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Compensation recovery

The recovery of social security or NHS injury benefits from a compensation award following legal action can seem very unfair, especially if your case took a long time to reach a conclusion. However, you cannot be compensated for the same loss twice. It is necessary that benefits received due to the ill health caused by the accident or incident you are claiming compensation for, are taken off the award you receive. This advice guide gives you further information in the hope of softening this perceived blow to your finances.

Recovery of social security benefits

Not all social security benefits are recoverable (see table below). Those that are, are only recoverable from the day following the accident/incident for a period of 5 years or up to the date your claim is settled, whichever is earlier. If you are claiming compensation for a prescribed disease, the 5 year recovery period starts on the date on which benefit for the disease is first claimed.

It is important to be aware that benefits are not recoverable from any part of a compensation award made for pain, injury, suffering or personal inconvenience.  

Before a compensation award is made the “Compensator” (the person held responsible for your injury, or their insurer) must request a “Certificate of recoverable benefits” (CRB) from the Department of Work and Pensions’ Compensation Recovery Unit (CRU). This certificate will be sent to the Compensator and also to you or your solicitor. CRBs are only valid for a limited time, usually quite a short period. You can request a review of your CRB if you believe the value of the certificate is incorrect or that benefits not connected to your accident/injury have been included.

The Compensator may wish to negotiate to offset some of the damages awarded to you against this recoverable amount. Take advice from your solicitor about this as these negotiations can be complicated. Only once the CRU is satisfied that recovery has taken place can you receive your award.

Head of compensation

Benefit

1.      Compensation for earnings lost during the relevant period.

Disability working allowance (before 5.10.99)

Employment and Support Allowance

Incapacity Benefit

Income support

Industrial Injuries Disablement Benefit

Invalidity benefit

Jobseeker’s allowance

Reduced earnings allowance

Sever disablement allowance

Sickness benefit

Statutory sick pay (paid before 6.4.94)

University Credit

Unemployability supplement

Unemployment benefit

2.      Compensation for cost of care incurred during the relevant period.

Attendance allowance

Constant attendance allowance

DLA Care Component

PIP Daily Living Component

Exceptionally sever disablement allowance

3.      Compensation for loss of mobility during the relevant period.

DLA Mobility Component

PIP Mobility Component

Mobility allowance

4.      Exempt payments

Vaccine damage payments

Criminal Injuries Compensation Scheme payments

Payments from Macfarlane or Eileen Trusts and the Skipton Fund

Government payments for those with CJD

Payments from the UK Asbestos and EL Scheme Trusts

Payments from the London Bombing Relief Charitable Fund

Payments under Fatal Accidents Act 1976

Contractual sick pay from an employer

Certain trust or contractual insurance payments

NHS Injury payments – but see below

NCB Pneumoconiosis Compensation payments

Payments in respect of sensorineural hearing loss of less than 50dB in one or both ears.





It is possible to appeal if you believe your CRB is wrong but your appeal must be on one of the following four grounds:

  1. any amount, rate or period specified in the CRB is incorrect  
  2. CRU has specified benefits that were not paid as a result of the accident / injury / disease for which compensation was paid
  3. benefits listed on the CRB have not been paid  
  4. the compensation payment made was not as a consequence of the accident, injury or disease.

Appeals must be made within one month from when the Compensator pays the CRU.

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Impact on NHS Injury benefit payments

The following section is written about the procedure for people in England and Wales. Similar processes operate in Scotland and Northern Ireland, but are operated by Scottish Public Pensions Agency (SPPA) and HPSS respectively.

NHS Pensions Agency guidance is very clear that claims and payment for NHS Injury Benefits (Injury Allowance – IA or Permanent Injury Benefit – PIB) should not be delayed by any legal action for compensation. However, it is important to note that compensation for loss of earnings can affect the IA or PIB payments you receive and may also lead to you having to repay some of the monies you have received to the date of settlement.  

Regulation 17 of NHS Injury Benefit regulations states that NHS Pensions Agency (NHSPA) has to take account of any monies paid as a result of the injury or disease NHS Injury Benefits are being paid for. In practice, however, they will only look at compensation paid for loss of earnings so long as sufficient information is provided by solicitors on both sides to allow them to calculate the amount to be repaid. (If information is not forthcoming from either side it is possible they will seek to recover the whole amount of compensation paid.)  

Once NHSPA are informed that a settlement has been made they will write to both sides’ solicitors and ask for a breakdown of the compensation paid. If both sides reply and agree the constitution of the award, they will base compensation recovery on the figure given.  If both sides reply but disagree they will take a figure in the middle of the two figures given and work from that.  If only one side replies they will prompt the other side to reply but will eventually go from the figure originally given.

Once this figure for loss of earnings has been agreed, NHSPA will calculate how much has been paid in Injury benefits (including a lump sum if there has been one). If monies paid out by them up to the date of settlement exceed the loss of earnings figure, they will simply seek to recover the whole amount. E.g. if loss of earnings is £20,000 but Injury Benefits (plus Lump sum if applicable) paid is £25,000, they will recover the full £20,000.    

If, on the other hand, Injury Benefits paid to the date of settlement (including lump sum if applicable) are less than the amount of loss of earnings compensation received, NHSPA must account for the remaining money from future payments. They do this by notionally converting the remaining amount into a “damages annuity” and then, using figures received from the Government’s Actuarial Department calculate the income to be received from this notional annuity and deduct that income figure from future payments.  

This can seem complicated but it is very important to communicate with the Injury Benefits officers. If NHSP only find out about a settlement months or years after it has been paid, Injury Benefits are still repayable even if you have spent the compensation money. It is however, possible to negotiate repayment by instalments. It is also possible for your solicitor to contact NHSP before a settlement is agreed to ask for an estimate of the impact the award would have on Injury Benefits paid or in payment.

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