Louise Gardner, Senior Associate in our Serious Injury team, considers the recent changes to recoverability of NHS charges payable by compensators under the NHS Injury Costs Recovery (ICR) Scheme.
The NHS is often the first port of call for anyone who has sustained injury, be that an ambulance call out, through to A&E assessment and inpatient treatment.
When someone has sustained injury due to the fault or negligence of a third party, the ICR allows the NHS to recover a sum from that third party to reimburse the cost of providing that treatment from the taxpayer’s purse, following a successful claim.
The NHS cannot seek a reimbursement where no successful claim for personal injury is made.
The Government has set charges, tariffs and caps for the reimbursement that can be sought.
The impact of these charges and cap means that the actual cost to the NHS is far greater than the reimbursement that can be sought.
The Association of Personal Injury Lawyers (APIL) undertook research into the ICR in the summer of 2023.
John McGlade, in the APIL Consultation Document said:
“We have long advocated that the ‘polluter should pay’. When a person is injured or made ill as result of the negligence of someone else, the principle that the responsible party should pay for the injured person’s treatment should be unarguable. It is inequitable that the taxpayer should have to foot the NHS bill for such treatment.”
APIL calculated that had the cap been removed this would have resulted in an additional £52.4 million additional income for the NHS over the last three years.
On 1 April 2024 the Government increased the tariffs and ceiling charges payable by compensators for the recovery of NHS charges.
A cap is still enforced.
This uplift reflects the change in inflation. The rate being utilised for the purpose of the change is 2.3% based on the Hospital and Community Health Services (HCHS) level of inflation for the financial year 2024/2025.
The rates have been uplifted as follows:
- Where the injured person is provided with NHS ambulance services, the charge is increased from £243 to £249 for each occasion
- Where the injured person receives NHS treatment, but is not admitted to hospital, the charge is increased from £806 to £825
- The daily charge for NHS inpatient treatment is increased from £991 to £1,014
- The maximum charge in respect of an injury is increased from £59,248 to £60,610
These increased charges will only come in to force for those injuries sustained on, or after, 1 April 2024.
Whilst these increases are welcome, APIL identify in their August 2023 Consultation Document that that there are, “other problems with the scheme which mean that the at-fault party is only responsible for a fraction of the injured person’s NHS treatment costs. As a result, we strongly recommend … a more fundamental review of the scheme which would address these problems.”
The Government released, on 2 May 2024, the total amount collected per month by the Compensation Recovery Unit and paid to the NHS.
The totals for 2024-25 are as follows:
England: £12,657,393
Scotland: £1,142,792
Wales: £618,592
Ambulance trusts: £458,008
Total: £14,876,786
We understand further reviews are anticipated in the future; we encourage further reflection on the scheme, with hope that the cap can be removed so as to fully reimburse the NHS for the treatment they provide to patients where personal injury claims are successful.
