House of Lords - Explanatory Note
Health And Social Care (Community Health And Standards) Bill - continued          House of Lords

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Clause 140: Inquiries: Wales

281.     Clause 140 applies where the Assembly holds an inquiry into any matter connected with its social care functions (which are all its functions under the CSA 2000 which equate to those of the CSCI and the CHAI and all its other functions which equate to those of the CSCI). In the same way as is provided by clauses 132 and 133 for inquiries in relation to the CHAI and the CSCI's functions subsections (2) and (3) of this clause enable the Assembly to direct any inquiry, or part of an inquiry, to be held in private, and where the Assembly does not direct, the person holding the inquiry may decide.

Clause 141: Co-operation between Assembly and CHAI

282.     Clause 141 places a duty of co-operation on both the CHAI and the Assembly in relation to the CHAI's and the Assembly's functions under this Bill relating to reviews and investigations.

General

Clause 142: Offences by bodies corporate

283.     This clause provides that an individual may be held liable where a body corporate is judged to have committed an offence under this part. Subsection (2) makes it clear that an individual may be proceeded against if they are a director, manager or secretary of a body corporate (or acting in such a capacity) found guilty of an offence, where the offence is judged to have occurred with their consent or connivance or be attributable to their neglect.

Clause 143: Minor and consequential amendments

284.     Clause 143 makes provision for Schedule 8, which makes minor and consequential amendments to other legislation. The following amendments are of particular note:

285.     Paragraph 8 of Schedule 8 amends the Children Act 1989 to make the CSCI responsible for notifying the Secretary of State of instances where it believes an individual has not been added to the Protection of Children Act or Protection of Vulnerable Adult lists, when they should have been. That Act is also amended to ensure that the CSCI is notified when a child dies whilst in local authority care.

286.     Paragraph 10 amends the Audit Commission Act 1998 (the 1998 Act). Subparagraphs (2) provides for the Audit Commission to consult the CHAI, the CSCI and the Assembly when drawing up various codes of audit practice prescribing the way in which auditors are to carry out their functions. Subparagraph (3) provides that the Audit Commission must obtain the agreement of the CHAI before preparing or making any changes to provisions of a code applicable to the accounts of health service bodies that concern an auditor's consideration of whether arrangements have been made for securing economy, efficiency and effectiveness in the use of resources. Subparagraph (5) provides for the Audit Commission to consult the CSCI and the Assembly when it is considering undertaking a study for improving economy, efficiency and effectiveness in services connected with English and Welsh local authority social services respectively.

287.     Subparagraph (6) provides that the Audit Commission's functions under section 33(1) of the 1998 Act of undertaking studies for improving economy, efficiency and effectiveness in the provision of services, and for improving the financial or other management of bodies do not (apart from functions of conducting studies on financial management) apply in relation to Primary Care Trusts, Strategic Health Authorities, and NHS trusts all or most of whose establishments are situated in England.

288.     Subparagraph (7) provides for the Audit Commission to consult the CSCI when it is considering undertaking a study on the impact of statutory provisions, or directions or guidance given by a Minister, that are connected with English local authority social services and consult the Assembly where this concerns Welsh local authority social services.

PART 3 - RECOVERY OF NHS CHARGES

NHS Charges

Clause 146: Liability to pay NHS charges

289.     Clause 146 sets out the circumstances in which NHS costs can be recovered. Subsections (1) and (2) provide that any person who makes a compensation payment in consequence of an injury, whether physical or psychological, will also be liable to pay NHS charges for treatment received by the injured person at a health service hospital as a result of the injury and/or for the provision of NHS ambulance services provided to the injured person as a result of the injury. The effect of subsection (2) is that there will be two separate recovery schemes - one for England and Wales under which money will be payable to the Secretary of State and one for Scotland under which money will be payable to the Scottish Ministers. References in this section of the notes to "the authority" are to be taken as referring to both the Secretary of State and the Scottish Ministers.

290.     Subsection (3) defines compensation payment. The definition is a broad one which covers payments made by the person liable, or alleged to be liable, for the injury or by his representative such as an insurance company or the Financial Services Compensation Scheme 12. The definition catches not only a final payment of damages but also an interim payment or a payment of costs only. The subsection also provides that the term "compensation payment" includes not just payments of money but payment in money's worth which might include, for example, provision of free rehabilitation services. It does not, however, capture ex gratia payments where there can be no legal liability to make a payment.

    12 The Financial Services Compensation Scheme is a scheme set up under the Financial Services and Markets Act 2000 to provide compensation when the insurance company can not for example because the business has failed.

291.     Subsections (3)(b) and (11) specifically extend the scheme to payments by the Motor Insurers Bureau which operates schemes to make compensation payments where drivers are uninsured or untraceable.

292.     Subsection (3) also introduces Schedule 10, which lists a number of payments which are not to count as compensation payments. These include compensation orders made by the criminal courts (paragraph 1), payments under the Fatal Accidents Act 1976 or its Scottish or Northern Irish equivalent (paragraphs 6 and 7) and payments made by trusts prescribed in regulations (paragraph 3). The intention is that this power would be used to prescribe trusts such as those that are set up to compensate haemophiliacs infected with HIV from blood products. Paragraph 5 of Schedule 10 provides that the scheme will not apply where the compensator is the same hospital or ambulance service as the one which would receive NHS charges under the scheme. This might arise for example if an employee of an NHS trust was injured at work, received treatment at their employing hospital and later made a successful claim for compensation against their employer. Paragraph 8 provides that additional items can be added to the Schedule by regulations. It is envisaged that this power will be used to prescribe items such as payments under the Criminal Injuries Compensation Scheme or the Vaccine Damage Payments Act 1979. Subsection (12) of this clause enables items already in the Schedule to be omitted or modified by regulations.

293.     Subsection (4) applies the scheme to all types of payment including those made voluntarily.

294.     Subsection (5) clarifies the meaning of the term injury, providing that it does not include disease. However, where the injured person suffers a disease attributable to the original injury for which compensation has been paid, subsection (6) clarifies that treatment received or ambulance services provided as a result of that disease will be received or provided as a result of the injury and would therefore fall within the scheme. Thus, treatment received as a result of a free-standing disease, such as asbestosis would be outside the scheme whereas treatment received as a result of a disease linked specifically to the injury suffered - for example, septicaemia resulting from a broken leg - would be within it.

295.     Subsections (7) to (9) exclude from the definition of NHS treatment, private treatment provided at health service hospitals or treatment provided at such hospitals as part of primary medical or dental services (under Part 4 of this Bill) or personal or general medical or dental services.

296.     Subsection (13) makes clear that the scheme will apply only to injuries which take place after these provisions have been brought into force. Subsection (14) confirms that for the purposes of the scheme it is irrelevant whether an admission of liability is made when making the compensation payment.

Certificates of NHS charges

Clauses 147 to 149: Applications for certificates of NHS charges; and Section 147: supplementary and Information contained in certificates,

297.     Clause 147 deals with applications for certificates. Subsection (1) provides that a person (for example, an insurance company) may apply to the Secretary of State or the Scottish Ministers for a certificate before a compensation payment is made to an injured person. Under subsections (7) and (8), a compensator must apply for a certificate if, at the time of making a compensation payment, he has not already been issued with a certificate or any previously issued certificate has expired. These obligations do not arise if the compensator has applied for a certificate within a period before making payment set out in regulations. It is envisaged that this would be a short period such as 28 days.

298.     When the authority receives an application for a certificate, it must, under subsection (2), issue such a certificate as soon as is "reasonably practicable". A time limit is not prescribed as the authority will have to gather information from one or more NHS trusts which can take some time.

299.     Subsection (3) deals with the length of time for which a certificate is to remain in force. This can be until a specified date which might be appropriate for example where there was ongoing treatment; until the occurrence of a specific event - for example any further admission to hospital; or indefinitely which would be appropriate for example where there was a nil certificate of charges, a certificate where the maximum charge recoverable (i.e. the cap set in regulations under subsection (2) of clause 149) had already been reached, or an out patient charge and/or ambulance charge only was recorded.

300.     Clause 148 makes provision in cross-border cases. Subsections (1) and (2) enable applications wrongly made to the Secretary of State or the Scottish Ministers to be referred to the other authority. Subsections (3) and (4) enable applications sent to one authority which are relevant to both to be referred to the other as well. Subsections (5) and (6) allow for a single certificate to be issued to cover liability under both the English/Welsh and the Scottish schemes.

301.     Clause 149 deals with the information to be included in certificates. Subsections (1) and (2) provide that the certificate must state the amount or amounts, determined in accordance with regulations, that the compensator must pay in NHS charges.

302.     Subsection (3) provides that where the damages awarded to an injured person have been reduced to reflect a finding of contributory negligence either made by a court under the Law Reform (Contributory Negligence) Act 1945 or its equivalent outside Great Britain or set out in an agreed judgement or order entered or sealed by a court in England and Wales or Northern Ireland or in a joint minute executed by the parties in Scotland (or equivalent documents elsewhere), the amount due in NHS charges will also be reduced by the same proportion.

303.     Subsection (4) provides that where it is ascertained that no NHS charges are due because the injured person did not receive NHS treatment at a health service hospital and was not provided with NHS ambulance services as a result of the injury then the authority must issue a nil certificate of charges to show that no payments are due.

304.     Subsection (5) sets out particular matters which may be covered by regulations. These include a cap on the overall amount payable (subsection (5)(a)); different amounts for different circumstances - for example out-patient or in-patient treatment and/or ambulance services, and different amounts for different areas (subsection (5)(b)); provision for cases where a person receives treatment at more than one hospital (subsection (5)(c)); and provision for cases where a fresh certificate is issued or a certificate revoked as a result of a review or appeal (subsection (5)(f)). Under subsection (5)(e), regulations may also provide for apportionment of liability for NHS costs in cases where there is more than one person paying compensation to the same injured person. This may occur for example in a multiple road traffic accident where several compensators are involved. Subsection (5)(g) deals with the situation where a person has received treatment or ambulance services in both England/Wales and in Scotland and the compensator therefore has liability for NHS charges under both the English/Welsh and the Scottish schemes. It enables regulations to be made to allow liability under the English scheme to be reduced in recognition of liability in respect of the same injury arising under the Scottish scheme and vice versa. This is to ensure that a compensator is not penalised just because a person's treatment has taken place in two separate parts of Great Britain.

305.     Subsection (6) makes clear that the amounts which regulations under subsection (5)(a) and (b) prescribe to be specified on certificates will be before any reduction for contributory negligence. This means that any reduction resulting from a finding of contributory negligence will be applied to the amounts set in regulations and not, for example, to the full treatment costs which may have exceeded the prescribed maximum recoverable.

306.     Subsections (7) and (8) provide that regulations relating to apportionment or to fresh certificates issued or certificates revoked after a review or appeal can include provisions giving credit for amounts already paid, for the payment of balances and the recovery of excesses. These situations might arise, for example, where a fresh certificate was issued for a higher amount and the original lower amount had already been paid - in such cases it is envisaged that credit would be given for the amount already paid and only the outstanding balance would be due. Conversely, if a person had already paid more than was due it is envisaged that the excess payment would be recouped from the hospital or ambulance trust to which it had been passed and returned to the compensator.

307.     Subsection (9) provides for regulations to specify the information that a compensator can, on receipt of a certificate of charges, request from the authority as to how it has arrived at the amount specified.

308.     Subsection (10) provides that regulations setting out the amounts due may apply to any certificates issued after the date on which the regulations come into force except where a certificate is issued after settlement of a case and the compensation payment to which it relates was made before the date of coming into force of the regulations. This is to provide for cases where, for example the tariff is revised on say 1st April, a claim has settled on 30th March but the compensator doesn't apply for a certificate until after 1 April when the tariff has changed. This makes it clear that the tariff rate before the revision will apply.

Recovery of NHS charges

Clause 150: Payment of NHS charges

309.     Clause 150 sets out the time limits for payment of NHS charges. Subsection (1) provides that where a certificate is issued before settlement of a claim, payment must be made within 14 days of settlement. Subsection (2) provides that, where a certificate is issued on or after settlement, payment must be made within 14 days of issue of the certificate.

Clause 151: Recovery of NHS charges

310.     Clause 151 makes provision for the recovery of unpaid NHS charges. If the person paying compensation either has not applied for a certificate under clause 147 or has not paid the amount due under a certificate, subsections (1) and (2) provide for the authority to issue a new or duplicate certificate and a demand for immediate payment. Subsections (3) to (5) enable joint certificates and demands to be issued by the Secretary of State and the Scottish Ministers. Subsections (6) to (8) set out the procedures to be used to enforce payment. Subsections (9) and (10) make clear that a document stating the amount due, signed by an authorised person, is the only proof required that an amount is recoverable.

Review and appeal

Clause 152: Review of certificates

311.     Clause 152 provides for internal review of certificates. Subsection (1) requires the authority to review a certificate if, after it has been issued, a finding of contributory negligence is either made by a court under the Law Reform (Contributory Negligence) Act 1945 or its equivalent outside Great Britain or set out in an agreed judgement or order entered or sealed by a court in England and Wales or Northern Ireland or in a joint minute executed by the parties in Scotland (or equivalent documents elsewhere). This reflects the fact that such a finding reduces the liability for NHS charges as provided in clause 149. Subsection (2) provides for cases where a certificate relating to the same injury has been issued in relation to the same injured person by both the Secretary of State and the Scottish Ministers or where a joint certificate has been issued to reflect liability under both schemes. It provides that, where the amounts due under one of these certificates (or parts of a certificate) have been adjusted following review or appeal, then the other authority must review its certificate (or part of a certificate) if it is satisfied that consequential adjustments are necessary or expedient. In addition to these two cases, subsection (3) enables a review of a certificate to be carried out by the authority either on its own initiative or on application by the compensator. Subsection (3)(a) provides for regulations to be made relating to the timing of such reviews and the circumstances or cases in which they may take place. Subsection (4) provides that, following review, the authority may verify that the existing certificate is correct, make appropriate variations and issue a new certificate or revoke the old certificate. Subsection (5) enables a single certificate to be issued following a review to cover liability under both the English/Welsh and Scottish schemes.

Clauses 153 to 155: Appeal against a certificate or a waiver decision; Appeal tribunals; and Appeal to Social Security Commissioner

312.     Clauses 153 to 155 provide for appeals against certificates of charges and waiver decisions to an independent body.

313.     Subsection (1) of clause 153 sets out the circumstances in which an appeal against a certificate may be made and subsection (2) provides that no appeal may be made until the claim to which the compensation payment relates has finally been disposed of and the amounts set out in the certificate of NHS charges have been paid. Subsections (4) and (5) enable compensators to apply for the requirement for prior payment in subsection (2) to be waived, and allow the Secretary of State or the Scottish Ministers to grant such a waiver only where it appears to him or them that requiring payment would cause exceptional financial hardship. Subsection (6) provides compensators with a right of appeal against a waiver decision using the same mechanisms as for an appeal against a certificate. It is envisaged that the waiver would only be granted in truly exceptional cases, such as where the raising of money which might later fall to be refunded might, for example, put an individual's home at risk or bankrupt a single-handed business.

314.     Subsection (7) provides for regulations to be made as to the timing, manner and procedure for appeals and for enabling an appeal against a certificate to be treated as a review. Clause 163(2) provides that regulations made by Scottish Ministers under this subsection may only be made with the consent of the Secretary of State.

315.     Clause 154 provides that appeals against both certificates and waiver decisions will be heard by appeals tribunals set up under social security legislation ('the Appeals Service'). Subsection (3) sets out the powers available to tribunals on an appeal against a certificate and subsection (4) requires the authority to act in accordance with any tribunal decision. Subsection (5) enables a single certificate to be issued following appeal to cover liability under both the English/Welsh and Scottish schemes. Subsection (6) sets out the powers available to tribunals on an appeal against a waiver decision. Subsection (7) enables regulations to be made to set out the circumstances in which medical evidence submitted for an appeal does not have to be disclosed. This might be appropriate for example in cases in which it was thought that disclosure of such evidence to the injured person or their representatives might be harmful to the person's health.

316.     Clause 155 provides for onward appeal, by either the authority or the compensator, on a point of law only, to a Social Security Commissioner. Subsection (3) applies to hearings by the Commissioner under this clause those subsections of section 14 of the Social Security Act 1998 which set out the Commissioner's powers in dealing with cases. The effect is that he may either determine a case himself or refer it back to a tribunal for decision with directions. Subsections (4) and (5) provide that, where the Commissioner refers a case back for decision, the tribunal will have the same powers as on an appeal under clause 154 and that in the case of an appeal against a certificate the authority must, as under that clause, act in accordance with the tribunal's decision. Subsection (6) provides that where a Commissioner determines himself a case relating to an appeal against a certificate, the authority must act in accordance with his decision.

Information

Clause 156: Provision of information

317.     The system for recovery of NHS charges is reliant upon information being exchanged by the various parties involved in the chain of events from accident to payment of compensation. Subsections (1) and (2) of this clause provide that a person against whom a claim for compensation is made and other persons set out in paragraphs (b) to (g) of subsection (1) must provide the authority with such information about the case as is required by regulations and that such information must be provided within the timescales and in the manner required by regulations. Subsection (3) makes clear that the information required may include information about NHS treatment or ambulance services provided to an injured person. It is envisaged that the only information which would be needed about the injured person's NHS treatment would be the category of treatment - treatment without admission, for example in accident and emergency or at an out-patient clinic, or treatment given as an in-patient plus the number of days' admission and in some instances the type of treatment provided.

Clause 157: Use of information held by the Secretary of State or the Scottish Ministers etc.

318.     This clause allows information obtained for the purposes of the benefit recovery scheme, as set out in the Social Security (Recovery of Benefits) Act 1997, to be used for the purposes of the scheme relating to recovery of NHS costs and vice versa. This will mean, for example, that in cases involving both NHS and benefit recovery a single set of information can be used for both purposes. Subsections (1) to (3) enable information held for the purposes of the social security scheme to be supplied to those responsible for the NHS costs recovery scheme. Subsections (4) to (6) enable information held for the purposes of the NHS costs recovery scheme to be supplied to those responsible for the social security scheme.

Payments to hospitals or ambulance trusts

Clause 158: Payment of NHS charges to hospitals or ambulance trusts

319.     Clause 158 requires the authority to pay NHS charges which it has recovered (other than, under subsection (2), overpayments which they are required to repay following a review or appeal) to:

-     the body responsible for the hospital which provided treatment to the injured person; and/or

-     to the NHS trust or NHS foundation trust or, in Scotland Special Health Board, designated by the Secretary of State or Scottish Ministers as the relevant ambulance trust in relation to the hospital to which the injured person was taken for treatment.

320.     Where treatment has been received at more than one health service hospital or both treatment and ambulance services have been provided, subsection (1)(c) and (d) enables the authority to divide the money received between the bodies concerned as it thinks appropriate. Subsection (3) enables regulations to be made as to how and when the authority will make payments of the amounts due (paragraph (a)); and to deal with the situation where the body which provided the treatment or ambulance services no longer exists (paragraph (b)). Regulations could for example enable payments to be passed to the new trust taking over from the former NHS trust or ambulance trust. Subsections (4) and (5) provide that the income received by hospitals should be used to provide goods and services for patients receiving NHS treatment at those hospitals and that received by ambulance trusts to provide NHS ambulance services.

Miscellaneous and general

 
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Prepared: 14 July 2003