Select Committee on Delegated Powers and Deregulation Sixth Report



10.  Subsection (5) allows definition in regulations of compensation payments which are not to count for the purposes of the Bill.

Liability for NHS charges is triggered by the payment of compensation. All payments of compensation made after the new system comes into effect will be caught by the new provisions unless this power is used. The Bill will bring into the scheme for the first time payments of compensation made by the Motor Insurers Bureau (which meets claims in cases where the car driver is uninsured or untraceable). We wish however, as recognition that this is a new liability, to restrict the Bureau's responsibility for NHS charges to accidents which happen after the new scheme comes into force. The regulation making power in subsection (5) will enable us to specify that compensation payments made by the Motor Insurers Bureau but relating to accidents happening before the new scheme starts will not attract NHS charges.

11.  There may, over time or perhaps when charges are being uprated, be other such occasions when a type of payment needs to be excluded from the provisions of the scheme and the power in subsection (5) allows the flexibility for this to happen.


12.  Clause 2 introduces the concept of a certificate of NHS charges. This is largely modelled on the system of certificates of recoverable benefit found in the terms of the Social Security (Recovery of Benefits) Act 1997. It is intended that the Compensation Recovery Unit which undertakes the work associated with the recovery of benefits will also act to recover NHS charges. The two systems have been designed to run in parallel so that efficiencies can be achieved.

Subsection (10) provides for regulations to specify the way in which a certificate of charges is applied for and the time period in which the application has to be made.

This will be an operational issue affecting not just the Compensation Recovery Unit but also the insurance industry. It will need to be flexible to allow for changes in procedure by either party.


13.  Clause 3 sets out what information will be contained in the certificate of NHS charges.

Subsection (2) allows the amounts which will be charged (or formulae for calculating those amounts) to be set out in regulations.

Currently hospitals have to calculate costs in every individual case, this regulation will enable a tariff of charges to be used. This will free hospitals from the task of calculating costs and give insurers the ability to check costs in each case. The tariff may of course be changed from time to time and subordinate legislation is therefore appropriate in line with all other NHS legislation and previous relevant road traffic legislation.

14.  Subsection (4)(a) allows the regulations made under subsection (2) to set a limit for charges in any one case

It is not intended that the compensator will have to face open-ended charges and a ceiling will be set for the maximum charges due in any one case. This ceiling may, of course, be changed from time to time, perhaps when the tariff figures are uprated, and so will be set in subordinate legislation.

15.  Subsection (4)(b) allows the regulations made under subsection (2) to provide for more then one set of charges to be available depending on the circumstances of the claim and, in particular, the date of the accident giving rise to the claim

This power will enable different charges to apply in different cases. Initially this will be used so that the Compensation Recovery Unit can recover charges at a lower rate for accidents happening before 2 July 1997, the date from which full costs of treatment begin to be recovered.

16.  Subsection (4)(c) allows the regulations made under subsection (2) to provide for cases where the accident victim receives treatment at more than one hospital

In cases where an accident victim is transferred between hospitals a system is needed so that the charges, subject to the overall ceiling, can accommodate treatment received in more than one hospital. This is a detailed procedural matter more suited to delegated power.

17.  Subsection (4)(d) will allow the regulations made under subsection (2) to say which party is responsible for meeting NHS charges where more than one compensator is making a compensation payment in respect of the same accident.

It is possible, for example after a motorway accident involving many vehicles, for a person to be in a position to receive compensation from more than one compensator. Detailed provisions for more complicated cases such as these are appropriate to subordinate legislation.

18.  The amounts to be charged may be changed from time to time in the future.

Subsection (5) allows the regulations made under subsection (2) to apply to any NHS certificate issued after the regulations come into force unless compensation has already been paid.

This makes clear that if the regulations are changed in future the amounts which will appear on certificates are those in force through regulation at the time the certificate is issued. The exception will be where an application for a certificate is made after compensation is paid, in which case the amount to appear on the certificate will depend on the regulations which were in force on the day compensation was paid.

19.  We envisage that a certificate of NHS charges will include a simple explanation of the costs in each case such as the name of the trust giving treatment and the number of days at £x = £y.

Subsection (6) allows regulations to specify the full amount of information about how the charges have been calculated that a compensator will be entitled to request.

This will allow us to ensure that compensators can have access to sufficient information to check the calculations but to make clear this does not extend to other information, for example, details of medical treatment.


20.  The Bill introduces for the first time a formal system of review against NHS charges.

Subsection (1)(a) gives powers to set a time limit within which requests for review must be made and also to specify in what circumstances a review can be requested.

It is intended that these provisions will mirror those applying to the Recovery of Benefits legislation.


21.  The Bill introduces for the first time a formal system of appeal against NHS charges.

Subsection (4)(a) provides for regulations to be made setting out the way and time in which appeals are made;

Subsection (4)(b) the procedure to be followed and

Subsection (4)(c) enables an appeal to be treated as a review in the first instance.

It is intended that these provisions will mirror those applying to the Recovery of Benefits legislation.


22.  This Clause sets out the functions of the appeal tribunal.

Subsection (5) specifically allows regulations (made under powers in section 7) to provide for the non-disclosure of medical evidence submitted to an appeal tribunal.

The presumption will be that all information submitted to an appeal tribunal will be available to all the parties involved. Subsection (5) recognises that in some cases medical evidence may come before the appeal tribunal which could cause distress or harm if it was made public. This regulation making power is specifically to ensure that appeal tribunals receive the power to withhold such information and will mirror the provisions of the benefit recovery legislation.

23.  Subsection (6) of the Clause defines "appeal tribunal". In England and Wales appeals will be heard through the existing tribunals for Social Security appeals as these tribunals are experienced in handling the similar issues found in benefit recovery cases. Appeals in Scotland will however be heard by other tribunals.

Subsection (6)(b) contains the powers to enable appeals tribunals to be established in Scotland for this purpose.

Subsection 7 extends the powers of subsection (6)(b) to include the Scottish tribunal constitution and procedures.


24.  Clause 9 contains provisions for further avenues of appeal.

Subsection (1) provides powers for further appeals in England and Wales to be made to the High Court on points of law.

We will use the regulations to make clear who has the right to make such an appeal. It is not for example our intention that hospitals will have such a right.


25.  Where a review or appeal against the amount of NHS charges due has taken place and, as a result, there are changes to the amounts due Clause 10 provides the framework for amending any payments made.

Subsection (2) enables regulations to specify who is to make repayments in cases where too much as been paid.

This power is necessary as payments of NHS charges may have already have been forwarded to the relevant hospital or hospitals.

Subsection (3) enables regulations to cover additional payments due where too little has been paid and,

Subsection (4)(a) enables the Act to be modified if necessary to deal with who pays in cases of over/under payment.

Subsection (4(b) allows Secretary of State to determine matters raised about the regulations.

These powers are necessary as the Bill provides the structure for dealing with an uncomplicated, basic payment of compensation. We also need however to provide for more complex types of payment such as where there are two hospitals or over or under payments. These more complex cases are all suitable for more detailed consideration in regulations. As NHS charges are normally to be paid by an insurer the power to modify the Act, found in subsection (4)(a), enables us to specify that, in the circumstances of over or under-payment, payments will occasionally need to be made by other parties.


26.  For the new system to work information will have to be given to and by the various parties involved. Clause 11 is about the provision of this information.

Subsection (2) enables regulations to specify what information will be sought.

In an ordinary case we envisage this information to be restricted to receiving from the insurer details of the claimant and the claim and whether NHS treatment took place and, if it did, where it took place. More detailed information should only be sought in cases of appeal.

27.  The new scheme depends on those who might make a compensation payment falling within the scheme notifying the Compensation Recovery Unit, without being asked, that a claim for compensation has been made, and providing certain information about the claim.

Subsection (3) gives a power to define what is meant by a claim and to define the person against whom the claim is made.

This will enable regulations to make clear who has the obligation to give the information and when the obligation arises. There are variations in claims handling practice within the insurance industry and changes in practice over time. We do not intend that these variations and developments should affect our scheme. These delegated powers will enable the definitions to be changed so as to keep abreast of current insurance practices.

28.  Having identified the people who must give information and specified what that information is to include:

Subsection (4) enables the time limits and manner in which that information is to be provided to be specified in regulations.

Again, it is our intention that these regulations will follow closely the provisions found in the benefit recovery scheme.

29.  Information about the nature of treatment received in an NHS hospital is confidential. This confidentiality will be fully respected and due to the simplicity of the tariff structure such information will not routinely be needed. It will however be necessary for medical information to be supplied in certain cases. This will be restricted to cases where the charging of NHS costs has been subject to appeal on the grounds that the treatment given was not in respect of the relevant road traffic accident.

Subsection (5) will enable the strict conditions under which confidential medical information can be sought to be specified.


30.  Clause 13 deals with the payment of NHS charges recovered by the Secretary of State to the hospitals which provided the treatment.

Subsection (4) will provide powers to regulate how and at what interval the money is transferred from Secretary of State to hospitals.

Subsection (5) will enable detailed provision to be made in those cases where the NHS trust which provided the treatment no longer exists.

Generally speaking it should usually be possible to identify another trust which has assumed responsibility for the previous trust's liabilities. As this will mean that Secretary of State can no longer comply with the Act (as he will not be able to return the money to the original trust) this regulation also provides for modification to the Act to allow him to pay the money elsewhere.


31.  Clause 14 deals with the various forms which compensation payments may take.

Subsection (1) enables regulations to provide for cases where compensation is paid into court by more than one lump sum, or by periodical payments or where an interim payment is involved.

The Act itself places an obligation on the person paying compensation to pay NHS charges. Where however an insurer makes a payment into court and that payment is later paid out to the accident victim it will be the court which makes the payment to the accident victim and not the insurer.

Subsection (2) enables regulations to be made, including modification of the Act, to deal with payments into court and specifically when they are to count as payments of compensation leading the NHS charges.

The modification to the Act will allow the payment made to the accident victim by the court to give rise to an obligation to pay NHS charges on the compensator.


32.  Some Ministry of Defence hospitals offer treatment to civilian road traffic accident victims and they are included in the Bill so that they can take advantage of the central collection of charges.

Subsection (1) will allow regulations to be made to deal with any procedural issues which may be different with regard to MoD hospitals.


33.  Appeals under the new system are being heard by social security appeal tribunals. These tribunals are currently undergoing change. The Bill, as drafted, deals with the tribunals as they will be at some stage in the future. Clause 20 provides transitional provisions so that in cases where appeals against NHS charges are made before the changes to the tribunals are completed there will be access to the tribunals as they are currently constituted.

Subsection (1) provides for an order to modify section 7 of the Act (which deals with appeals against a certificate) during the transitional period.

Subsection (3) provides for an order to modify section 8 of the Act (which deals with the procedure to be followed by appeal tribunals) during the transitional period.

Subsection (4) allows for the transitional period itself to be specified in regulations.

34.  The Act will specify that appeals in Scotland will be dealt with by separate Scottish tribunals. While this will be the case in the future the Bill provides for appeals in Scottish cases to be heard by the same tribunals hearing cases in England and Wales for the short period before the Scottish tribunals are established.

Subsection (6) provides for an order to modify section 7 of the Act enabling Scottish cases to access the Social Security tribunals during a transitional period.

Subsection (8) provides for a similar order to modify section 8 of the Act.

Subsection (9) allows the for the transitional period itself to be specified in regulations.

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