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Lord Hunt of Wirral moved Amendment No. 423B:

"( ) Regulations may provide that where—
(a) a person has made one or more payments to the Secretary of State under section 146, and
(b) in consequence of a review or appeal, it appears that the amount paid is more than the amount that ought to have been paid,
the difference must be repaid by such person or persons as may be described."

The noble Lord said: This amendment seeks to insert a provision that appeared in the 1999 Act but is less clear in this Bill. Where a certificate is reviewed

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or appealed, it is entirely possible that the amount shown on the certificate as due will be reduced. An appeal is almost certain to take place after a compensator has paid the treatment charges owing, and it is possible that a review may also take place after payment. The 1999 Act contained power to make regulations requiring the refund of any overpayment. That provision is absent from the Bill.

The Minister has kindly written to me saying that he recognises that Amendment No. 423B would make explicit on the face of the Bill that if it is established that a compensator has paid more than they were liable for, there is an obligation on whoever has received that payment to refund the excess. He concedes that that is only right and proper. Clause 149(5)(f) ensures that processes can be set up to protect compensators in this respect.

As with the existing road traffic scheme, it is intended that arrangements for dealing with overpayments by compensators will be set out in regulations.

The Minister pointed out that Clause 158(2) prohibits both the Secretary of State and the Scottish Ministers from issuing to NHS bodies any moneys which have been identified as being repayable to the compensator. The regulations, he assures me, will deal with both those cases and cases in which the money has already been forwarded to the relevant NHS trust before the overpayment is identified. That is why the Minister sees no need to make the obligation any more explicit on the face of the Bill.

That is very helpful and I am grateful to the Minister for confirming that the regulations will deal with this point. When does he intend that the draft regulations will be available so that we can scrutinise them? In particular, as they will deal with a requirement—the non-appearance of which has troubled me—it would be helpful if I could see at least the draft of how it is proposed to deal with that in the regulations. But I am very grateful to the Minister for having given me the response he has already given. In that context, I beg to move.

Lord Warner: The noble Lord has done a good job at accurately setting out my case for why we do not believe it necessary to add Amendment No. 423B to the Bill. I shall not go over the ground again, other than to accept that he has put our position accurately and assure him that we will produce the draft regulations as soon as we can after Royal Assent. We shall not be introducing the scheme until after the outcome of the review has been made known.

The noble Lord did not speak to Amendment No. 430A, which allows NHS costs to be recovered only on final payment of compensation. That would prevent any interim payments of compensation, triggering the payment of NHS costs. The existing road traffic recovery scheme allows recovery of NHS costs

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following interim payments. The arrangement works well. We propose to make the same arrangements in relation to the extended scheme.

Lord Hunt of Wirral: I am very grateful to the Minister. I did not deal with Amendment No. 430A because he has already indicated that overpayments will be repaid in individual cases. I am happy with that, but it would be of great assistance if those parts of the regulations that are in draft at present could be shared with those of us who are concerned about the matter so that we can check that the point is properly covered. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Hunt of Wirral moved Amendment No. 423C:

    Page 70, line 16, at end insert—

"( ) Before making any regulations under subsection (2), the Secretary of State shall consult with such persons as he thinks appropriate."

The noble Lord said: The amendment would insert a duty for the Secretary of State to consult before making regulations. Regulations under subsection (2) cover a number of different aspects. By virtue of subsection (5), the regulations may, in particular, provide for a cap on the amount or aggregate amount to be repaid for set amounts for different circumstances. The regulations under the 1999 Act provided for both a cap and a daily rate for out-patient and in-patient treatment. Those provisions worked well, and I would welcome an assurance that such provision is likely to continue.

The then Secretary of State gave a commitment to Parliament that, before the overall cap was raised, he would consult with such persons as he thought appropriate, including in particular the insurance industry, which has to meet the bulk of the claims.

The Minister wrote to me about the amendment, using a wonderful phrase. He said:

    "It goes without saying that the regulations setting out the operational framework for the extended scheme will not, indeed could not, be developed without proper consultation".

I am afraid that "without saying" is an inappropriate phrase. I refer the Government to the very fast action of the Minister's predecessor, the noble Lord, Lord Hunt of Kings Heath. It is good to see him in his place, where he has been sitting virtually throughout the proceedings of the Bill.

When the Government introduced the Road Traffic (NHS Charges) (Amendment) Regulations, I pointed out to the noble Lord, Lord Hunt of Kings Heath, that there had been no consultation at all. As soon as the noble Lord heard that, he immediately revoked the regulations. I warmly applauded the way in which he did that. As soon as he became aware that there had been a commitment to consult, and, indeed, that the consultation had through some oversight not occurred—which I do not think was anything to do with the then Minister—he revoked the regulations because of the failure to consult. I refer the Minister to parliamentary Answer PQ5042/2001–02 given on 6th February 2002 when those regulations were revoked because of the failure to consult.

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When the Minister now says that it goes without saying that these regulations could never be introduced without consultation, will he forgive me if I have a little doubt that somewhere in the great processes of his department there might be a mistake made and a failure to consult repeated? I hope that in these circumstances he will understand why I am pressing my Amendment No. 423C regarding a duty to consult.

I suppose in a way we are just learning from past experience. I do not ascribe any blame to anyone for what happened. Indeed, I pay tribute to the integrity of the Minister's predecessor in moving so swiftly to put things right. If there is not a duty to consult, consultation is somehow bypassed or omitted. I hope the Minister will recognise that the amendment I put forward could not be worded better from his point of view. It states:

    "Before making any regulations . . . the Secretary of State shall consult with such persons as he thinks appropriate".

What could be nicer than for a person on the Opposition Benches to give the Minister the final choice in the matter? It is probably because I have confidence that he, in the tradition of his department, would consult with the most appropriate people. In order to tempt him to accept the amendment—which I hope that he might do even at 2.17 in the morning—I have worded it so widely that I do not think even a reluctant Minister could fail to appreciate that I am giving him an olive branch which I hope he will now accept. I beg to move.

2.15 a.m.

Lord Skelmersdale: Of all the words I might use to describe the Minister, "erroneous" most certainly is not one of them. My noble friend Lord Hunt of Wirral has my full support on the matter. If the Minister insists on negative regulations—we shall see if he gets away with that—consultation before, for example, resetting the cap or the daily inpatient or outpatient rates, is absolutely essential. As my noble friend pointed out, this is a lacuna in the current legislation that we are considering which did not appear in the 1999 Act.

Lord Warner: Even though our intention is to make the scheme work in the same way as the existing road traffic scheme, we still need to ensure that those who will be affected by the scheme, and those who will operate it, have a proper say in how it is set up. I am grateful for the generous remarks of the noble Lord, Lord Hunt of Wirral, about the Secretary of State and my department. I am not sure that Members of his Front Bench were always quite as trusting of the Secretary of State as he was.

Furthermore, as was already debated in our consideration of Amendment No. 474A, your Lordships' House together with the other place will have an opportunity to discuss the first set of regulations made under Clause 149(2). I am afraid that I am not convinced that that needs to be specified in the Bill. I also point out

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to the noble Lord that, as drafted, the amendment would create an anomaly in that the Secretary of State would be required to consult, but Scottish Ministers would not. For those reasons, the Government are not inclined to support the amendment.

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