Where contributory negligence claims are in respect of a court ruling, judgement or order, (section 153(3) of the Health and Social Care (Community health and Standards) Act 2003 refers), the compensator should provide the following evidence;
a. a statement of the proportion by which the damages payable in respect of the claim are to be reduced, to reflect the injured person’s share in the responsibility for the injury in question, and
b. a copy of the order, judgement, minute or document which provides for that reduction.
For contributory negligence claims that have been settled by an arrangement other than described in section 153(3), the person applying for the reduced certificate should send a report containing the information listed below and signed by the parties to the agreement to the Compensation Recovery Unit. Information in the report should include;
a. a statement that it was agreed by or on behalf of the injured person and the person who proposed to make a compensation payment that the damages payable under the settlement were to be reduced to reflect the injured person’s share in the
responsibility for the injury in question.
b. A statement as to how that agreement was reached;
c. The amount of damages payable under the settlement had there been no such agreement;
d. The amount or proportion by which it was agreed that the damages were to be reduced; and
e. The names of all those involved in the settlement process.
11. Reviews and Appeals
11.1 Reviews
The compensator may ask CRU to review any aspect of a Certificate of NHS charges at any time. For road traffic accidents which occurred pre 29 January 2007, there is no time limit to make a request for a review of NHS charges. For incidents or injuries after 29 January 2007, there is a time limit of 3 months from the date on the certificate, or if later, no more than 3 months from the date the compensation payment was made. The request must be in writing clearly stating the grounds on which a review is being sought.
A review may be requested 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 is in excess of the amount due to the Secretary of State or Scottish Ministers;
• incorrect or insufficient information was supplied to the Secretary of State or the Scottish Ministers by the person who applied for the Certificate of NHS Charges and in consequence the amount specified in the Certificate of NHS Charges was less than it would have been had the information supplied been correct or sufficient;
• it appears that a ground for appeal is satisfied.
When we review the Certificate of NHS Charges we will look at all the NHS charges recorded and 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 apparent reason to change the decision we will contact the appropriate NHS Trusts, Ambulance trusts or Health Boards. We will ask them to check all records to confirm that the treatment details provided to CRU are correct and relate to the incident for which compensation is being sought.
Once the review is complete we will either confirm in writing that the Certificate of NHS Charges is correct or revoke the Certificate of NHS Charges and issue a fresh one. If a revised Certificate of NHS Charges is issued it will cover the same period as the Certificate of NHS Charges it replaces.
We will issue a fresh Certificate of NHS CHarges showing an increase in the amount of NHS charges only where the variation is required as a result of incorrect or insufficient information supplied by the compensator. Where this occurs the compensator will be liable to pay the difference to DWP.
11.2 Appeals
A compensator has the right of appeal against the Certificate of NHS Charges if he thinks that the previous decision is incorrect.
You should use form NHS30 37KB to lodge your appeal. If you prefer we may send the form to you by e-mail as a Word document.
An appeal against a Certificate of NHS Charges may be made on the grounds that either:
• an amount specified in the Certificate of NHS Charges is incorrect;
• an amount so specified takes into account treatment which is not NHS treatment received by the injured person, in respect of his injury, at a health service hospital; or
• From 29/01/2007, the ambulance which transported and or treated the injured person, is not an NHS ambulance service, or;
• Both treatment and ambulance services as mentioned above, or;
• that the payment on the basis of which the Certificate of NHS Charges was issued is not a compensation payment.
An appeal can only be made after final settlement of the compensation claim. Full payment of recoverable NHS charges and all recoverable benefits must have been repaid to CRU. However, for incidents occuring on or after 29 January 2007, in cases where payment of the amount specified in the NHS certificate would cause exceptional financial hardship the requirement to repay prior to appeal may be waived. An
application for a waiver must be sent to the CRU with particulars of the exceptional financial hardship that would be caused by payment of the amount (or amounts) specified in the certificate. This application should be sent to CRU, not later than 3 months after the date on which the compensation payment was made.
An appeal for Road Traffic Accidents prior to 29 January 2007, must be made within three months of the date on which the compensator makes the full payment of NHS charges to the Secretary of State or the Scottish Ministers. For incidents on or after 29 January 2007, the time limit for application is no later than 3 months from the date on the certificate of NHS Charges, or if later, no more than three months from the date the compensation payment was made.
For appeal purposes, orders for provisional damages in personal injury cases made under or by virtue of section 32A(2)(a) of the Supreme Court Act 1981, section 12(2)(a) of the Administration of Justice Act 1982, or section 51(2)(a) of the County Courts Act 1984, are to be treated as having been finally disposed of.
Late appeals may be accepted but only where there are special circumstances for the delay.
No appeal may be accepted if it is made 1 year or more after the date the right to appeal arises.
Appeals involving English and Welsh NHS Trusts will be heard by an independent tribunal administered by The Tribunal Service. Appeals involving Scottish Health Boards will be heard by the Road Traffic (NHS Charges) Appeal Tribunal for Scotland.
The tribunal may decide that the amount on a Certificate of NHS charges is correct or it may either increase it or decrease it.
Following the decision CRU will either confirm the Certificate, issue a fresh one or revoke the Certificate of NHS Charges.
If a waiver of payment of NHS charges was granted, pending the appeal, and the tribunal decision confirms the amount, the appellant will be liable to pay the NHS charges to DWP.
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 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 High Court (England and Wales) or the Court of Session (Scotland), against the decision of an appeal tribunal, may be made by the compensator, the Secretary of State, or the Scottish Ministers on the grounds that the decision was erroneous in law. The appeal tribunal will send details of how to appeal and time limits to you when your appeal has been heard.
In accordance with the Health and Social Care (Community Health and Standards) Act 2003, an Appeal may be made to a Commissioner against any decision of an appeal tribunal, under Section 158, on the grounds that the decision was erroneous in point of law.
12. 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 may 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 his 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 of Recoverable Benefits. This may mean a full explanation of the benefit award but not necessarily copies of the documents concerned. If a claim has been settled and no further compensation is to be paid, consideration will be given to the release of copy documents.
If the compensation claim is 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.
13. CRU GB Electronic Communications
CRU has developed a number of electronic methods of communicating with Insurance Companies, as part of the E-government initiative.