Select Committee on Delegated Powers and Deregulation Sixth Report



Memorandum by the Department of Health


1.  When a person receives treatment at a hospital (other than one run for profit) for injuries sustained in a road traffic accident and subsequently makes a successful claim for compensation for personal injury against the holder of a compulsory motor vehicle insurance policy, then the hospital can require the compensator to meet some of the costs of the victim's treatment.

2.  This provision has existed in road traffic legislation for more than sixty years and is currently found in sections 157 and 158 of the Road Traffic Act 1988. It is not however supported by any central administrative arrangements for collection of the charges due.

The Bill

3.  The purpose of the Bill is to provide a national administrative system to ensure that all cases in which recoupment of NHS charges is possible are identified and that the charges are collected and passed on to the hospitals which provided treatment. It also provides for the method of calculating the cost to the NHS to be changed. A tariff of charges will be established, simplifying cost calculation. Charges will also reflect more closely the actual costs of treatment.

4.  The collection of charges will be undertaken on the Secretary of State's behalf by the Department of Social Security's Compensation Recovery Unit. This will allow NHS charge recovery work to be carried out in parallel with the existing system for recovery of state benefits. The legislative framework of the two systems, including regulation making powers, is therefore deliberately similar.[5]

5.  The Road Traffic (NHS Charges) Bill contains 21 clauses in which there are powers to make delegated legislation. These powers are almost entirely concerned with detailed operational issues which will control the day to day administration of charge collection. For example the payment of NHS charges falls due when a compensation payment is made. It is therefore necessary to have powers to deal with the variations which can occur such as payments into court, interim payments, structured settlements etc. To allow for all these variants on the face of the Bill would result in primary legislation of great complexity. As payment of compensation is a continually evolving area it is necessary to have the flexibility to cope with new or amended types of payment.

6.  In addition we have provided for the first time rights of review and appeal against the amount of NHS charges. In England and Wales appeals will be heard by the appeal tribunals which also hear appeals in benefit recovery cases. In Scotland, where access to the appeal tribunals will be complicated by devolution, appeals will be heard by tribunals specifically established for this purpose.

7.  Including detailed provisions covering operational issues and procedures for appeals would also lead to the primary legislation becoming cluttered. We therefore propose to leave to secondary legislation technical matters and matters where flexibility is necessary. For these reasons the Government considers that the matters to be dealt with by secondary legislation under this Bill are better dealt with in that manner than being included in primary legislation. This applies in varying degrees to all the powers in the Bill except where the description of the power in this Memorandum makes it clear that other considerations are of equal or greater significance.

8.  Affirmative resolution procedures are thought to be appropriate only in exceptional cases. The powers in this Bill, in common with all other NHS legislation, provide that regulations should be subject to the negative resolution procedure.

9.  A summary of the powers contained in the Bill is attached as Annex A to the Memorandum.

5   The Social Security (Recovery of Benefits) Act 1997; The Social Security (Recovery of Benefits) Regulations 1997 [SI 1997/2205]; The Social Security (Recovery of Benefits)(Appeals) Regulations 1997 [SI 1997/2237]  Back

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