The Personal Injuries (NHS Charges) (Reviews and Appeals) and Road Traffic (NHS Charges) (Reviews and Appeals) (Amendment) Regulations 2006

• Citation: S.I. 2006/3398
• Sections: 10

Section 1 Citation, commencement, application and interpretation

(1) These Regulations may be cited as the Personal Injuries (NHS Charges) (Reviews and Appeals) and Road Traffic (NHS Charges) (Reviews and Appeals) (Amendment) Regulations 2006 and shall come into force on 29th January 2007.

(2) These Regulations apply in relation to England and Wales.

(3) In these Regulations—

“appeal” means an appeal against a certificate or an appeal against a waiver decision;

“appeal against a certificate” means an appeal, under section 157(1), against a certificate;

“appeal against a waiver decision” means an appeal, under section 157(6), against a waiver decision;

“appeal tribunal” means an appeal tribunal constituted under Chapter 1 of Part 1 of the Social Security Act 1998 (“ 1998 Act ”);

“certificate” means a certificate issued under section 151;

“clerk to the appeal tribunal” has the meaning it has in the Social Security Regulations ;

“Commissioner” has the same meaning as in Chapter 2 of Part 1 of the 1998 Act;

“Compensation Recovery Unit” means the Compensation Recovery Unit of the Department for Work and Pensions;

“compensator” means a person to whom a certificate has been issued;

“legally qualified panel member” has the meaning it has in the Social Security Regulations;

“medically qualified panel member” has the meaning it has in the Social Security Regulations;

“Social Security Regulations” means the Social Security and Child Support (Decisions and Appeals) Regulations 1999 ;

“waiver application” is to be construed in accordance with regulation 4(1).

(4) A reference in these Regulations to a numbered section is a reference to that section of the Health and Social Care (Community Health and Standards) Act 2003.

Section 2 Review of certificates

(1) For the purposes of section 156(1), notification of an order, judgement, minute or document referred to in that section is to be given to the Secretary of State by the compensator sending to the Compensation Recovery Unit—

(a) a copy of the order, judgement, minute or document concerned; and

(b) particulars of the proportion by which the damages payable in respect of the claim are to be reduced to reflect the injured person’s share in the responsibility for the injury in question.

(2) The Secretary of State must review a certificate relating to a claim which, after the certificate is issued, becomes a qualifying claim (as defined in section 153(9) ) if, not later than 3 months after the claim becomes a qualifying claim, the report containing the information required by regulation 3(1)(a) (production of report) of the Personal Injuries (NHS Charges) (General) and Road Traffic (NHS Charges) (Amendment) Regulations 2006 is sent by the compensator to the Compensation Recovery Unit.

(3) Subject to paragraph (4), the Secretary of State may review a certificate where she is satisfied that—

(a) a mistake (whether in computation of the amount specified or otherwise) may have occurred in the preparation of the certificate;

(b) the amount specified in the certificate may be in excess of the amount due to the Secretary of State;

(c) incorrect or insufficient information may have been supplied to the Secretary of State by the person to whom the certificate was issued and, in consequence, the amount specified in the certificate was less than it would have been had the information supplied been correct or sufficient; or

(d) a ground for an appeal against a certificate may be satisfied.

(4) An application for a review under section 156(4) must be in writing on a form approved by the Secretary of State and sent to the Compensation Recovery Unit not later than 3 months after—

(a) the date on the certificate; or

(b) if later, the date on which the compensation payment was made.

Section 3 Information to be provided on issue of a certificate

(1) Where the Secretary of State issues a certificate to any person, she shall at the same time send the person a notice as to—

(a) the grounds on which the person may appeal against the certificate;

(b) the requirements under section 157(2) that are to be satisfied before an appeal may be made; and

(c) the person’s right under section 157(4) to apply for the requirement in section 157(2)(b) (payment of amounts specified in certificate) to be waived.

Section 4 Waiver applications and appeals

(1) An application under section 157(4) for a waiver of the requirement in section 157(2)(b) that payment of the amount or amounts specified in the certificate be made before making an appeal (“a waiver application”) shall be sent to the Compensation Recovery Unit with particulars of the exceptional financial hardship that would be caused by payment of the amount (or amounts) specified in the certificate.

(2) A waiver application shall be sent to the Compensation Recovery Unit not later than—

(a) 3 months after—

(i) the date on the certificate, or

(ii) if later, the date on which the compensation payment was made; or

(b) if the compensator has been granted an extension of the time limit for an appeal against a certificate under regulation 7, one month after the date of that decision.

(3) Where the Secretary of State makes a waiver decision , the person who made the waiver application shall be—

(a) given notice of the decision; and

(b) if the waiver application is refused—

(i) given notice of his right of appeal against the decision under section 157(6); and

(ii) informed that, if the notice of the decision does not include a statement of the reasons for the decision, he may, within one month of the date of notification of that decision, request that the Secretary of State provide him with a written statement of the reasons for the decision.

(4) An appeal against a waiver decision shall be in writing on a form approved by the Secretary of State and unless an application has been granted to extend the time for an appeal against a waiver decision under regulation 7, shall be sent to the Compensation Recovery Unit not later than one month after the date of the waiver decision.

(5) An appeal against a waiver decision shall contain—

(a) the particulars required under regulation 5(4) in relation to the appeal against the certificate which it is proposed to bring; and

(b) particulars of the exceptional financial hardship that would be caused by payment of the amount (or amounts) specified in the certificate.

Section 5 Appeals against certificates

(1) Any appeal against a certificate shall be in writing on a form approved by the Secretary of State and, unless an application has been granted to extend the time for an appeal against a certificate under regulation 7, shall be sent to the Compensation Recovery Unit—

(a) not later than 3 months after—

(i) the date on the certificate, or

(ii) if later, the date on which the compensation payment is made;

(b) where a certificate is confirmed following a review by the Secretary of State under section 156, not later than 3 months after the date of that confirmation;

(c) where an agreement is made under which an earlier compensation payment is treated as having been made in final discharge of a claim made by or in respect of an injured person and arising out of the injury or death, not later than 3 months after the date of that agreement; or

(d) where the compensator makes a waiver application, not later than one month after—

(i) the date of the waiver decision, or

(ii) if the compensator appeals against that decision, the date on which the appeal is decided or withdrawn.

(2) Where the points raised in an appeal against a certificate have not already been the subject of a review under section 156 the Secretary of State, if she thinks it appropriate to do so, may treat an appeal against a certificate as an application for review under section 156(4).

(3) Where the Secretary of State decides to treat an appeal against a certificate as an application for review under section 156(4) she must advise the applicant that she has done so and—

(a) where the certificate is confirmed, notify the applicant of that decision; or

(b) otherwise issue a fresh certificate.

(4) Any appeal under this regulation shall contain the following particulars—

(a) the date of the certificate in relation to which the appeal is made;

(b) the ground under section 157 to which the appeal relates; and

(c) a summary of the arguments relied on by the person making the appeal to support his contention that the certificate is wrong.

Section 6 Appeals - General

(1) Where an appeal is not made on the form approved for the time being, but is made in writing and contains all the particulars required under regulations 4(5) or 5(4), as the case may be, the appeal tribunal may treat that appeal as duly made.

(2) Where it appears to the appeal tribunal that an appeal does not contain all the particulars required under regulations 4(5) or 5(4), as the case may be, it may require the person making the appeal to provide such particulars as are not included.

(3) Where paragraph (2) applies, the appeal tribunal may extend the time specified by regulations 4(4) or 5(1), as the case may be, for making the appeal by a period of not more than 14 days.

(4) Where further particulars are required under paragraph (2), they shall be sent to the Compensation Recovery Unit within such a period as the appeal tribunal may direct.

(5) Where a person is required under paragraph (2) to provide further particulars and does not do so within the period of time specified under paragraph (4)—

(a) the clerk to the appeal tribunal shall send a copy of the appeal together with any other relevant documents, to a legally qualified panel member; and

(b) that panel member shall determine whether the appeal is to be treated as duly made, and shall inform the appellant, and the Secretary of State of his decision.

(6) The date of an appeal shall be—

(a) the date on which all the particulars required under regulations 4(5) or 5(4), as the case may be, are received by the Compensation Recovery Unit; or

(b) where a legally qualified panel member determines under paragraph (5)(b) that the appeal is to be treated as duly made, the date on which the appeal was received by the Compensation Recovery Unit.

Section 7 Extension of time for appealing

(1) The time prescribed by regulations 4 and 5 for the making of an appeal may be extended, even though the time so prescribed may already have expired, on application by the compensator.

(2) Any application for an extension of time shall be sent to the Compensation Recovery Unit and shall be determined by a legally qualified panel member except that where the Secretary of State is satisfied that the condition in paragraph (3)(b) is satisfied she may also grant the application.

(3) An applicant must satisfy the person determining the application that—

(a) if the application is granted there are reasonable prospects that such an appeal will be successful; or

(b) it is in the interests of justice that the application be granted.

(4) For the purposes of paragraph (3) it shall not be considered to be in the interests of justice to grant an application unless the person determining the application is satisfied that—

(a) special reasons exist which are wholly exceptional and which relate to the history or facts of the case;

(b) such special reasons have existed throughout the period beginning with the day following the expiry of the time prescribed, as the case may be, by regulation 4 or 5 for the making of an appeal and ending with the day on which the application for extension of time is made; and

(c) such special reasons manifestly constitute a reasonable excuse of compelling weight for the applicant’s failure to make an appeal within the prescribed time.

(5) In determining whether there are special reasons for granting an application for an extension of time for making an appeal under paragraph (1) the person determining the application shall have regard to the principle that the greater the amount of time that has elapsed between the expiry of the time specified for the making of the appeal and the making of the application for an extension of time, the more cogent should be the special reasons on which the application is based.

(6) In determining whether facts constitute special reasons for granting an application for an extension of time for making an appeal under paragraph (1), no account shall be taken of the following—

(a) that the applicant or anyone acting for him or advising him was unaware of or misunderstood the law applicable to his case (including ignorance or misunderstanding of any time limits imposed by regulations 4 or 5);

(b) that a Commissioner or a court has taken a different view of the law from that previously understood and applied.

(7) The person who determines an application for an extension of time for making an appeal shall record a summary of his decision in such written form as has been approved by the President of appeal tribunals appointed under section 5 of the Social Security Act 1998 .

(8) Where a decision is made under this regulation by a legally qualified panel member he shall notify the applicant and the Secretary of State.

(9) Where a decision is made under this regulation by the Secretary of State she shall notify the applicant.

(10) Any application under paragraph (1) for an extension of time for making an appeal shall contain the following particulars—

(a) particulars of the special reasons on which the application is based, if applicable; or

(b) the particulars required under regulation 5(4) in relation to the appeal against the certificate which it is proposed to bring; and

(c) in the case of an application for an extension of time for making an appeal against a waiver decision, the particulars required under regulation 4(5).

(11) An application under paragraph (1) which has been refused may not be renewed.

(12) No appeal may be brought later than 1 year after the beginning of the period prescribed in regulations 4(2) or 5(1), as the case may be, or, if more than one such period is relevant, the one beginning later or latest.

Section 8 General provisions relating to the procedure for appeals

(1) Where an appeal is made, the provisions of the Social Security Regulations specified in paragraph (2) shall apply in relation to the appeal as they apply to an appeal to an appeal tribunal under section 12 of the Social Security Act 1998 , subject to the modifications to those regulations set out in paragraphs (3) to (7).

(2) The provisions referred to in paragraph (2) are—

(a) 34 (death of a party to an appeal) ;

(b) 36 (composition of appeal tribunals) ;

(c) 38 (consideration and determination of appeals and referrals);

(d) 39 (choice of hearing) ;

(e) 40 (withdrawal of appeal or referral) ;

(f) 42 (non-disclosure of medical advice or evidence) ;

(g) 43 (summoning of witnesses and administration of oaths);

(h) 46 (appeals which may be struck out) ;

(i) 47 (reinstatement of struck out appeals) ;

(j) 49 (procedure at oral hearings) ;

(k) 51 (postponement and adjournment) ;

(l) 53 (decisions of appeal tribunals) ;

(m) 54 (late application for a statement of reasons of tribunal decision) ;

(n) 55 (record of tribunal proceedings) ;

(o) 56 (correction of accidental errors) ;

(p) 57 (setting aside decisions on certain grounds) ;

(q) 58 (application for leave to appeal to a Commissioner from an appeal tribunal) ; and

(r) Schedule 3 (qualifications of persons appointed to the panel) .

(3) Any reference in the provisions specified in paragraph (2) to a party to the proceedings shall be construed as referring to—

(a) the person to whom the certificate was issued; and

(b) unless otherwise stated, the Secretary of State.

(4) Regulation 38 (consideration and determination of appeals and referrals) of the Social Security Regulations shall apply as if the reference to “any provision of these Regulations” were a reference to any provisions of the Social Security Regulations specified in paragraph (2).

(5) Regulation 46 (appeals which may be struck out) of the Social Security Regulations shall apply as if—

(a) paragraph (1)(a) were omitted; and

(b) in paragraph (1)(b), the reference to “these Regulations” were a reference to regulations 4(5) or 5(4), as the case may be, of these Regulations.

(6) Regulations 56(1) (correction of accidental errors) and 57(1) (setting aside decisions on certain grounds) of the Social Security Regulations shall apply as if the reference to “a relevant enactment” were a reference to section 158.

(7) Regulation 58(1) (application for leave to appeal to a Commissioner from an appeal tribunal) of the Social Security Regulations shall apply as if the reference to “section 13 of the 1997 Act or under section 12 or 13” were a reference to section 159.

Section 9 Consolidation of appeals

Where two or more appeals against certificates (whether issued by the Secretary of State or Scottish Ministers) relate to the same injury, the legally qualified panel member may direct that the appeals be consolidated.

Section 10 Amendment of regulation 11 of the Road Traffic (NHS Charges) (Reviews and Appeals) Regulations 1999

For regulation 11(3) of the Road Traffic (NHS Charges) (Reviews and Appeals) Regulations 1999 (corrections of accidental errors in decisions), substitute—

(3) There shall be no appeal against a correction made under paragraph (1) or a refusal to make such a correction.