The DWP has issued guidance clarifying the provisions of the Health and Social Care (Community Health Standards) Act 2003 in so far as those provisions enable compensators to have contributory negligence taken into account for injury cost recovery scheme purposes where it is a factor in the primary compensation claim. The guidance includes the following provisions:

  • Contributory negligence agreements between parties don’t automatically qualify for a reduction in NHS charges liability.
  • Typically the time limit to send the DWP evidence to support a request for a reduced NHS certificate is three months from final settlement of the action.
  • A qualifying claim will be reduced where it appears to the Secretary of State that the agreement was reached in a fair manner, the applicant submits a report which is signed by both parties and contains the following information:
    • a statement that it was agreed between the parties that the agreed damages would be reduced to reflect contributory negligence;
    • a statement of how the agreement was reached;
    • the amount of damages that would have been payable but for the agreement;
    • the amount or proportion by which it was agreed the damages were to be reduced; and
    • the names of those involved in the settlement.
  • The time limit for requesting a review of the decision is three months after the date of the certificate or the date the compensation payment was made, if at all.
  • After repayment of NHS charges has been made, there is the right of appeal to an independent tribunal against the information contained in the certificate.