Caroline
Flint: I will attempt to answer all the points that have
been raised. However, some rather interesting scenarios have been
mentioned about which I will have to write to hon. Members, if that
will suffice. I shall try to deal with as much of what they have raised
as possible. On the
employers liability compulsory insurance market, there were worries
that the regulations and the extension of provision would lead to
premiums for employers shooting up. I shall preface my remarks by
saying that we consulted with all parties on the regulations in order
to try to get this as right as possible, while placing as few burdens
as possible on employers.
On premiums, the report on the
ELCI market published by the Department for Work and Pensions in
December 2003 recommended that the implementation of the injury costs
recovery scheme be delayed for a year. The Department of Health
accepted that, because we felt that we needed to look at the market a
little more. However, at the end of 2004, when the draft regulations
were considered, further concerns were raised about the timing of the
introduction of the ICR scheme, as the ELCI market was still considered
fragile, so it was delayed again.
Since then, DWP and the Health
and Safety Executive have implemented most of the recommendations of
the 2003 report. They have required insurers and brokers to provide
longer renewal periods to enable businesses to shop around for better
deals. They have introduced a scheme called “Making the market
work” to help trade associations and others to access the
insurance market more easily by providing details of good practice in
health and safety. They have provided improved guidance information
about ELCI on the new small business service website. That is important
because employers are particularly concerned about health and safety at
work. We hope that
the measures will stimulate improvements in health and safety at work
because people prefer not to have to pay out premiums. That has been a
positive aspect of our discussions. We would much rather see fewer
accidents at work for which an employer is liable than have to recover
costs after people have been injured or killed as a result of poor
health and safety practices, regardless of the fact that the NHS might
get some money back. That is not the first principle in this
case.
We are producing new procurement
guidance to ensure that all bodies that contract with the public sector
have valid ELCI, and we published a framework for vocational
rehabilitation in October 2004. In February 2005 we removed the need
for sole owners of limited companies to obtain ELCI.
Average premium rises quoted by
the Association of British Insurers for 2004 suggest that there were
lower than expected rises of 7 per cent. A number of insurers reported
that, in response to competitive pressures towards the end of 2004 and
into 2005, premium income was flat or even declined. We estimate that
the impact of the scheme will be that premiums increase by only 1.5 per
cent., and that estimate has been confirmed by the ABI. Following the
postponements in order to look into the issue, we are now in the best
possible position to bring forward the regulations so that the scheme
can become live on 29 January.
On contributory negligence, I
can tell the hon. Member for Westbury that one of the key messages to
come out of the consultation on the draft regulations that took place
in 2004 was that the Department needed to look again at how the ICR
scheme would deal with contributory negligence. To allow contributory
negligence to be taken into account in a much wider range of cases, new
primary powers were included in the Health Act 2006. Today’s
regulations do not make provision for contributory negligence to be
taken into account, as they are made under powers in section 153 of the
Health and Social Care (Community Health and Standards) Act 2003, which
is subject to the affirmative procedure.
The power to make regulations
for contributory negligence is subject to the negative resolution
procedure. However, I can reassure the Committee that we intend to make
such regulations. Three sets of regulations are to be introduced. The
ones on contributory negligence, reviews and appeals will be placed
before the House on 18 December. They will set out in detail how we are
dealing with the issue. I shall follow up some of the hon.
Gentleman’s points and will write to him in due
course. The hon.
Member for Southport asked whether, in circumstances in which an
individual, for whatever reason, does not pursue compensation, the NHS
could pursue it independently. The short answer is no. This is a
secondary procedure, following up the claim of the individual for
compensation, which is the right thing to do. We are trying to make the
system as effective and as simple as possible. As far as I understand
it, therefore, the NHS would not pursue a claim in the first instance
unless the individual who had been injured through negligence was
already pursuing the claim.
If I may, I shall write to the
hon. Gentleman on the matter of who has the first call on compensation,
and what happens if there are insufficient funds, and also on the
payment by results system and how that will affect the arrangement
under the regulations. One could, I suppose, have a system in which the
trust keeps a detailed catalogue of the treatments that have been
given, dot by dot, and then tries to work out the actual cost on each
occasion. That would create quite a burden and a top-heavy
administration, which is why we have chosen what some may consider a
blunt
instrument. The average tariff system is an effective one, however, and
it has proved its worth in the RTA
scheme. The tariffs
will be uprated yearly, but as we are laying the regulations with the
new tariffs in the new year, we shall defer to 2008 next April’s
annual uprating, which would otherwise have been very close. We thought
that it would be nonsense to change all the tariffs within a few months
of laying the regulations.
Dr.
Pugh: I accept that I shall receive a letter on the
interaction with payment by results. It seems to me that contributory
negligence cases will be the most complex, and the cost-benefit
analysis for them will be quite different from that for a
straightforward compensation case. I mentioned earlier the possibility
that a case proceeds but is scarcely worth pursuing. Who decides to
cease the pursuit in such cases? Is it the compensation agency or the
acute trust
itself?
Caroline
Flint: I shall follow up with more detail on that. The
individual who is the injured party must pursue the claim. If there is
contributory negligence, the matter is more complex. Ultimately,
however, the NHS is in a secondary position in all cases; things only
kick in for the NHS if compensation has been paid. So the matter would
have to be resolved between the parties—the claimant and the
party against whom they claim. The scheme imposes a legal duty on
people who pay compensation to inform the compensation recovery unit.
They would be breaking the law if they did not. That is when the CRU
can enter the picture and reclaim costs for the NHS.
In a straightforward situation,
an individual claimant might have nothing further to do with the NHS
process, because the CRU would follow up and establish the relevant
number of days and the number of ambulance journeys. The measure is a
secondary one, therefore. A different view may be taken in future, but
the means that we have chosen is the best way to proceed in trying to
keep the system simple and it seems to have worked pretty well for the
RTA scheme. I shall have a look in Hansard and, if I have not
dealt with anything that the hon. Gentleman said, I shall write to
him. The hon. Member
for Westbury mentioned the ceiling on costs. In the consultation, the
view was that there should be a level above which costs should not go.
I am happy to provide the hon. Gentleman with more detail on that, but
all parties, including employers, felt that £37,100 was the
right sort of
ceiling. I think that
both the hon. Member for Westbury and the hon. Member for Southport
asked about when a person makes a claim and then dies. Off the top of
my head, I would say that the claim could be pursued by, for example,
the individual’s family and, therefore, the same procedure would
be followed. When the claim is resolved, and if compensation is
offered, the compensation recovery unit would be notified and NHS costs
recovered.
Dr.
Murrison: What happens when no claim has been made, either
by the estate or the person who died? I guess that that touches on the
point made by the hon. Member for Southport. For example, a claim may
cease when death intervenes. It touches also on my point about the
ceiling. I imagine that if somebody died without making a claim, it
probably would not be worth the NHS’s while pursuing the claim,
given the imposed ceiling. I wonder, therefore, about the artificiality
of that ceiling. Indeed, if it did not exist, would it be in the
interest of the NHS to pursue claims in which death had intervened and,
therefore, the injured party had not made a
claim?
Caroline
Flint: As I understand the scheme, the NHS has no scope to
pursue a claim if the injured party has not made a primary claim,
regardless of whether they die. The individual or, where there has been
a fatality, somebody on their behalf, must make the primary claim. As I
said before, the NHS and the CRU get involved only as part of a
secondary action. That was
the basis of the discussion about the extension when Parliament
considered the legislation, although I realise that people may disagree
with that. To give a clear answer to a fair question from the hon.
Member for Westbury, no, the NHS would not be able to pursue a claim
unless an injured party had made a primary
claim. I hope that I
have covered most relevant points. I shall check Hansard to see
whether anything is outstanding and, if so, write to hon. Members, but
I hope that we all agree that the regulations are a logical extension
to the road traffic accident scheme—it is fair to the NHS and
the
taxpayer. Question
put and agreed
to. Resolved,
That the Committee has
considered the draft Personal Injuries (NHS Charges) (Amounts)
Regulations
2006. Committee
rose at twenty-eight minutes past Nine
o’clock.
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