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Lord Skelmersdale: As my noble friend Lady Blatch said, this is not a useful way of progressing a debate on a very technical subject, although I understand readily that that was the Minister's intention. For my part, I hope that he will not produce that procedure again.

Amendment No. 419 is rather odd. Instead of our usual "may/shall" discussions, which arise in virtually every Bill that we consider, this is a "may/must" amendment. This is a Government that love dicta. I do not particularly approve, but this is a case where what ought to have happened is vague in the extreme. Lines 16 and 17 of the clause state:


The repayment scheme simply will not work unless the Secretary of State in either jurisdiction is informed. If he is not, how will he know whether a personal injury claim is successful and compensation will be paid out? It therefore follows that the insurance company must apply for the certificate from the Secretary of State—substitute compensation recovery unit for Secretary of State. Incidentally, the Minister need not be too shy about this because the word "must" is already used in this clause in subsection (7) line 42. It states that,


    "a person who has made a compensation payment in consequence of an injury suffered by an injured person must apply for a certificate to the Secretary of State",

if the original one is lost or is no longer in force or for various other reasons. Under those circumstances, a replacement certificate must be applied for but originally it was not. I simply do not understand why. I beg to move.

Lord Warner: Referring to our earlier discussion, I wish to put on the record that I am reliably informed that at 11.30 this morning we placed in the pigeon-holes of all the Front Bench spokesmen a copy of the letter that was discussed. Clearly, something went wrong.

Amendment No. 419 would place a legal requirement on potential compensators to apply for a certificate of NHS charges before any compensation payment has actually been made. Although it may seem logical to encourage compensators to apply for certificates as early as possible in the claim process, it is important to remember that the recovery of NHS charges is secondary to, and dependent on, a

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successful claim being made. In other words, it is only once a compensation payment has been made that NHS charges can be recovered. It is by no means the case that every personal injury claim made is successful. Some are so manifestly unfounded that it is clear from the outset that they will fail. It seems inappropriately bureaucratic—indeed, a little draconian—to require the person against whom the claim is made to apply for a certificate of NHS charges before it is clear that they will be liable to pay such charges.

That is why subsection (1) of Clause 147 is worded as it is. It allows for compensators to apply for a certificate before the claim is settled if they choose to do so, but does not require them to do so. Of course, it is quite a different matter once a compensation payment has been made. Then the recovery scheme definitely comes into play, and compensators have an obligation to pay any NHS charges identified. It is for that reason that subsections (7) and (8) of Clause 147 place a legal obligation on compensators to apply for a certificate if they have not already done so at the time the claim is settled, or if a previously issued certificate has expired. It places the onus on the compensator to apply for a certificate to the Compensation Recovery Unit (CRU), the body that administers the existing road traffic scheme and that we expect to do the same for the extended scheme.

To remove that obligation, as Amendment No. 420 would do, would create a loophole that would undermine the entire costs recovery scheme. Compensators would quickly realise that it would be impossible for CRU to find out about many claims if they are not told about them—the applications for a certificate are often the first indication that the CRU has that a claim attracting NHS charges has been made. Given that one of the key principles of the scheme is to make the compensator pay the full costs of their negligence, I cannot see how it is unreasonable to require the compensator to inform CRU of the claim. It is common practice in relation to a huge variety of public and indeed private responsibilities. For example, car owners are required to inform the DVLA when they buy or sell their vehicle; it is not for the DVLA to find out about it. The principle is no different for the NHS costs recovery scheme.

Taken together these amendments would move the element of coercion for compensators from the point at which their liability to pay NHS charges is definite to a point at which it may still come to nothing. That does not seem a fair or equitable way to proceed.

1.45 a.m.

Lord Skelmersdale: The noble Lord seems to have made my case for me when he talks about the onus on the compensator. The compensator therefore must apply for a certificate. It seems that the case is totally proven.

Over and above that, the "must" in subsection (8) appears to be an almost straight copy of Section 2(8) of the Road Traffic (NHS Charges) Act. This

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procedure has been used in respect of that Act. I make the point again that that covered compulsory insurance; this Bill extends to non-compulsory insurance. What happens in cases of uninsured compensation which could be very much greater under this Bill than under anything we have seen heretofore, certainly than under the RTA procedures where insurance is compulsory by law? That provokes me to ask a question that I should have asked perhaps right at the beginning—whether the new scheme will apply to uninsured individuals or not?

Lord Warner: The scheme makes clear that there has to be a compensation payment by a compensator before there can be any recovery of NHS charges. If a person has no capacity to seek an insurance payment then it would be jolly difficult for the compensator to be made responsible for those NHS charges.

Lord Skelmersdale: One could argue that the individual in question is a self-compensator, for want of a better expression. However, I do not think that I want to pursue that any more. The noble Lord has given me a comprehensive but not totally readily explicable explanation. I shall have to read very carefully what he said before deciding how to proceed. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 420 not moved.]

Clause 147 agreed to.

Clause 148 [Section 147: supplementary]:

Lord Skelmersdale moved Amendment No. 421:


    Page 67, line 26, leave out subsection (2).

The noble Lord said: I tabled this amendment again rather than have a clause stand part debate. I would assume that subsection (2) covers cases where a certificate is applied for in England when it should have been applied for in Scotland and vice versa. It seems to me that that is bureaucracy gone mad, resulting in a totally unnecessary paper chase. Who issues the certificate is neither here nor there; what matters is where the money goes. What about a case where an English or Welsh visitor goes to a Scottish National Trust property in the Borders and has an accident, claims against the insurance policy, is accepted and is treated in, say, a Durham hospital? The insurance company applies to the Scottish Minister for a certificate. The money goes to the Scottish Ministers. They will have to establish from the Durham hospital and perhaps the Scottish ambulance how much the cost was, particularly whether it was below the ceiling, and then remit it to the hospital and ambulance authority concerned. What a paper chase.

Why cannot a certificate be issued by either the Secretary of State—that is, the Compensation Recovery Unit in England—or the Scottish authorities? Those would receive the money and dole

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it out to the appropriate health function in either jurisdiction as is specified in Clause 158. An awful fuss seems to be made in the Bill as to who issues the certificate rather than what really matters, which is who gets the money and where does it end up. I beg to move.

Lord Warner: Subsections (1) and (2) of Clause 147 work in tandem to deal with a very specific situation; that is, where an application for a certificate has been made under one of the recovery schemes, but it appears that any payment may be due under another scheme. For example, where an application is made to the England and Wales scheme, but treatment was received in a Scottish hospital or vice versa. Subsection (2) allows, indeed requires, the application to be referred to the appropriate scheme and to be treated as though it had been made originally to that scheme. This reflects the arrangements in the current road traffic scheme, which operate without any difficulty.

Although the provisions in the Bill set up two separate schemes—one for England and Wales and another for Scotland—in order to meet the requirements of devolution, in practice, the Government intend that the two schemes be administered by the Compensation Recovery Unit (CRU), which currently operates the road traffic schemes on behalf of the Secretary of State and the Scottish Ministers.

Omitting subsection (2) would create a bureaucratic stupidity that would cause unnecessary inconvenience for compensators and administrative difficulties for the Compensation Recovery Unit. Instead of, as now, officers working on Scottish cases being able to transfer information about an application to colleagues dealing with English and Welsh cases as considered appropriate, they will have to inform the compensator that they appear to have applied to the wrong scheme and to ask them to apply directly to the right one.

Not only will there be a delay in issuing the certificate, but both the compensator and the CRU will be involved in unnecessary paperwork, all because the staff at the CRU are unable to talk to each other about claims under the different schemes. It is to avoid that kind of bureaucratic nonsense that subsection (2) does not allow information to be passed from one scheme to the other, but actually makes it a requirement to do so.


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