scrutiny: Essential Guide to CRU Benefits and Appeals

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1 scrutiny: Essential Guide to CRU Benefits and Appeals

2 Introduction In writing this guide, we had in mind a broad spectrum of readers from the novice (for whom some of this may be new) through to the more experienced handlers who may find comfort from having a quick reference guide to the essential and key features of CRU benefits, offsetting, tactics and CRU reviews and appeals. The guide includes explanation about features of the CRU scheme which occur commonly in practice and suggestions about how these issues can be appropriately addressed. Kennedys scrutiny team has specialist expertise and an excellent track record of success in handling CRU benefits and NHS charges issues and advising clients on reviews and appeals. Our expertise allows us to predict with accuracy those cases which are likely to be successful and those which are not, so that insurers and defendants know they are investing time and cost wisely in entrusting their CRU appeals to us. We hope you enjoy the guide and find it a useful reference tool. Greg Woods Paul Morris Kennedys is a trading name of Kennedys Law LLP. Kennedys Law LLP is a limited liability partnership registered in England and Wales (with registered number OC353214)

3 Contents Topic Page Number 1. The starting point 2 2. How much to repay and when? 4 3. Offsetting 6 4. Offers and settlement 9 5. Reviews and appeals Notes Key contacts 17 1

4 1. The starting point BACKGROUND When a defendant pays damages to a claimant following a personal injury claim, benefits paid to the claimant, which are attributable to the injury, can be recovered by the DWP from the defendant (the compensator). Whoever actually repays the benefits is called the Compensator. Usually, the compensator will be the defendant s insurer. The CRU (Compensation Recovery Unit) is charged with recovering such benefits from compensators. Similarly, where the NHS provides treatment to an injured claimant, the cost of this treatment is recovered by the CRU from the compensator. The rules governing the recovery of benefits and the recovery of NHS charges are similar, but differ in some important respects. 2

5 WHAT A COMPENSATOR S REPRESENTATIVE MUST DO Complete and send a CRU1 registration form as soon as the claim is notified to them. This asks for basic details, such as the parties names and addresses and (except in the case of a disease claim) the names and addresses of any NHS hospitals the claimant has attended as a result of the accident or injury. The CRU registers the claim and sends a Benefits Certificate and NHS Charges Certificate if you request them to do so. Maintain a valid CRU Certificate at all times, so that you always know the benefits position (you can request a renewal up to seven days in advance). On payment of damages to the injured party, the compensator must repay the total shown on both the Benefits and NHS Charges Certificates. Seek a review of the Certificate before payment of the NHS charges, where an apportionment of liability or agreement on contributory negligence has been made. Don t be tempted to settle a claim without a valid Benefits Certificate a previous nil Certificate is no guarantee that, on renewal, significant benefits will not be included. 3

6 2. How much to repay and when? WHAT IS A COMPENSATOR S LIABILITY TO THE CRU? The CRU identifies what benefits to include in the Benefits Certificate and what NHS charges to include in the NHS Charges Certificate. The compensator must repay all benefits that are both attributable to the injury and have been paid to the claimant during the relevant period. The relevant period Begins on the date of accident or, if a disease claim, when the claimant first claims a listed benefit in respect of that disease. Ends five years later or on payment of final damages, if sooner. Does not end at the date of agreement, order, judgment or interim payment (unless the interim payment is later accepted in full and final settlement). Any benefits paid to the claimant outside the relevant period are not recoverable. The compensator must also repay all recoverable NHS charges attributable to the injury. The amount of those charges represents only a small proportion of the actual cost of the NHS treatment received, although the recoverable amount increases every year. The amount of repayable NHS charges crystallises when the claimant ceases receiving NHS treatment, when the case settles, or when the charges reach the maximum level set by law. 4

7 WHEN DO BENEFITS OR NHS CHARGES NEED TO BE REPAID? Benefits and NHS charges are payable When an interim payment is made On final payment of damages in settlement of claim Note: Further benefits may continue to accrue during the relevant period even after repayment of benefits at the time of an interim payment. WHAT IF THERE IS MORE THAN ONE COMPENSATOR? Liability to repay the total amount on the Certificate is joint and several. This means that each compensator who makes a payment of damages to the claimant is liable to repay all the benefits shown on the Certificate. As each compensator may pay damages on a different date, their respective liabilities to pay benefits may be different. It is for the compensators to agree an appropriate apportionment of benefits between them. Usually, compensators will repay benefits and NHS charges in the same proportion as they paid the damages, but difficulties with apportionment can arise if there are significant delays between each payment. The total liability to the CRU continues to accrue until the claimant s damages are fully paid. 5

8 3. Offsetting OFFSETTING BENEFITS AGAINST DAMAGES Although a compensator is liable to repay all recoverable benefits in full, it is entitled to offset certain benefits against certain heads of damage. Some heads of damage are untouchable or ring-fenced, i.e. no benefits can be offset against them. These include damages for pain, suffering and loss of amenity (PSLA) and any future losses. Offsettable heads of damage Past loss of earnings Past care Past loss of mobility The benefits which can be offset from each head are as follows: Damages for past loss of earnings Employment and Support Allowance (ESA) Jobseeker s Allowance (JSA) Industrial Injuries Disablement Benefit (IIDB) Incapacity Benefit (IB) or Income Support (IS) Also (although much rarer): Statutory Sick Pay paid before 6 April 1994, Reduced Earnings Allowance, Unemployability Supplement, Unemployment Benefit, Invalidity Allowance, Invalidity Pension, Disability Working Allowance, Severe Disablement Allowance and Sickness Benefit. Damages for past care Disability Living Allowance Care (DLAC)* Exceptionally Severe Disablement Allowance Attendance Allowance (AA) Disablement Pension increase for Constant Attendance Allowance 6

9 Damages for past loss of mobility** Disability Living Allowance Mobility (DLAM)* Mobility Allowance * DLAC and DLAM will soon be reformed by the DWP and will become Personal Independence Payment or PIP. ** e.g. claims for wheelchairs, adapted transport, taxi or bus fares to hospital, increased cost of a car and additional holiday travel costs. Also pay special attention to the claimant s care claim. Does it incorporate elements that reflect the claimant s loss of mobility? If so, it may be possible to argue that damages paid in respect of such elements are mobility damages. TACTICS As a general rule, offset as much of the recoverable benefits as you can against the damages, as this reduces the compensator s overall outlay. Unless you intend to appeal the Benefits Certificate, tactically you may decide to make a more generous allowance for offsettable heads of damage such as loss of earnings or care, where recoverable benefits exceed your valuation of that head of loss. This will not cost the compensator any more money and will increase the gross value of your offer, affording greater costs protection. For example: Care claimed: 6,000 DLAC recoverable: 5,000 Care valuation: 4,500 Offering 5,000 for care will not cost any more to the compensator, will make the offer more attractive and will provide greater protection on costs. 7

10 However, that approach may not be advisable if you believe you have or will have grounds for reducing the benefits on the Certificate by way of review or appeal. At trial, the court will scrutinise the offset of benefits made and, if benefits have not been offset properly, you may lose the protection afforded by any Part 36 or other offer made (Williams v Devon County Council [2003]). Section 8 of the Social Security (Recovery of Benefits) Act 1997 and Williams suggest this will certainly be the case where you have not offset the correct benefits against the correct heads of claim. It may even be argued in future that an offer which offsets benefits paid outside the period for which compensation is sought is on the same principle invalid. However, the courts have yet to address this question specifically. 8

11 4. Offers and settlement MAKING PART 36 OFFERS When making a Part 36 offer you are required to indicate whether the offer is made without regard to and liability for recoverable amounts (i.e. the figure offered is net of CRU benefits) or that the offer is intended to include any deductible amounts (i.e. that the figure offered is gross of CRU benefits and so, if accepted, the Claimant will receive the sum offered less offsettable benefits). (CPR 36.15(3) If an offset is to be made you must: Apply first for a Benefits Certificate. Specify the gross amount of the offer (before offset of benefits). Specify the amount of offset made, specifically the name and amount of the benefit offset. Specify the net amount left after offset of benefits. Where you are without a valid Certificate, but have applied for one, refer to CPR Part 36.15(7). This enables you to make an offer, but to reserve the right to offset benefits once you receive the Certificate. To preserve the effective start date of your Part 36 offer, you must clarify the amount of offset of benefits within seven days of receiving a new Certificate. If accepted, calculation of the net damages will of course be delayed until the Certificate is available. Where benefits have increased since making a Part 36 offer and the relevant period for accepting the offer has expired, the court s permission will be needed to accept a Part 36 offer, unless the compensator agrees. The court may reduce the net amount due to the claimant, so increasing the amount of the offset to take into account the increased benefits the compensator will have to repay (CPR Part 36.15(9)). Consider whether an appeal against the benefits or NHS charges will be feasible at the start of the case, not as an afterthought or when settlement is made. This enables you to obtain sufficient evidence, e.g. by asking questions of the medical expert in support of the appeal before settling the claim, when it may be too late. 9

12 CONSENT ORDERS/TOMLIN ORDERS IN SETTLEMENT OF A CLAIM When making any offer and drafting a consent or Tomlin order be clear and specific about which benefit is being offset against which head of damage, and the amount being offset, e.g. 1,000 ESA against loss of earnings. Ensure the order makes clear the gross sum offered, the amount of benefits offset and against what element of damages, and the net amount after offset of benefits. In consent or Tomlin orders, avoid ambiguous phrases, which suggest an offset has been made, such as net of benefits and plus benefits. It is always preferable to state the gross settlement figure so that there can be no misunderstanding as to the amount offset from damages, particularly if you are contemplating an Appeal and you are unable to offset all of the repayable benefits from the Claimant s damages. Where no offset is made, don t use net or gross etc, simply use in full and final settlement. The order does not need to specify that the compensator repays the benefits. The obligation to pay is governed by statute. 10

13 5. Reviews and appeals SEEKING A REVIEW OF A BENEFITS CERTIFICATE A review is a request from a compensator or claimant to the CRU to change the period or amount of benefits shown on a certificate. A review can be requested in writing at any time, but only once per Certificate. You should set out succinctly why the Certificate is wrong or the benefits or some of them should not be included. Send the CRU any medical evidence and refer them to the key points. The grounds for review (where a review will succeed) are where: The CRU has made an obvious mistake in the preparation of the Certificate. The amount of benefits on the Certificate is wrong. Whilst the grounds for review are fairly restricted, it is worth requesting a review even in reliance on a ground of appeal as the CRU will sometimes review the benefits position on a broader (appeal) basis. Don t be put off appealing benefits on the same grounds/in reliance on the same evidence where a review fails, as the grounds of appeal are broader. A valid appeal often succeeds where a review has failed. Also, it is always possible that the Appeals Tribunal will reach a different conclusion to that reached by the CRU under the Review process. APPEALING A BENEFITS CERTIFICATE An appeal is heard by the Appeals Tribunal, not the CRU. The appeal papers are initially filed with the CRU however. An appeal is made by a compensator to the CRU to have one or more benefits removed entirely or to have the period or amount of benefits shown on a certificate reduced. An appeal can only be brought after settlement of the claim and repayment of benefits in full. The appeal hearing is chaired by a Tribunal Chairperson who will be a qualified lawyer. The Chairperson will typically be assisted by a medical expert. The Tribunal may reach a decision 11

14 by consideration of the papers only, or following an oral hearing. If the latter, the Tribunal will hear submissions from both the DWP and the Compensator s representative before reaching a decision. You will be asked if you require an oral hearing. Oral hearings are preferable if the sums involved are more than trivial. The time limit for an appeal is one month from payment of benefits. There are only very limited circumstances where an appeal can still be made after this time. This relies upon the goodwill and discretion of the tribunal in permitting the appeal to continue. The grounds for an appeal against the Benefits Certificate are that: The amount, rate or period of benefits shown on the Certificate is wrong. The Certificate shows benefits not paid as a result of the accident, injury or disease. Benefits have been included to which the claimant should not have been entitled at all. The accident or injury need not be the only, but must be a significant cause of the claimant receiving benefits for the benefits to be recoverable from the compensator. If the relevant accident or injury is not an effective or significant cause of the payment of benefits, e.g. it did not change the claimant s pre-existing disability or restrictions, an appeal has a good chance of success. If your evidence is supportive and there is a valid reason to prefer your evidence, an appeal is viable. You do not need overwhelming evidence to succeed with an appeal. It is assessed on the balance of probabilities. You are obliged to submit all medical evidence exchanged in the case with your appeal (not just favourable evidence), together with Statements of Case, Schedule of Loss/Counter- Schedule, witness evidence and any other relevant evidence. The most common ground of appeal is that the period of accident-related symptoms ended prior to the relevant period, for example an acceleration case where the period of acceleration terminated prior to the end of the relevant period. 12

15 The CRU Review Section will consider an appeal and may make a partial refund or change the Benefits Certificate. If you are not satisfied with their response, you must notify them within one month. The CRU will then prepare their submission and send appeal papers to the Tribunals Service to arrange the oral hearing. SEEKING A REVIEW OF AN NHS CHARGES CERTIFICATE An NHS Charges review is a request from a compensator to the CRU to change the period or amount of NHS charges shown on a Certificate. A review is requested in writing. The time limit for a review of the NHS Charges Certificate is at any time before settlement or within three months of payment of damages to the claimant or later receipt of an NHS Charges Certificate. You should set out succinctly why the Certificate is wrong or the NHS charges or some of them should not be included. Send the CRU any medical evidence and refer them to the key points. A review will succeed where: There is an obvious mistake in the preparation of the Certificate. The amounts of charges on the Certificate are too high. A ground of appeal is satisfied. Don t be put off appealing NHS charges where a review fails on the same grounds/on the same evidence, as the grounds of appeal are broader. A valid appeal often succeeds, where a valid review has failed. Remember that an appeal is heard by an independent Appeals Tribunal. 13

16 NHS CHARGES AND CONTRIBUTORY NEGLIGENCE: WHAT CAN YOU DO? Unlike with recoverable benefits, a finding of contributory negligence will reduce the NHS charges payable, e.g. a finding of 25% contributory negligence will reduce the NHS charges by 25%. This may make securing a finding of contributory negligence very beneficial. Even where a global settlement can be achieved, if the NHS charges are significant, it is worth pushing your opponent for a finding of contributory negligence. A reduction in the NHS charges due to a finding of contributory negligence is achieved by seeking a review on grounds of contributory negligence of the NHS Charges Certificate after settlement of the case but before payment of NHS charges. You must send to the CRU evidence of the liability split. The CRU will only consider a review on grounds of contributory negligence after settlement of the whole case (liability and damages). You do not need to pay the NHS charges before seeking a review on grounds of contributory negligence. A review request on grounds of contributory negligence must be made within three months of payment of damages. If accepted, the CRU will send a revised Certificate, showing the reduced amount of NHS charges payable. It is acceptable to calculate the revised amount of NHS charges and send a cheque for that sum, together with and in anticipation of a successful review request. NHS CHARGES AND MULTIPLE DEFEFNDANTS Unlike benefits, but in a similar way to contributory negligence, NHS charges can be apportioned between compensators (co-defendants) provided that the CRU is provided with evidence to reflect the liability agreement reached between the defendants. 14

17 APPEAL OF AN NHS CHARGES CERTIFICATE: An appeal of NHS charges can be made by a compensator to the CRU to have one or more elements of the NHS charges removed entirely or to have the period or amount of charges shown on a Certificate reduced. This can only be made after settlement and payment of NHS charges. The time limit for an appeal of NHS charges is three months from payment of damages or later receipt of an NHS Charges Certificate. There are very limited or special circumstances where an appeal can still be made after this time and this relies upon the goodwill and discretion of the tribunal in permitting the appeal to continue. This is subject to a one year long-stop after which an appeal will be refused outright. The main grounds for an appeal against the NHS Charges Certificate are that: The amount of the NHS charges is incorrect. It includes non-nhs hospital treatment charges or charges not as a result of an accident or injury, e.g. treatment received for other reasons. It would be a valid ground of appeal to demonstrate that the claimant would have received the treatment and therefore incurred the NHS charges irrespective of the accident. 15

18 Notes 16

19 Key contacts Greg Woods Partner Sheffield Telephone: Paul Morris Solicitor Birmingham Telephone:

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