Miscellaneous and general
Section 163: Regulations governing lump sums, periodical payments etc.
344.As explained above in relation to Section 150, liability for payment of NHS charges is triggered by any payment of compensation, whether it is a single payment, an interim payment or a second or subsequent payment of compensation. Subsection (1) enables regulations to be made as to the application of the scheme to particular types of payments which are made in personal injury cases. These are:
multiple payments (subsection (1)(a)).
structured settlements (subsection (1)(b)). In such cases it is envisaged that regulations might allow for the settlement agreement to count as a single payment of compensation and for no further liability in respect of NHS costs to arise when payments are made in accordance with the agreement;
interim payments of damages which are ordered to be repaid by a court (subsection (1)(c)). In such cases, it is envisaged that regulations might provide for repayment to the compensator of any payment of NHS costs made as a result of the interim payment.
345.Under subsection (2), regulations relating to multiple payments may give credit for amounts already paid or provide for the payment of balances or recovery of excesses. For example, regulations might allow the amount of NHS charges due in respect of a later payment to be reduced to take account of earlier payments; or if, as a result of a finding of contributory negligence, the final sum due was less than an earlier payment, they might provide for refund of the overpayment.
346.Subsection (3) enables regulations to be made to deal with the particular situation of payments into court and the circumstances in which such payments – which are made to the court rather than to the injured person – are to count as compensation payments. It allows regulations to modify the scheme as it applies in such cases – for example by providing that the period within which a compensator must apply for a certificate under section 151 runs from the date on which any payment is accepted rather than the date on which it is made or that the date of acceptance of the payment is to count as the settlement date for the purposes of Section 154. Under section 202(3)(b), section 163(3) does not extend to Scotland.
Section 164: Liability of insurers
347.Section 164 provides that where an insurance policy covers, to any extent, a compensation payment made by an insured person in consequence of an injury, that policy will also cover any NHS costs for which the insured person is liable in respect of that injury and that this cover cannot be restricted or excluded. Subsection (4) enables regulations to be made limiting an insurer’s liability in circumstances set out in the regulations. It is envisaged that this might be appropriate, for example, to enable a reduction in the NHS costs payable in cases where an insurer has only covered a proportion of the total compensation due as a result of a cap on the amount payable under the insurance policy.
Section 165: Power to apply Part 3 to treatment at non-health service hospitals
348.Section 165 enables regulations to be made extending the scheme for recovery of NHS costs to cases in which treatment has been provided at a non-health service hospital under an arrangement with one of the NHS bodies listed in subsection (3)(b). This would cover, for example, treatment at private or voluntary hospitals paid for by the NHS. The regulations could also extend the scheme to cases in which an injured person has been provided with ambulance services to take him to such a hospital for treatment. The regulations could cover such issues as the bodies who would receive any payments recovered under the extended scheme. Subsection (2) excludes from any such extension treatment which, had it taken place at an NHS hospital, would have been private treatment or treatment under arrangements for primary dental services or general or personal medical or dental services. This mirrors the exclusions from the main scheme set out in section 150(7).
Section 166: The Crown
349.This section provides that the scheme for recovery of NHS costs will extend to the Crown (i.e. the Queen and Government Departments) except, as a result of the definition of compensation payment in section 150(3)(a), in circumstances where the person concerned can have no legal liability. This applies, for example, to ex gratia payments made by or on behalf of the Queen in her personal capacity.
