haemophilia
the Macfarlane (Special Payments) Trust established on 29 January 1990 partly out of funds provided by the Secretary of State for the benefit of certain persons suffering from haemophilia
the Macfarlane (Special Payments) (No. 2) Trust established on 3 May 1991 partly out of funds provided by the Secretary of State for the benefit of certain persons suffering from haemophilia and other beneficiaries
the Eileen Trust established on 29 March 1993 out of funds provided by the Secretary of State for the benefit of persons eligible for payment in accordance with its provisions
a trust established out of funds provided by the Secretary of State in respect of persons who suffered, or who are suffering, from variant Creutzfeldt-Jakob disease for the benefit of persons eligible for interim payments in accordance with its provisions(Statutory Instrument 2001 No. 1118, which amends the 1997 Regulations)
a trust established out of funds provided by the Secretary of State in respect of persons who suffered, or who are suffering, from variant Creutzfeldt-Jakob disease for the benefit of persons eligible for payments, other than interim payments, in accordance with its provisions. (Statutory Instrument 2001 No. 1118, which amends the 1997 Regulations)
the UK Asbestos Trust established on 10 October 2006 for the benefit of certain persons suffering from asbestos-related diseases (this payment is an exempt payment unless the recipient has previously received a payment made under the Mesothelioma Act 2014 - in these circumstances, the DMPS lump sum will be recoverable from the compensation payment)
the EL Scheme Trust established on 23 November 2006, for the benefit of certain persons suffering from asbestos-related diseases

The following payments are prescribed for the purposes of paragraph 8 of Schedule 1 to and may be found in Regulation 2.2 of the Social Security (Recovery of Benefits) Regulations 1997 and Regulation 7 of the Social Security (Recovery of Benefits) (Lump Sum Payments) Regulations 2008:

any payment made under the Vaccine Damage Payments Act 1979 to or in respect of the injured person
any award of compensation made to or in respect of the injured person under the Criminal Injuries Compensation Act 1995 or by the Criminal Injuries Compensation Board under the Criminal Injuries Compensation Scheme 1990 or any earlier scheme
any payment made to the injured person in respect of sensorineural hearing loss where the loss is less than 50 dB in one or both ears
any contractual amount paid to an employee by an employer of theirs in respect of a period of incapacity for work
any payment made under the National Health Service (Injury Benefits) Regulations 1995(e) or the National Health service (Scotland) (Injury Benefits) Regulations 1974(f)
any payment made by or on behalf of the Secretary of State for the benefit of persons eligible for payment in accordance with the provisions of a scheme established by him on 24 April 1992 or, in Scotland, on 10 April 1992
any payment made from the Skipton Fund, the ex gratia payment scheme administered by the Skipton Fund Limited, incorporated on 25 March 2004, for the benefit of certain persons suffering from hepatitis C and other persons eligible for payments in accordance with the scheme’s provisions
any payment made by MFET Limited, the company limited by guarantee (number 7121661) of that name, established for the purpose in particular of making payments in accordance with arrangements made with the Secretary of State to persons who have acquired HIV as a result of treatment by the NHS with blood or blood products
any payment made from the Caxton Foundation, the charitable trust of that name established on 28 March 2011 out of funds provided by the Secretary of State for the benefit of certain persons suffering from hepatitis C and other persons eligible for payment in accordance with its provisions
any payment made from the London Bombings Relief Charitable Fund, the company limited by guarantee (number 5505072) and registered charity of that name established on 11 July for the purpose of (amongst other things) relieving sickness, disability or financial need of victims (including families or dependants of victims) of the terrorist attacks carried out in London on 7 July 2005
for Northern Ireland only, any payment made to or for the injured person under Article 14 of the Criminal Justice (Northern Ireland) Order 1994 (compensation orders against convicted persons)
any payment made under the Social Security (Scottish Infected Blood Support Scheme) Regulations 2017
any payment made under the Social Security (Infected Blood and Thalidomide) Regulations 2017
any payment made under the Windrush Compensation Scheme and the Windrush Hardship Fund

Where it is clear that the compensation claim falls into one of the above categories, you do not need to send form CRU1 to CRU.

4.6 Exempt trusts and payments, which only apply to the recovery of listed benefits

Recovery will not be made from the following types of payments:

any payment to the extent that it is made:
- in consequence of an accident under the Fatal Accidents Act 1976 or
- in circumstances where had an action been brought, it would have been brought under that Act – if any of the action is brought under the law Reform (Miscellaneous Provisions) Act 1934, a CRU1 needs to be completed
any payment to the extent that it is made in respect of a liability arising by virtue of Section 1 of the Damages (Scotland) Act 1976
any payment made under the Fatal Accidents (Northern Ireland) Order 1977
any compensation payment made by British Coal in accordance with the NCB Pneumoconiosis Compensation Scheme set out in the Schedule to an agreement made on the 13 September 1974 between the National Coal Board, the National Union of Mine Workers, the National Association of Colliery Over-men Deputies and Shot-firers and the British Association of Colliery Management

A form CRU1 must be completed to enable a Certificate to be issued which will provide details of any lump sum payments paid where compensation is paid under any of the above, for any of the following diseases:

mesothelioma
pneumoconiosis (including silicosis, asbestosis, kaolinosis)
diffuse pleural thickening
primary carcinoma of the lung
byssinosis

The Social Security (Recovery of Benefits) Act 1997 Schedule 1 Part 1, the Social Security (Recovery of Benefits) Regulations 1997 Regulation 2 and Regulation 7 of the Social Security (Recovery of Benefits) (Lump Sum Payments) Regulations 2008 lists all exempt payments and trusts.

4.7 DWP right to inspect records

The Social Security Administration Act 1992 Section 110 gives DWP inspectors the right to examine the records of compensators and employers to verify that they are complying fully with the provisions of the Social Security (Recovery of Benefits) Act 1997.

4.8 How the compensation recovery scheme works

The main processes for compensators are:

Compensator receives a claim for compensation.
Check the details to be given to CRU (name, address, date of birth, National Insurance number etc).
Notify CRU of the claim within 14 days. A form CRU1 is provided for this purpose (also available electronically in the CRU GB electronic communications section.
CRU will automatically issue a Certificate in cases where the required mandatory information has been provided and no recoverable benefits have been identified.
Receive acknowledgement of notification (form CRU4) if a Certificate cannot be issued automatically
When ready to make an offer of compensation, return form CRU4 to apply for a Certificate.
Receive acknowledgement of application, CRU 5 (if not received within 14 days contact CRU immediately).
Receive Certificate (if not received by date given on acknowledgement contact CRU immediately). A copy of the Certificate will be sent to the injured person or their representative.
Pay compensation and, if any deductions have been made in accordance with either the 1997 Act or the Social Security (Recovery of Benefits) (Lump Sum Payments) Regulations 2008, you must inform the injured person.
Notify CRU of the result of the claim, even if it is unsuccessful, by returning the form CRU102 that accompanies the Certificate. Ensure that any changes to your reference number are clearly noted.
Notify CRU of the date the compensation payment is made in final discharge of the claim. The date of agreement does not end the relevant recovery period.
The compensator becomes liable to pay the total amount of the recoverable benefits and lump sum payments to the CRU immediately before making the compensation payment.
Pay the total amount of recoverable benefits and lump sum shown on the Certificate to the CRU. The CRU may enforce this debt through the courts at any point from the 15th day following the date the compensation was paid.

Payment should not be sent to CRU if the injured person has not been paid compensation.

4.9 The CRU Process

The process is:

CRU receives form CRU1 from the Compensator.
CRU will automatically issue a Certificate in cases where the required mandatory information has been provided and no recoverable benefits have been identified.
Form CRU4 sent to the Compensator by CRU if a Certificate cannot be issued automatically.
The Compensator is ready to settle claim and returns CRU4 requesting a Certificate.
CRU gathers benefits and lump sum payment information, relating to the injured person and the relevant accident, injury or disease.
Certificate showing benefit and lump sum payments issued to the Compensator and copy issued to injured person or their representative.
The Compensator pays final compensation to the injured person.
The Compensator notifies CRU of the date the compensation payment was made in final discharge of the claim and repays the total amount of benefits and lump sums payments shown on the Certificate to CRU. CRU may enforce this debt through the courts at any point from the 15th day following the date the compensation was paid.

Question 5

5. Guidance for compensators

Accepted Answer

5.1 Recovery procedures

When you receive a claim for compensation, you should send form CRU1 to CRU within 14 days. This does not mean that you have accepted any liability for the accident, injury or disease.

A Certificate will be automatically issued in cases where the required mandatory information has been provided and no recoverable benefits have been identified. If this is not possible, CRU will send you a form CRU4 for use when applying for a Certificate or a Certificate of NHS charges.

If you do not have a Certificate when you are ready to settle the claim, you must apply for one by returning form CRU4. You should contact CRU immediately if you have not received an acknowledgement of your request within 14 days.

CRU will issue the Certificate within 4 weeks of receiving a request (see also having a Certificate renewed).

The Certificate will specify the total amount of recoverable benefits and lump sum payments. In the case of recoverable benefits and lump sum payments, you become liable to pay CRU immediately before you pay any compensation payment.

A Certificate of NHS charges will be sent separately. Please see the section that deals specifically with the NHS charges.

CRU will also send a copy of the Certificate to the injured person or their representative.

Help us to help you

In order for CRU to provide a prompt and accurate service it is essential that you tell CRU about claims as early as possible. If you delay sending CRU the information on form CRU1, you may experience difficulties and further delay when you request a Certificate. CRU must notify the Department’s benefit paying offices that a compensation claim has been made as soon as possible. Failure to notify CRU at the early stage of a claim for compensation may mean archived records need to be retrieved from storage, so you may have to wait longer for an urgently required Certificate.

5.2 Completing form CRU1

You must give CRU the following information on form CRU1 when someone claims compensation from you:

the injured person’s full name and address (if the injured person has previously been known by a different name, for example a maiden name, it would be helpful if you could include this detail)
their date of birth
National Insurance number, if known
the date of the accident, incident or injury
a full description of the nature of the accident, incident, injury or disease
whether the accident was a road traffic accident (RTA) which occurred prior to 29 January 2007
if the person attended an NHS hospital because of the RTA, the injury or the incident on or after 29 January 2007 (at any time for any treatment, examination etc.)
the full name and address of the hospitals or trusts the injured person attended or was admitted to (in order of attendance)
if you are claiming an exemption under the Road Traffic Act 1988 (section 144) you must state the category of exemption (See Para. 7.5) for RTA’s prior to 29 January 2007
whether or not the injured person was employed at the date of incident
where the date of incident is before 6 April 1994, details of the injured person’s employment (if known) – this will enable CRU to obtain information about Statutory Sick Pay (SSP) that may have been paid
the reference number you use to identify the case. If your reference number changes before the claim is settled, you should inform CRU of the new reference number
to help CRU process the claim, please tell CRU whether the claim is public liability (P), motor (M), employer (E), clinical negligence (C) or other (O)
if a claim is registered as ‘M’ liability but the accident occurred during a person’s employment you must notify CRU of that fact – this is because the injured person may have claimed Industrial Injuries Disablement Benefit
in ‘E’ liability cases if SSP was paid before 6 April 1994 the compensator must provide details of the SSP when applying for a Certificate
if a solicitor is acting on your behalf you must show their name, address and reference number on form CRU1. This will ensure that correspondence is sent to the correct address

You must notify CRU in writing if you take over a claim from another compensator. You should not complete form CRU1 if that form was submitted by the original compensator.

Failure to provide the information listed above could cause a delay in CRU issuing Certificates.

See our Compensation Recovery Unit forms page for a copy of our CRU1 form. Please send completed forms to the address at the bottom of the CRU1.

5.3 Obtaining a Certificate

A Certificate will be automatically issued in cases where the required mandatory information has been provided and no recoverable benefits have been identified. If this is not possible CRU will send you a form CRU4 for use when applying for a CRU Certificate or a Certificate of NHS charges.

Important: You should not return form CRU4 to CRU until you are ready to settle the claim.

Statutory Sick Pay (SSP) Employer liability cases only

Where the date of incident is before 6 April 1994 (or in disease cases where SSP may have been paid before that date) you should ask the relevant employer for details of any SSP that the injured person was paid as a direct result of the accident, injury or disease.

Complete form CRU4 to show the gross amount of SSP. Make sure you do not include any Occupational Sick Pay that may have been paid with the SSP.

The amount shown on the Certificate will include 100% of SSP paid before 6 April 1991 and 80% of SSP paid from 6 April 1991 to 5 April 1994.

SSP ceased to be recoverable from 6 April 1994. Details of SSP paid after this date are not required.

5.4 Urgent requests for Certificates

Under the law, CRU has up to 28 days to issue a Certificate. However, in certain circumstances, a request for a Certificate to be issued urgently may be granted.

5.5 The Certificate

A Certificate cannot be treated as being valid prior to the date of the request and will remain in force until the date specified on the Certificate for that purpose (s4 (4)). The Certificate will include:

details of the injured person’s identity and where appropriate the date of the incident which gave rise to the compensation claim
the total of each recoverable benefit paid up to a specified date
the total amount of each recoverable lump sum payment paid
the rate expected to be paid for a short future period if benefit is still in payment
a note to say whether any of the above amounts or dates have been estimated
the date the Certificate ceases to be valid
the total amount to be repaid to the Secretary of State for Work and Pensions

The law provides that a compensator must apply for a Certificate prior to making a compensation payment. If the compensator settles a compensation claim without a Certificate that covers the actual date of settlement, CRU will issue a one day Certificate valid only for the date of settlement. The one day Certificate may include benefits that have not been taken into account during the negotiation process but will be recoverable. It is therefore important that you request a Certificate prior to making a compensation payment.

Important: The validity period of a Certificate varies according to the circumstances of the case.

5.6 Powers to estimate

The law allows CRU to estimate any amount, date or period specified in the Certificate (Social Security (Recovery of Benefits) Act 1997, Section 5(4)) also Reg 4(1)(a) and 9(3) of the Social Security (Recovery of Benefits) (Lump Sum Payments) Regulations 2008

5.7 Issue of the Certificate

CRU will send you the Certificate, and, at the same time, a copy will be sent to the injured person or their representative.

You should write to CRU if you want the Certificate to be looked at again.

5.8 Increase of recoverable benefits included on Certificates

CRU may become aware that further recoverable benefits should have been included on that Certificate that is currently in issue.

During the validity period of a Certificate the amount of recoverable benefit shown cannot be increased, except where the compensator has provided CRU with incorrect or insufficient information.

However, if recoverable benefits are inappropriately omitted from a Certificate, and a compensation payment is not made during the period of validity of that Certificate, the additional recoverable benefits will be listed on any further Certificates issued.

CRU will notify you in writing as soon as possible if a future Certificate will be affected as explained above.

5.9 Increase of lump sum payments included on Certificates

If CRU become aware that recoverable lump sum payments have been paid after a Certificate has been issued, a revised Certificate will be issued to include the lump sum payment amount and the revised Certificate will supersede any previous Certificate.

5.10 Having the Certificate renewed

The compensator should only request renewal Certificates when they are ready to settle the claim. Persistent requests for renewal Certificates when the claim is not ready to be settled generates extra work and expense for everyone and may cause delays.

CRU cannot normally issue a new Certificate until the one currently in issue expires. If, however, a compensation claim is close to being settled and the Certificate in issue will expire before the settlement takes place, a request for a renewal Certificate will be considered.

5.11 What to do after the Certificate is issued

Please tell CRU as soon as possible when you know the outcome of the claim even if it was unsuccessful. Form CRU102 should be used for this purpose. Failure to do this may result in you incurring costs for the retrieval of files from storage. CRU will not pay the retrieval costs where a compensator has not informed them of the date the compensation payment was made in final discharge of the claim.

If CRU has not been notified about the outcome of a compensation claim after 2 years from when it was registered, CRU will issue form CRU250 to ask for an update on the progress of the claim.

When compensation has been paid you must send CRU the form CRU102, together with a cheque for the amount specified on the Certificate. Cheques should be crossed and made payable to ‘Department for Work and Pensions only’ (in Northern Ireland ‘Department for Communities only’). Do not send a cheque without attaching form CRU102.

Please ensure the correct CRU reference number is shown on the remittance advice note, along with your claim reference number and if possible the incident or accident date or the name of the injured person.

You may send one cheque in respect of any number of claims. In order that CRU may allocate a bulk payment correctly to each case, the cheque must be accompanied by a schedule detailing all the CRU reference numbers and the amount due for each individual case. The total amount on the schedule should be checked to ensure the cheque is for the correct amount. If you choose this option you should bear in mind that the liability to pay DWP arises immediately before making the compensation payment, and the CRU may enforce this debt through the courts at any point from the 15th day following the date the compensation was paid.

5.12 Making direct payments to the CRU bank account

You can make direct payments to the CRU bank account by contacting us by:

email: cru.banking@dwp.gov.uk
phone: 0800 151 3194

Read more information on making direct payments to CRU.

5.13 Penalty for default

DWP may take action against you to secure payment of the recoverable amount if you:

make a compensation payment but do not apply for a Certificate
fail to repay the specified amount

If you obtain a Certificate and make the appropriate compensation payment but fail to pay the DWP, CRU will send you a reminder. Payment must be made immediately you receive the reminder. If your records show that you have already sent CRU a payment, you should contact CRU immediately providing all of the relevant details (for example, the cheque number or BACs reference number and the date it was cashed). If you have not sent CRU a payment because you do not agree with the amount on the Certificate, then you may request a review.

In accordance with Section 7-(3)(4)(5) of the 1997 Act, and Regulation 11 of the Social Security (Recovery of Benefits) (Lump Sum Payments) Regulations 2008, failure to pay DWP the amount shown on the Certificate may result in legal action being taken against you.

The Social Security (Recovery of Benefits) Act 1997, Section 6 Liability to pay the Secretary of State amount of benefits, and Section 7 Recovery of payments due under Section 6. Also Regulation 10 Liability to pay Secretary of State amount of lump sum payments and Regulation 11 Recovery of payment due under Regulation 10.

Question 6

6. Requests and notifications not appropriate for CRU

Accepted Answer

6.1 Professional negligence

See the section on Complex cases – Professional negligence

If a claim is made in respect of professional negligence and the particulars of claim, statement of claim or letter before action does not include a claim for compensation as a result of the original accident, injury or disease, form CRU1 does not need to be completed. If details of benefits paid are required, a request should be made to the relevant DWP benefit paying office. If you have already sent a CRU1 for such a case, you should let CRU know as soon as possible.

Where compensation is also to be paid as a result of the original accident, injury or disease, form CRU1 must be submitted by the compensator.

6.2 Compensation for criminal injuries

The Compensation Recovery Scheme does not apply to criminal injuries cases. If details of social security benefits are required they should be obtained from the relevant DWP benefit paying office.

You can get more information from the Criminal Injuries Compensation Scheme website.

6.3 Requests for details of benefits paid prior to the date of accident, injury or disease

CRU cannot provide details of benefits paid before the date of incident, or give any estimate of which benefits might have been payable had the incident not occurred.

CRU can only provide details of benefits paid as a result of an accident, injury or disease for which compensation has been claimed.

Question 7

7. Complex cases

Accepted Answer

7.1 Interim payments

If a compensator makes an interim compensation payment, they are liable to pay DWP:

all recoverable benefits paid up to the date of the interim payment
any lump sum payments paid up to the date of the interim payment

If a further compensation payment is subsequently made in final discharge of the claim, or an agreement is made under which an earlier compensation payment is treated as having been made in final discharge of the claim, the relevant recovery period will end at that time, if it has not already done so. The compensator will also be liable for the repayment of any additional benefits paid during this period.

The compensator should apply for a fresh Certificate:

before making any further payment, or
reaching an agreement that a previous payment was in final settlement of the claim

This Certificate will show details of:

all recoverable benefits and lump sum payments
the balance to be paid by the compensator

In cases where there are recoverable benefits and a further compensation payment is made, the compensator may:

aggregate the payments already made with the payments about to be made to CRU and the injured person, and
use these aggregate amounts when calculating the reductions that may be made under Section 8 of the 1997 Act. See also Regulation 9 of the Social Security (Recovery of Benefits) Regulations 1997

In cases where there are recoverable lump sum payments and a further compensation payment is made, the compensator may:

aggregate the payments already made with the payments about to be made to CRU and to P, and
use these aggregate amounts when calculating the reductions that may be made under Regulations 10 and 14 of the Social Security (Recovery of Benefits) (Lump Sum Payments) Regulations 2008

7.2 Multiple compensators (multi-comps)

A multi-comp case is where there is one incident but more than one compensator or insurer involved.

In multi-comp cases the Certificate belongs to the case, not the individual compensator or insurer.

Once a compensation payment is made the compensator or insurer is liable to pay the Secretary of State an amount equal to the amount shown on the Certificate.

Each compensator who makes a payment to the injured person is liable to repay the amount shown on the Certificate at the date of their settlement.

If the settlement date is the same for all compensators involved in the claim they should work together to apportion their individual liability to ensure CRU receives the total amount on the Certificate.

7.3 Example of a multi-comp settlement

The claim settles and compensator 1 pays compensation to the injured person before compensator 2. The total amount of recoverable benefits due at the settlement is £10,000.

The compensators have the following agreement:

Compensator 1 – 25% liable.
Compensator 2 – 75% liable.

Section 6 (1) of the 1997 Act states; “A person who makes a compensation payment in any case is liable to pay to the Secretary of State an amount equal to the amount of the recoverable benefits”.

CRU receives £2,500 from compensator 1 who is issued with form CRU18A for the outstanding amount. This is because there are no provisions within the 1997 Act that allow for apportionment. When a compensator makes a compensation payment they are liable for the total amount on the Certificate regardless of their percentage liability to the injured person.

Multi-comp cases involving the Financial Services Compensation Scheme

The total amount on the Certificate will be pursued and any shortfall created by the involvement of the Financial Services Compensation Scheme must be repaid by the solvent compensators involved in the claim.

Each compensator may make only those reductions to the injured person’s compensation allowed by Section 8 of the 1997 Act and Regulations 10 and 11 of the Social Security (Recovery of Benefits) (Lump Sum Payments) Regulations 2008 in relation to the compensation they are paying to the injured person and the benefits and lump sum they are repaying to DWP.

The Health and Social Care (Community Health and Standards) Act 2003, gives provision for apportionment of liability to pay NHS charges where more than one compensator is involved.

CRU can apportion the amount of relevant NHS charges that would be payable if there were only one compensator, if evidence is provided to enable the CRU to determine the liability, of each compensator. Apportionment cannot be applied to the Social Security (Recovery of Benefits) Act 1997.

7.4 Structured settlements

If a compensator, in final settlement of a claim, enters into an agreement for the making of periodical compensation payments (whether of an income or capital nature) or for the making of such payments and lump sum payments and those payments would fall to be treated as compensation payments:

the date of the agreement will be treated as the day of a single compensation payment and liability will end at that time, if it has not done so already
any further payments made otherwise than under the agreement will be disregarded for the purpose of determining the end of the relevant period in relation to that further payment

7.5 Payments into court (England, Wales and Northern Ireland)

Where compensation is paid into court the compensator remains liable to pay any recoverable benefits and lump sum payments due to DWP.

The compensator must obtain a Certificate and lodge it with the payment into court. The payment into court should be net of any recoverable benefits and lump sum payments and net of any allowable deductions specified in Schedule 2 of the 1997 Act (see listed benefits recoverable under the 1997 Act, and lump Sum Payments recoverable under the 1997 Act).

The Department for Constitutional Affairs (DCA) made amendments to the Civil Procedure Rules, which are incorporated into the 44th update that came into force on 6 April 2007.

One of the main changes was to abolish Part 36 Payments into Court. The policy intent behind the Social Security (Recovery of Benefits) Act 1997 was always to end the relevant period (if it had not already ended) once a payment had been made to the injured party.

The specific intention behind Regulation 8 (Payments into Court) was to cease the relevant period before the injured person received the money but only where a payment had been made into Court. This was on the basis that the compensator had actually paid the money.

Under the new rules there is only an offer, which does not trigger the Act and so the relevant period will end when payment in final discharge is actually made, reflecting what may be described as the core policy of the Act.

Section 16 of the Social Security (Recovery of Benefits) Act 1997 and Regulation 8 of the Social Security (Recovery of Benefits) Regulations 1997 refer to Payments into court.

7.6 Insurer’s liability

Further information about cases where the amount of benefits to be repaid and the amount of the compensation exceed the insurer’s maximum liability may be obtained from CRU.

7.7 Clinical negligence

Clinical negligence cases are treated as multiple claims as more than one incident would have occurred.

CRU has a small team of specialists who deal with clinical negligence cases. This is because consideration must be given to causation and prolongation to determine how much of the benefit was paid as a result of the actual negligence, and how much was paid for the original incident.

It is important that the form CRU1 is submitted as soon as possible after you have been notified of the clinical negligence claim. This will help CRU to provide you with a prompt and accurate service.

You should contact CRU’s Clinical Negligence Team if you want any further information about clinical negligence cases.

7.8 Goodwill payments

A goodwill payment, usually in the form of gift vouchers or the like, is sometimes made in response to a complaint about a product or incident. For example, if someone slips in a retailer’s premises and only suffers a minor injury, inconvenience or embarrassment or if the consumption of foodstuffs is alleged to have caused a stomach complaint.

If such a payment is made at the time of the complaint or incident, CRU does not need to be informed.

However, if such a payment is made at a later date, benefits or NHS treatment may have been received. In these cases, a form CRU1 must be submitted, especially compensation is being sought in respect of:

loss of earnings
cost of care
loss of mobility

For NHS charges, where incidents or injuries were caused on or after 29 January 2007, liability to pay NHS charges arises where a compensation payment is made in respect of an allegation of liability for injuries suffered and NHS treatment was received. ‘Compensation payment’ includes not just payments of money but payment in kind, which might include, for example, provision of free rehabilitation services. If such a payment is made, it does not matter if it was made as a goodwill payment as liability to pay NHS charges would still be incurred. Please see the law – NHS charges for further information.

7.9 Professional negligence

See the section on Requests and notifications not appropriate for CRU – Professional negligence

Where a claim is made for professional negligence and the particulars of claim, statement of claim or letter before action includes a claim for compensation as a result of the original accident, injury or disease, form CRU1 must be submitted and any listed benefits and lump sum payment paid in consequence of the original accident, injury or disease will be recoverable.

7.10 Property damage only claims

You must notify CRU on form CRU1 if a claim for property damage includes:

a claim for loss of earnings
a loss of mobility
cost of care
any other element of compensation

Question 8

8. Guidance for claimants’ representatives

Accepted Answer

8.1 General information

The compensator will give CRU your details when they notify CRU of your client’s compensation claim.

You should always give the compensator your client’s full name, address, date of birth and, where known, their National Insurance number. You should also provide as much information as possible about the injured person’s injuries or nature of the disease.

If your client has had a road traffic accident or attended hospital for an injury on or after 29 January 2007, it is essential that you provide details of the hospitals attended, and whether the accident happened during the course of the injured person’s employment.

If you give incorrect or incomplete details it may cause delay or inaccuracies in calculating the amount of recoverable benefit and lump sum payment.

If your client has been known by any other name, for example a maiden name, please give details.

Once the CRU are in receipt of all of the necessary information and a Certificate is requested by the compensator, you will be sent a copy of the Certificate when it is issued so that you can verify the information contained and you are in possession of the same information as the compensator.

8.2 Offsetting of recoverable benefits

The Social Security (Recovery of Benefits) Act 1997 (c. 27) includes provisions (Section 8 and 8A) allowing compensators to offset or deduct some of the recoverable benefits that they have to repay from the compensation payment.

The compensation payment can be reduced by the amount of recoverable benefit to the extent that it is paid under the same head of damages. The benefits are allocated to particular heads of damages under Schedule 2 to the Act. No reduction can be made to compensation on account of general damages.

The Secretary of State can not and does not get involved in negotiations between the injured party’s representatives and the compensator. However, customer complaints have highlighted the fact that some claims which were settled on a ‘global basis’ (with reduction on account of benefit and lump sums not being made under Section 8 or 8A) resulted in the subsequent reduction of the recoverable benefit being refunded to the compensator whilst the injured party received no additional money. This is correct and the compensator is in no way acting improperly – it is simply a consequence of the nature of the agreed settlement.

CRU fully appreciate that it is up to the injured party and their representative to negotiate an acceptable offer with the compensator, and in some cases injured parties or their representatives will consider that a global settlement without reference to Section 8 or 8A is in the best interests of the injured party. CRU do not in any way want to influence such decisions or to comment on the merit of any particular settlement.

However, CRU would like to draw your attention to two consequences of applying reductions on account of benefit received that are not calculated and applied under the legislative provisions of Section 8 or 8A. These are that the injured party is not party to any appeal, and, if following review or appeal, recoverable benefits are reduced, the refund will be paid to the compensator and not passed on to the injured party.

8.3 Offsetting of recoverable lump sums

In addition to the offsetting of recoverable benefits, Regulations 12 and 12A of the 2008 Lump Sum payment regulations provide for the compensation payment to be reduced by the amount of the recoverable lump sum payment. This is not subject to heads of damage.

Under the provisions of the Mesothelioma Act 2014 any compensation payment made under the Diffuse Mesothelioma Payment Scheme is to be reduced by the amount of the recoverable benefit, in addition to any recoverable lump sum payment.

8.4 Reviews and appeals

If the injured person disagrees with the amount of benefit and or lump sum payment specified on the Certificate, they may ask for it to be reviewed (see Section 6 Reviews and Appeals). If necessary a fresh Certificate will be issued.

The injured person may also appeal against a Certificate. An appeal cannot be made until after final settlement of the claim and the compensator has repaid the total amount of recoverable benefits and or lump sum payments to the Secretary of State.

An injured person may only appeal if the amount of compensation they receive was reduced by the compensator to take account of benefit and or lump sum payment recovery in accordance with Section 8 or 8A of the 1997 Act and Regulation 12 or 12A of the Social Security (Recovery of Benefits) (Lump Sum Payments) Regulations 2008.

If an appeal is made by either party and the amount of recoverable benefit is reduced then the Secretary of State will refund the relevant amount to the compensator. If there has been a reduction in the compensation under Section 8 or 8A or 12 and 12A then the compensator is obliged to recalculate the compensation award and make any necessary refund to the injured person. For recoverable benefits, if no offset has been made or the offset has been made, but not under Section 8 or 8A, then the compensator can retain the refund.

Regulation 4 of the Social Security (Recovery of Benefits) Regulations 1997 and Regulation 16 of the Social Security (Recovery of Benefits) (Lump Sum Payments) Regulations 2008 refers to information to be provided by the injured person.

If you are pursuing a claim for professional negligence or criminal injuries compensation, or need benefit details outside the five-year statutory period on behalf of your client please contact their benefit paying office.

Question 9

9. Reviews, mandatory reconsideration and appeals

Accepted Answer

9.1 Reviews

The compensator, the injured person, or either party’s representative may ask CRU to review any aspect of a Certificate at any time. A review request should be made in writing and must give the reasons why it is thought the Certificate is wrong. Any evidence that is thought to be helpful should also be included with the review request.

A review may be made on the following grounds:

the Certificate was issued in ignorance of, or based on a mistake as to, a material fact
a mistake was made (whether in computation or otherwise) in the preparation of the Certificate
incorrect or insufficient information was supplied to the Secretary of State by the person who applied for the Certificate and, as a result, the amount of benefit or lump sum payment specified in the Certificate was less than it would have been had the information supplied been correct or sufficient
a ground for appeal is satisfied under Section 11 of the 1997 Act

When a Certificate is reviewed, CRU looks at all the:

benefits and lump sum payments listed as recoverable
amounts paid
periods over which they have been or are likely to be paid

Any errors, omissions or other changes, which may affect the outcome of the review, will be taken into account, even if they are unrelated to the reasons for requesting the review.

Once the review is complete, CRU will take one of the following actions:

confirm in writing that the Certificate is correct
revoke the Certificate and issue a fresh one
change the Certificate and issue a fresh one

If a revised Certificate is issued, it will cover the same period as the Certificate it replaces.

A fresh Certificate showing an increase in the amount of recoverable benefits will only be issued if the person who applied for the Certificate gave CRU incorrect or insufficient information. If this happens, the compensator will be liable to pay the difference to CRU.

Lump sum payments

If CRU become aware that recoverable lump sum payments have been paid after a Certificate has been issued, a revised Certificate will be issued to include the lump sum payment amount. The revised Certificate will supersede any previous Certificate.

9.2 Mandatory reconsideration

This section deals with the steps to follow if the compensation claim is settled and the Compensator has paid CRU all the monies due as listed on the Certificate.

The Welfare Reform Act 2012 introduced changes from 28 October 2013 to the appeals process so that more disputes against DWP decisions can be resolved without the need for referral to HM Courts and Tribunals Service (HMCTS). The key changes to the appeals process from the above date are mandatory reconsideration and direct lodgement.

The CRU must be given the opportunity to formally reconsider its decision before an appeal can be made. This is known as mandatory reconsideration. You should, therefore, ask CRU for a mandatory reconsideration if you want the Certificate to be looked at again. CRU will then look at all of the evidence and decide if the Certificate should be:

changed and a partial refund issued
revoked and a full refund issued
confirmed as correct

You will be given an explanation of the decision in writing. This is known as a mandatory reconsideration notice.

You must ask for a mandatory reconsideration within one month of paying CRU the money due as listed on the Certificate.

9.3 Appeals

If you still think the Certificate is wrong after you have received your mandatory reconsideration notice, you can make an appeal.

An appeal cannot be made until the compensation claim is settled and all monies due as listed on the Certificate have been paid in full to the CRU.

An appeal may be made by:

a compensator
an injured person whose compensation payment was reduced in accordance with section 8 or 8A of the 1997 Act or Regulation 12 or 12A of the Social Security (Recovery of Benefits) (Lump Sum Payments) Regulations 2008

The injured person (or their representative) must provide documentary evidence, such as the Consent Order, to confirm that a section 8 etc. deduction was made on their compensation payment.

Your appeal must be made in writing and sent directly to HMCTS. You will be sent 2 copies of the mandatory reconsideration notice, one to be sent with your appeal and one for you to keep. Your appeal will not go ahead unless you include a copy of this notification with your appeal. The mandatory reconsideration notice will also tell you where to send your appeal form.

You must make your appeal within one month after the date the mandatory reconsideration notice was sent to you. If your appeal is late, HMCTS may ask you to explain why it was not made on time. Your appeal may not be allowed to go ahead if you do not have a good reason why it was late.

An appeal must be made on one or more of the following grounds:

any amount, rate or period specified in the Certificate is wrong
the Certificate shows benefits and lump sum payments which were not paid as a result of the accident, injury or disease
benefits and lump sum payments listed which have not and are not likely to be paid to the injured person have been brought into account
the compensation payment made was not as a consequence of the accident, injury or disease

You can use the tribunal’s Notice of Appeal form to make your appeal.

Using this form will help you to make sure that all the information the tribunal needs is included.

After HMCTS has received your appeal and mandatory reconsideration notice, they will ask the CRU to prepare a written response to the appeal.

CRU will treat a request for an appeal that does not comply with the above grounds as being invalid and refer it back to HMCTS with a request for it to be struck out. A tribunal judge will then decide if the appeal can be accepted as being valid.

Further information

The leaflet ‘Mandatory reconsideration and appeal guide for recovery of benefits and lump sum payments’ (Z2) gives you more information about how to ask for a mandatory reconsideration and how to appeal. It also tells you what you can do if you do not agree with the decision made on your appeal.

Question 10

10. The law - NHS charges

Accepted Answer

10.1 The law on the NHS charges scheme in GB

For incidents occurring on or before 28 January 2007:

Road Traffic (NHS Charges) Act 1999 which refers to The Road Traffic Act 1988
The Road Traffic (NHS Charges) (Reviews and Appeals) Regulations 1999 [S.I. 1999 No. 786]
The Road Traffic (NHS Charges) (Reviews and Appeals) (Scotland) Regulations 1999 [S.I. 1999 No. 1843 (S.111)]
The Road Traffic (NHS Charges) Regulations 1999 [S.I. 1999 No. 785] as amended by SSI 2001 No. 466, SSI 2002 No. 56 and 528 SSI 2004 No. 076 and SSI 2005 No. 123

For incidents occuring on or after 29 January 2007:

Recovery of NHS charges is subject to 2 separate schemes, governed by separate legislation. The guidance below relates to cases where the incident occurred on or after 29 January 2007, however it will also largely apply to accidents that occurred prior to 29 January 2007. See specific information relating to accidents (RTA cases only) that occurred prior to 29 January 2007.

10.2 Personal Injury cases occurring on or after 29 January 2007

For personal injury compensation claims with a date of incident on or after 29 January 2007 Part 3 of The Health and Social Care (Community Health and Standards) Act 2003 applies (“The 2003 Act”). A person is liable to pay the NHS charges if they make a compensation payment in consequence of any injury suffered where the injured person has:

received NHS treatment at an NHS hospital
been provided with NHS ambulance services

In this instance the injury may be:

physical
psychological

In Section 150 (3) of The 2003 Act, a 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 definition of ‘compensation payment’ covers any payment made, even where liability is denied or payment is made in respect of costs only, for example. The definition also includes payments made in money’s worth, which would include, for example:

gift vouchers
providing physiotherapy

These would constitute a compensation payment.

Although disease cases are generally not included in the recovery scheme, Section 150 (5) and (6) of The 2003 Act does allow recovery in disease cases where the disease in question is directly attributable to an injury suffered by the claimant.

The 2003 Act applies to almost all compensators. The provisions under the 2003 Act are not restricted to payments made as a result of being an authorised insurer (as applicable to incidents occurring prior to 29 January 2007). The person making the payment in the compensation claim will be liable to pay the NHS charges. This includes the general public, as well as businesses and other organisations.

The 2003 Act applies to cases involving foreign nationals, foreign compensators and for incidents and injuries sustained abroad, where NHS treatment and ambulance services were provided to the injured person on their return to England, Scotland or Wales.

10.3 The recovery process

When completing the CRU1 form to notify CRU of a claim for compensation ensure that, where appropriate, it contains the name and address of the hospital where treatment was provided as a result of the incident. This is a requirement of Section 160 of The 2003 Act and is subject to compliance checking.

For incidents that happened before 29 January 2007 you should only notify the CRU of NHS hospital details where the incident involved the use of a motor vehicle on a road. This could include cases registered as Employer or Public liability.

When CRU receive the hospital details they will immediately begin their enquiries with the relevant trust to establish the treatment that was provided. Where CRU are not given enough information for the trust to trace the relevant treatment, the CRU will need to make further enquiries with the:

compensator
injured person’s representative, or
the injured person directly

These enquiries can be lengthy and the NHS Certificate cannot be issued until they are complete. It is therefore essential that accurate information be provided to CRU at the outset.

The CRU will not issue the Certificate of NHS charges until the compensator requests it and enquiries are complete, unless the NHS enquiries are complete when a CRU Certificate is issued. When issued, the Certificate of NHS charges will normally be valid from the date of the incident until a final compensation payment is made.

The compensator must pay the amount shown on the Certificate of NHS charges to CRU within 14 days of:

making a compensation payment (interim or final), or
the issue of the Certificate of NHS charges, if that is after the date of the compensation payment

The CRU will repay the NHS charges directly to the responsible NHS body and ambulance service that provided treatment or ambulance services, within 40 days of receipt.

10.4 NHS charges tariff

The amount of NHS charges will depend on when the incident or injury occurred. The charges will relate to either treatment provided with admission to hospital or treatment provided without admission to hospital, but not both. This is because outpatient treatment is superseded by inpatient treatment.

‘With admission’ charges are calculated according to the number of days the injured person stayed in hospital. This is subject to a minimum of one day when the casualty is released on the day of admission. This is known as a ‘day case’ and therefore inpatient treatment does not necessarily involve an overnight stay. Where the casualty is admitted to hospital for more than one day the date of discharge is not included in the calculation.

Under the 2003 Act, ambulance charges for the purposes of transporting the patient to hospital are recoverable per person, per journey, regardless of numbers carried by an individual ambulance. This applies to each ambulance journey to hospital, or transfer between hospitals, in relation to treatment of the injuries for which compensation is paid. The ambulance charge will only apply to NHS ambulance journeys and does not include the charity funded air ambulances.

There is a limit to the amount of NHS charges that can be recovered which is known as the “capped” tariff amount. The tariff for treatment and ambulance costs is reviewed each financial year.

10.5 NHS treatment and ambulance journey charges

The following table can be used as a quick reference guide to the tariffs:

Incident date (on or after)	Out-patient	In-patient	Cap	Ambulance charges
Before 2 July 1997	£295	£435	£3,000
2 July 1997	£354	£435	£10,000
1 January 2003	£440	£541	£30,000
1 April 2003	£452	£556	£33,000
1 April 2004	£473	£582	£34,800
1 April 2005	£483	£593	£35,500
1 April 2006	£505	£620	£37,100
29 January 2007	£505	£620	£37,100	£159
1 April 2008	£547	£672	£40,179	£165
1 April 2009*	£566	£695	£41,545	£171
1 April 2010	£585	£719	£42,999	£177
1 April 2011	£600	£737	£44,056	£181
1 April 2012	£615	£755	£45,153	£185
1 April 2013	£627	£770	£46,046	£189
1 April 2014	£637	£783	£46,831	£192
1 April 2015	£647	£796	£47,569	£195
1 April 2016	£665	£817	£48,849	£201
1 April 2017	£678	£833	£49,824	£205
1 April 2017	£678	£833	£49,824	£205
1 April 2018	£688	£846	£50,561	£208
1 April 2019	£725	£891	£53,278	£219
1 April 2020	£743	£913	£54,566	£224
1 April 2021	£744	£915	£54,682	£225
1 April 2022	£766	£941	£56,260	£231
1 April 2023	£788	£968	£57,892	£238
2 October 2023	£806	£991	£59,248	£243
1 April 2024	£825	£1,014	£60,610	£249

*For Scottish cases, the effective date for increased charges is 12 June 2009

An example of NHS charges

A patient had an accident on 10 September 2009 and was:

taken by ambulance to Accident and Emergency to hospital A where they were treated as an outpatient
transferred and admitted to hospital B for 7 days
transferred again to a specialist unit in hospital C for 10 days

All 3 ambulance charges would be recoverable (a total of £513) as would treatment at hospital B and C (total of 17 days inpatient amounting to £11,815). The Certificate of NHS charges would be for £12,328. Outpatient treatment at hospital A is disregarded as superseded by inpatient treatment.

Had the injury led to 100 days treatment at hospital C, the NHS certificate would show a total charge of £74,878 capped at £41,545.

10.6 The relevant NHS recovery period

The period in respect of which NHS charges may be recovered by DWP begins on the first day that treatment was provided following the incident.

The period ends on:

the day a compensation payment is made in final discharge of a claim
the date an agreement is made under which an earlier compensation payment is treated as having made in final discharge of any claim, or
when the appropriate tariff limit is reached

10.7 NHS exempt payments

Please refer to Schedule 10 of Part 3 of the 2003 Act for listed exemptions of repayment of NHS charges.

If you consider your client is exempt from repayment of NHS charges, please let CRU know, providing all relevant information. You need to do this on a case by case basis.

A compensator who is exempt from repayment of NHS charges will not be issued with a Certificate of NHS charges, unless CRU has been notified of the exemption after a Certificate of NHS charges has been issued. In these circumstances, CRU will revoke the Certificate of NHS charges and issue a fresh copy. You must therefore inform the CRU if you receive a Certificate of NHS charges on a case that you consider to be exempt.

10.8 The Certificate of NHS charges

Separate legislation covers the recovery of NHS charges and the recovery of benefits schemes. Therefore, the Certificate of NHS charges is issued separately to the benefits Certificate.

There is no time limit in the legislation in which CRU must issue the Certificate of NHS charges. CRU will issue the Certificate of NHS charges as soon as is reasonably practicable.

The compensator does not have to be in possession of the NHS Certificate at the time they settle the injured person’s compensation claim as the NHS charges cannot be offset against the compensation payment awarded. Therefore, the amount of NHS charges should not be relevant to the negotiation process. However, if the compensator has not already applied for a Certificate of NHS charges, they must do so within 14 days of making the compensation payment.

Please contact CRU if you requested a Certificate of NHS charges, but did not receive it by the time of making a final compensation payment. This is particularly important if you notified CRU of hospital attendance and expect NHS charges to have been incurred. We will tell you if the Certificate of NHS charges has been issued or if enquiries are still ongoing. This will help to avoid you receiving a demand for payment after your file has been closed.

CRU will issue a Certificate of NHS charges for all cases (except disease claims) that occurred after 29 January 2007. Therefore, if you have not received your Certificate of NHS charges, you should not assume that there are no charges to pay.

The Certificate of NHS charges will include:

details of the injured person’s identity
the date of personal injury which gave rise to the compensation claim
the name and responsible body (NHS Trust or Health Board) at which the treatment took place
details of the amount of treatment provided, with or without admission
the name of the responsible ambulance trust who provided the service
the validity period of the Certificate of NHS charges
the total NHS charges due to be repaid up to the maximum recoverable amount

If there is more than one compensator involved in the compensation claim, provisions under the 2003 Act allow apportionment of NHS charges between the compensators. Please advise CRU as soon as possible if you are:

apportioning liability with one or more compensators
not working together with one compensator co-ordinating

CRU will then advise you of the evidence of the agreement over liability that must be provided before a revised Certificate of NHS charges can be issued.

A Certificate of NHS charges will usually, be valid for the life of the claim. If the compensator advises that no NHS treatment was provided, then CRU will issue a nil Certificate of NHS charges. It should be noted that CRU performs compliance checks, and where treatment is identified, a revised Certificate of NHS charges may be issued. The revised NHS Certificate will supersede the previous Certificate of NHS charges. This procedure also applies to those cases which have already been settled.

Please tell CRU as soon as possible when you know the outcome of the compensation claim, even if you did not make a compensation payment or you are in possession of a ‘nil’ certificate. This will allow us to close our records. Form CRU102, which accompanies the CRU Certificate should be used for this.

Payment of the NHS charges should only be sent to CRU when a compensation payment has been made to the injured person. If you send a payment to CRU, and a compensation payment has not been made to the injured person, CRU will refund the payment. The compensator will then be required to resubmit payment at the appropriate time.

10.9 Changes to the Certificate of NHS charges

Normally the amount of NHS charges, contained in the Certificate of NHS charges, cannot be increased where CRU has been supplied with the information in accordance with Section 160 of The Health and Social Care (Community Health and Standards) Act 2003/regulation 5 of The Personal Injuries (NHS Charges) (General) and Road Traffic (NHS Charges) (Amendment) Regulations 2006.

If a compensator has provided CRU with incorrect or insufficient information, the CRU is legally entitled to increase the Certificate of NHS charges. Section 156 (6) of The 2003 Act. Therefore, CRU can increase the Certificate of NHS charges if incorrect details are provided regarding:

the injured person
the injury
the date of incident
the hospital details
any other material fact

There are no time limits for compensator error reviews. We can conduct an error review after the compensator has settled the claim.

10.10 NHS reviews

If you think that the information on the Certificate of NHS charges is wrong, you can ask CRU to look at the case again by way of a review. A review request should be made in writing and must provide the reasons why you think the Certificate of NHS charges is wrong. Any relevant evidence that is thought to be helpful should also be included with the review request.

For incidents after 29 January 2007, Section 156 of the 2003 Act and The Personal Injuries (NHS Charges) (Reviews and Appeals) and Road Traffic (NHS Charges) (Reviews and Appeals) (Amendment) Regulations 2006 provide that a review request must be submitted:

whilst the claim is live
within three months from the date that the compensation payment was made to the injured person, or
within three months of the issue of the Certificate of NHS charges if it was issued after the final compensation payment was made to the claimant

A review may be made on the following grounds:

a mistake (whether in computation or otherwise) occurred in the preparation of the Certificate of NHS charges
the amount specified in the Certificate of NHS charges is in excess of the amount due
it appears that a ground for appeal is satisfied

When a review request is received, CRU will look at the:

NHS charges recorded
the information provided by the NHS Trust, Ambulance Trust or Health Board

Any errors, omissions or other changes, which may affect the outcome of the review, will be taken into account, even if unrelated to your reasons for requesting the review.

If there is no reason to change the Certificate of NHS charges, CRU will ask the appropriate NHS Trust or Health Board to check their records and confirm that the treatment details provided are correct, and relate to the incident for which compensation has been claimed.

Once the review is complete, CRU will either:

confirm in writing that the Certificate of NHS charges is correct
revoke or change the Certificate of NHS charges and issue a revised version

CRU can only increase the total amount of NHS charges when the compensator has provided incorrect or insufficient information. Where this occurs the compensator will be liable to pay the difference to DWP. See Changes to the Certificate of NHS charges for more information.

10.11 NHS appeals

The Welfare Reform Act 2012 introduced changes to the appeals process so that more disputes against DWP decisions can be resolved without the need for referral to HMCTS.

The Appeals section explains the changes to the appeals process for CRU Certificates from 28 October 2013. The key changes are mandatory reconsideration and direct lodgement. However, Certificates of NHS charges are not subject to mandatory reconsideration but are subject to direct lodgement to HMCTS from 7 November 2013.

If you think that the information on the Certificate of NHS charges is wrong, you can still ask CRU to look at the case again, by way of a review, before you consider making an appeal.

A review request should be made in writing and must provide the reasons why you think the Certificate of NHS charges is wrong. Any relevant evidence that is thought to be helpful should also be included with the review request – please see NHS reviews for further information.

If you think the Certificate of NHS charges is wrong following a review, you can make an appeal. Your appeal must be made in writing, giving reasons why you think the Certificate of NHS charges is wrong. You should use the appeal form for Compensation Recovery Unit on GOV.UK.

Your appeal must be sent directly to HMCTS. The address to send your appeal to is on the form. You must also include a copy of the Certificate of NHS charges with your appeal, otherwise HMCTS will send it back to you.

You must make your appeal no later than 3 calendar months after the latest of:

the date on the Certificate of NHS charges, or
the date on which the compensation payment was made to the injured person, or
if the Certificate has been reviewed, the date the Certificate was confirmed or a fresh Certificate was issued

If your appeal is late, HMCTS will contact you to ask why it was not made on time. Your appeal may not be allowed to go ahead if you do not have a good reason why it was late.

An appeal must be made on one or more of the following grounds:

an amount specified in the Certificate of NHS charges is incorrect
an amount specified takes into account treatment which is not NHS treatment received by the injured person, in respect of their injury, at an NHS hospital
the ambulance which transported or treated the injured person, is not an NHS ambulance service
the payment on the basis of which the Certificate of NHS charges was issued is not a compensation payment

After HMCTS has received your appeal and Certificate of NHS charges, they will ask CRU to provide a written response to the appeal.

CRU will treat a request for an appeal that does not comply with the above grounds as being invalid and will refer it back to HMCTS with a request for it to be struck out. A tribunal judge will then decide if the appeal can be accepted.

Waiver applications

In cases of exceptional financial hardship, the requirement to pay NHS charges, before an appeal can be made, may be waived. An application for a waiver must be sent to CRU no later than 3 months after the date on the Certificate, or if later, the date on which the compensation payment was made. The application must also provide details of the exceptional financial hardship that would be caused if NHS charges were paid.

(Regulation 4 of The Personal Injuries (NHS Charges) (Reviews and Appeals) and Road Traffic (NHS Charges) (Reviews and Appeals) (Amendment) Regulations 2006)

A decision to waive the requirement to pay NHS charges before an appeal is made does not signify that payment of NHS charges will be waived if a tribunal confirms the Certificate of NHS charges.

The tribunal may decide that the amount on a Certificate of NHS charges is correct or it may increase or decrease the amount of charges to be paid.

Following the decision of the tribunal, CRU will:

confirm the Certificate of NHS charges
issue a revised Certificate
revoke the Certificate

Where the amount on a Certificate of NHS charges is increased following an appeal the compensator will be liable to pay the balance of NHS charges to DWP.

Where the amount on the NHS Certificate is reduced, the balance will be recovered from the NHS Trust, Ambulance Trust or Health Board and will be refunded to the compensator.

An appeal to the Upper Tribunal against the decision of an appeal tribunal may be made on the grounds that the appeal tribunal’s decision was erroneous in law. An appeal can be made by:

the Compensator
the Secretary of State
Scottish Ministers

Before you can appeal to the Upper Tribunal, you must have received a written statement of the appeal tribunal’s decision, and applied to HMCTS for permission to appeal.

The appeal tribunal will send you details of how to appeal and the time limits after your appeal has been heard.

The form needed to appeal to the Upper Tribunal.

Question 11

11. 
NHS advice

Accepted Answer

11.1 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:

11.2 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 3 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 3 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.

If this is done the percentage of the contributory negligence will be rounded up or down to the nearest full percentage point. If a claimant has accepted one-third of the responsibility the Certificate of NHS charges would be reduced to 67% of the total. If the claimant accepted they were two-thirds 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.

11.3 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
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
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
offer and acceptance letters that clearly show the:
acceptance of responsibility by the claimant
amounts or percentage of agreed responsibility involved

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.

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 to speed up the negotiation process
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: request liability review form – CRU1503 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. 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

11.4 Goodwill or 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 King.

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.

11.5 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.

11.6 Fatal accidents and 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 consider 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
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.

11.7 Frequently asked questions

Who is liable to pay NHS charges?

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. See road traffic accidents occurring prior to 29 January 2007 for further information.

Will the claimant make up the difference in cases where the Certificate of NHS charges has been reduced to reflect contributory negligence?

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.

Does contributory negligence apply to CRU benefits?

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.

Why can’t emails or telephone conversation notes be used as evidence in contributory negligence cases?

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.

The claimant accepted they were one-third responsible for their injuries and we paid accordingly. Why did you ask for more money?

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.

Why did I not receive my Certificate of NHS charges in 28 days?

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.

I have only received a ‘nil’ benefits Certificate. Does that mean there are no NHS charges even though I notified CRU of a hospital?

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).

I have not received my Certificate of NHS charges. What should I do?

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.

11.8 Road traffic accidents occurring before 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 5 April 1999
an injury or fatality is suffered as a result of the use of a vehicle on a road
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 3 months of the date on which the compensator made full repayment of NHS charges to CRU. Repayment of charges before appeal cannot be waived.

Fatal accidents

NHS charges are recoverable in fatal accident cases occurring before 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.

Question 12

12. The law in Northern Ireland – NHS charges

Accepted Answer

12.1 NHS cases involving Northern Ireland

The law on the Health Services charges scheme in Northern Ireland (NI) is contained in part II of the Health and Personal Social Services Act (NI) 2001. This Act equates to the Road Traffic (NHS Charges) Act 1999 and introduced changes in respect of the recovery of Health Services (HS) hospital charges arising from road traffic accidents. The administrative arrangements introduced by the Act apply to all compensation payments made on or after 2 April 2001 irrespective of the incident date. However, the charges vary depending on the incident date.

In line with the GB scheme, the NI scheme was expanded on 29 January 2007.

12.2 Injured person resident in Northern Ireland

Where the injured person is a resident of Northern Ireland, for benefit recovery purposes the claim is handled by the Northern Ireland Compensation Recovery Unit. Where treatment has been provided at a hospital in England, Scotland or Wales, the DWP Compensation Recovery Unit (CRU GB) will need to be involved to recover any potential NHS charges. The following procedures are in place:

on receipt of a CRU1 from the compensator the claim will be taken onto both GB and NI systems, and you will be notified that this has been done
the claim will have 2 reference numbers, one relating to the CRU (GB) and one relating to the CRU (NI)
the CRU (GB) will issue an NHS Certificate and CRU (NI) will issue the benefits Certificate and HS Certificate
you will be liable to repay any NHS charges to CRU (GB) and any benefit recovery and HS charges to CRU (NI)

Where an injured person makes a compensation claim for personal injury and has received hospital treatment in Northern Ireland as well as England, Scotland or Wales, charges will be recoverable under both:

For accidents before 29 January 2007 hospital treatment will only be recoverable under the Great Britain scheme or the Northern Ireland scheme, not both. CRU (GB) could only recover for NHS treatment if the compensation payment was made from a policy issued in accordance with The Road Traffic Act 1988. CRU (NI) could only recover the HS charges if the compensation payment is from a policy issued in accordance with The Road Traffic (Northern Ireland) Order 1981

12.3 Injured person resident in England, Scotland or Wales

Where the injured person is a resident of England, Scotland or Wales for benefit recovery purposes the claim is handled by CRU (GB). Where treatment has been provided at a hospital in Northern Ireland, CRU (NI) may recover the HS charges.

The following procedures are in place:

on receipt of a CRU1 from the compensator, the claim will be taken onto both systems, (GB and NI) and you will be notified accordingly.
the claim will have 2 reference numbers, one relating to CRU (GB) and one relating to CRU (NI).
CRU (NI) will issue a HS Certificate while CRU (GB) will issue a benefits Certificate and an NHS Certificate
you will be liable to repay any HS charges to CRU (NI) and any benefits and NHS charges to CRU (GB)

Where an injured person makes a compensation claim and has received treatment as a result of that injury at a hospital in Northern Ireland as well as England, Scotland or Wales, hospital treatment charges will be recoverable under both:

The charges cap is not shared between the 2 countries and therefore charges would be incurred up to the limit for both of the respective caps.

For accidents before 29 January 2007 any hospital treatment will only be recoverable under the GB scheme or the Northern Ireland scheme, not both. CRU (GB) could only recover for NHS treatment if the compensation payment was made from a policy issued in accordance with The Road Traffic Act 1988. CRU (NI) could only recover the HS charges if the compensation payment is from a policy issued in accordance with The Road Traffic (Northern Ireland) Order 1981.

12.4 Disclosure of information

The claimant may apply for access to all DWP records. In certain circumstances this information may be provided to an appointee appointed by the Secretary of State or an attorney under Power of Attorney.

A solicitor representing the claimant can have copies of documents relating to DWP records following an incident/condition for which compensation has been claimed providing a written letter of authority from the claimant is produced.

A request for access to DWP records by a defendant or their representative (following a claim to compensation) will be denied unless a court order which identifies specifically the document required is produced. However, the Social Security (Recovery of Benefit) Act 1997 allows the defendant to have ‘particulars’ of benefits shown on a Certificate. This may mean a full explanation of the benefit award but not necessarily copies of the documents concerned. If a claim has been settled or ongoing, written authority from the claimant must be obtained before consideration is given to the release of copy documents.

If a claimant contacts the Department directly (and not through a solicitor) then the full DWP records may be released. If there is agreement for the defendant to see these records, it is the responsibility of the claimant to forward the documents.

Where compensation is sought for professional negligence and the particulars of a claim are such that the Social Security (Recovery of Benefits) Act 1997 does not apply, benefit information will not be supplied to the Defendant as ‘offsetting’ is not appropriate under the 1997 Act.

Question 13

13. 
CRU GB electronic communications

Accepted Answer

CRU has developed a number of electronic methods of communicating with insurance companies, as part of the e-government initiative.

13.1 Claims Underwriting Exchange Personal Injury (CUE PI) database

CRU has an electronic link with the Claims Underwriting Exchange Personal Injury (CUE PI) anti-fraud database. Whilst conducting anti fraud searches on the database CUE PIusers can also do the following electronically:

register claims (CRU1)
request Certificates (CRU4)
receive CRU Certificates (CRU100) with or without financial data
receive NHS Certificates (NHS100) with or without NHS treatment and ambulance charges
advise CRU when a case is settled (CRU102)
receive the two-year reminder (CRU250)
receive requests for payment (CRU18 series)

13.2 Electronic Data Interchange (EDI)

CRU can exchange data electronically between our computer system and the computer systems held within certain insurance companies. At the moment we can offer you the opportunity to do the following business transactions via this electronic method:

register Claims (CRU1)
request Certificates (CRU4)
receive certain types of Certificates (CRU100)
receive NHS Certificates (NHS 100) with or without NHS charges
advise CRU when a case is settled (CRU102)

13.3 The CRU e-service

The CRU pages provide the facility to:

request a Certificate (CRU4)
advise CRU when a case is settled (CRU102)

If you would like more information on these initiatives please contact the Complex Case team at cru.udt@dwp.gov.uk.

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