Following legislative changes in recent years, defendants and their insurers will know that NHS charges are now recoverable in all personal injury cases, where the accident occurred on or after 29 January 2007. However, contributory negligence can be taken into account to reduce the level of NHS charges to be repaid to the DWP. The level of NHS charges payable can be substantial - in some cases in excess of £40,000. Significant savings can be made in appropriate cases, providing the case has been finally settled, a formal agreement is reached in relation to contributory negligence and that this is sufficiently clear and documented.

New guidance (via a circular) has been issued by the DWP. This implies that extensive documents (statements are mentioned) are needed to support a request for a reduction on account of contributory negligence.

However, in practice a sufficiently clear consent order or clear correspondence from both parties on headed notepaper is sufficient to achieve this. Typically, this may take the form of letter from one party to another offering to accept say 25% contributory negligence and a letter from them accepting that offer.

In essence, the DWP need to be satisfied of:

  • The identity of the parties and their representatives.
  • That a clear offer of contributory negligence has been made and accepted.
  • The amount of that reduction.

Finally, a request and supporting evidence must be sent to the Compensation Recovery Unit no later than 3 months after the settlement of the claim.

For details of the current levels of NHS charges and more information about recoverable benefits, including details of our specialist Benefits Recovery Unit, see our Benefits Briefing.