First ever in-year increase in recoverable NHS charges

The very latest example of claims inflation comes, perhaps, from the unlikeliest of sources. For the first time since the introduction of the NHS Injury Costs Recovery Scheme(s) in 2007, the Department of Health has introduced a mid-year increase in the amount(s) recoverable from compensators. This is in addition to the increase introduced on 1 April this year.

The amounts set out in the second increase this year will be recoverable from compensators where a claimant sustains personal injury on or after 2 October 2023 and receives hospital treatment and/or ambulance services. Accordingly, current case reserves will not be affected by this imminent change in the law.

Since its inception, the charges recoverable under the scheme have been uprated every April. However, on 2 October 2023, the Personal Injuries (NHS Charges) (Amounts) (Amendment) (No. 2) Regulations 2023 enter force in England & Wales and the Personal Injuries (NHS Charges) (Amounts) (Scotland) Amendment (No.2) Regulations 2023 enter force in Scotland.

The apparent justification for the first mid-term adjustment on record can be found within the (English) Explanatory Memorandum and (Scottish) Policy Note, which each confirm, respectively (emphasis added):

[7.4]       … following the unusually high rate of inflation this year and specifically the higher agreed NHS pay settlement for wages for Hospital and Community Health Service staff, we are introducing a mid-year tariff uplift to address the significant gap between forecast and actual pay inflation.

3. The NHS charges are revised annually from 1 April to take account of Hospital and Community Health Services (HCHS) pay and price inflation. The last revision took effect from 1 April 2023, applying the estimate for HCHS inflation at that time of 2.8%. As a result of subsequent NHS pay deals the latest estimate for HCHS inflation is 5.3%.

4. This instrument increases the charges, with effect from 2 October 2023. This midyear tariff uplift addresses the significant gap between forecast and actual pay inflation.

In England & Wales, the new Schedule 1 to the Personal Injuries (NHS Charges) (Amounts) Regulations 2015 shall provide for recovery of the following sums:

In Scotland, the new regulation 2Q to the Personal Injuries (NHS Charges) (Amounts) (Scotland) Regulations 2006 shall provide for recovery of the same charges:

(1)  Subject to the following paragraphs and regulations 3 and 3A, a certificate relating to an injury which occurs on or after 2 October 2023 must, for the purposes of section 153(2), specify—

(a)  the sum of £243 for each occasion on which, as a result of such an injury, the injured person was provided with NHS ambulance services for the purpose of taking the injured person to a hospital for NHS treatment, and

(b)  where the injured person received NHS treatment at a hospital in respect of the injury, if the injured person was—

(i)  not admitted to hospital, the sum of £806, or

(ii)  admitted to hospital, the sum of £991 for each day or part day of the admission.

(2)  For the purposes of paragraph (1)(a), the reference to taking an injured person to a hospital includes taking that person from one hospital to another.

(3)  Where the injured person was admitted to hospital on one day and discharged on another day, the day of the discharge is to be disregarded for the purpose of paragraph (1)(b)(ii).

(4)  The amount which a certificate may specify under paragraph (1)(a) or (1)(b), or both, must not exceed £59,248 ("the maximum").

…

Note that the increased sums recoverable across Great Britain are identical for the English, Welsh and Scottish jurisdictions. The ostensible justification for this midyear uplift does not suggest that a bi-annual uplift is likely to become the norm; however, we will continue to closely monitor future developments across the domestic jurisdictions.