The National Health Service (Injury Benefits) Regulations 1995

The NHS is Europe’s largest employer and each year large numbers of NHS staff have to stop work because of injuries sustained at work, typically nursing staff with back injuries. Very substantial sums of money can be gained under this scheme which is modelled on the Industrial Injuries Scheme before it was mutilated. Claims must be made by the employing authority, not by the claimant, and many trusts omit to do so. Backdated claims can still be made.

Laid before Parliament 23rd March 1995

Coming into force 13th April 1995

as amended by:

  • The National Health Service (Injury Benefits) Amendment Regulations 1997
  • The National Health Service (Injury Benefits) Amendment Regulations 1998
  • The National Health Service (Injury Benefits) Amendment (No. 2) Regulations 1998
  • The National Health Service (Injury Benefits) Amendment Regulations 2000

With annotations by Martin Rathfelder

ARRANGEMENT OF REGULATIONS

Preliminary

  • 1. Citation and commencement
  • 2. Interpretation
  • Injury benefits
  • 3. Persons to whom the regulations apply
  • 4. Scale of benefits
  • 5. Meaning of service
  • Benefits on death of injured person
  • 6. Grounds of entitlement
  • 7. Widow’s or widower’s allowance
  • 8. Child’s allowance
  • 9. Dependent relative’s allowance
  • 10. Restriction of allowances
  • 11. Lump sum payment on death
  • 12. Incidental provisions
  • Review of allowance and miscellaneous
  • 13. Review and adjustment of allowance
  • 14. Loss of rights to benefit
  • 15. Offset for crime, negligence or fraud
  • 16. Officers transferred in consequence of reorganisation
  • 17. Damages
  • 18. Avoidance of duplicate benefits
  • 19. Medical examination
  • 20. Benefits not assignable
  • 21. Payment to personal representatives
  • 22. Determination of questions
  • 23. Option to persons detrimentally affected by these Regulations
  • 24. Revocations and savings

The Secretary of State for Health, in exercise of the powers conferred by sections 10(1), (2) and (3) and 12(1) and (2) of, and schedule 3 to, the Superannuation Act 1972 and of all other powers enabling her in that behalf, after consulting such representatives of persons likely to be affected by these Regulations as appear to her to be appropriate , and with the consent of the Treasury, hereby makes the following Regulations:

PART I PRELIMINARY

Citation and commencement

1. These Regulations may be cited as the National Health Service (Injury Benefits) Regulations 1995 and shall come into force on 13th April 1995.

Interpretation

2.-(1) In these Regulations-

“the 1961 regulations ” means the National Health Service (Superannuation) Regulations 1961;

“the 1980 regulations ” means the National Health Service (Superannuation) Regulations 1980;

“the 1997 Act” means the National Health Service (Primary Care) Act 1997

“the pension scheme regulations ” means the National Health Service Pension Scheme Regulations 1995;

“the previous regulations ” means the National Health Service (Injury Benefits) Regulations 1974;

“assistant practitioner” means an employee of a medical practitioner or dental practitioner on the list of a Health Authority being himself a medical practitioner or dental practitioner who, in such employment, is engaged in assisting his employer in the actual discharge of his duties as such practitioner, and for whose employment the consent of the Health Authority is required;

“average remuneration ” means-

(a) in relation to a person other than a practitioner, such amount as would be or would have been his final year’s pensionable pay, within the meaning of regulation C1(6) of the pensions scheme regulations, as an officer to whom those Regulations apply (assuming, in the case of a person to whom regulation 3(1) (c) applies, that he was in receipt of the pensionable pay which would, in the opinion of the Secretary of State, have been payable if he were employed whole-time by an employing authority on similar duties);

or

(b) in relation to a practitioner, the yearly average of such amount as would be or would have been his uprated earnings, within the meaning of paragraph 11(2) of Schedule 2 to the pension scheme regulations, as a practitioner to whom those Regulations apply;

calculated as if he had retired-

(i) in the case of a person eligible for an allowance under regulation 4(3), on the date on which he ceased to be employed as a person to whom regulation 3(1) applies;

(ii) in the case of a person eligible for an allowance under regulation 4(4) or (5), on the date on which his emoluments were reduced;

(iii) in the case of any other person, on the date on which by reason of the injury or disease his employment ceased:

Provided that in respect of a person to whom regulation 3(1)(a) applies who, immediately before he ceased to be employed by reason for the injury or disease or as a person to whom regulation 3(1) applies, or immediately before the date on which his emoluments were reduced, as the case may be, was employed as a senior registrar, registrar, specialist registrar, senior house officer or house officer, average remuneration shall be increased to the amount which in the opinion of the Secretary of State represents the average remuneration of a general medical practitioner, or a general dental practitioner, as the case may be, of comparable age;

“dental hygienist” means a person whose name is included in the roll of dental hygienists referred to in regulation 21 of the Dental Auxiliaries Regulations 1986;

“dental list” means a list prepared in accordance with regulations made under section 36(1)(a) of the National Health Service Act 1977

“dental pilot scheme employee” means an individual who is performing personal dental services in accordance with a pilot scheme, and is employed by a person providing those services;

“Dental Practice Board ” has the same meaning as in section 12 of the Health and Medicines Act 1988

“dental therapist” means a person whose name is included in the roll of dental therapists referred to in regulation 25 of the Dental Auxiliaries Regulations 1986;

“emoluments ” means all salary, wages, fees and other payments paid or made to a person as such for his own use, and also the money value of any accommodation or other allowances in kind appertaining to his employment, but does not include payments for overtime which are not a usual incident of his employment, or any allowances payable to him to cover the cost of providing office accommodation or clerical or other assistance, or any travelling or subsistence allowance or other money to be spent, or to cover expenses incurred, by him for the purposes of his employment; and where fees or other variable payments were made to a person as part of his emoluments during any period immediately preceding a reduction of emoluments, the amount in respect of fees or other variable payments to be included in the emoluments shall be the average of the fees or other payments paid to him during the period of 3 years immediately proceeding the reduction of the emoluments, or such other period as the Secretary of State may think reasonable in the circumstances;

“employing authority ” means-(a) a Health Authority established under section 8 of the National Health Service Act 1977[6];

(aa) a Special Health Authority established under section 11 of that Act[7];

(bb) a Primary Care Trust established under section 16A of that Act[8];

(c) a National Health Service trust established under section 5 of the National Health Service and Community Care Act 1990,

(d) the Dental Practice Board, and

(e) any such other body that is constituted under an Act relating to health services and which the Secretary of State agrees to treat as an employing authority for the purposes of these Regulations;

“the health service” has the meaning given in section 128(1) of the 1977 Act;

“medical list” means a list prepared in accordance with regulations made under section 29(2)(a) of the National Health Service Act 1977;

“medical pilot scheme employee” means an individual who, in connection withthe provision of personal medical services in accordance with a pilot scheme, is employed by a person providing those services; “NHS dental employee” means an individual who, in connection with the provision of services in the health service, is employed by-

(a) a National Health Service trust;

(aa) a Primary Care Trust

(b) a Health Authority;

(bb) a Special Health Authority;

(c) a registered dentist; or

(d) a registered dentist who is providing personal dental services in accordance with a pilot scheme;

“NHS employment” has the same meaning as in the National Health Service Pension Scheme Regulations 1995

“personal dental services” has the meaning given in section 1(8) of the 1997 Act;

“personal medical services” has the meaning given in section 1(8) of the 1997 Act;

“pilot scheme” has the meaning given in section 1(1) of the 1997 Act;

“pilot scheme employee” has the meaning given in section 2(3) of the 1997 Act;

“piloted services” has the meaning given in section 1(4) of the 1997 Act;

“”practitioner” means –

(a) a medical practitioner or a dental practitioner on the medical list or, as the case may be, the dental list of a Health Authority;

(b) an assistant practitioner;

(c) a medical practitioner who is providing piloted services under a pilot scheme; and

(d) a medical practitioner who is a pilot scheme employee, and –

(i) whose name appears on the medical list of a Health Authority; or

(ii) who was an assistant practitioner;

prior to the commencement of the pilot scheme;

“quarter” means a 3 month period ending on the last day of March, June, September or December.

“registered dentist” has the meaning given in section 53(1) of the Dentists Act 1984;

“relevant pension scheme” means any form of arrangement, whether subsisting by virtue of an Act of Parliament, trust, contract or otherwise for the provision of pension benefits in connection with employment mentioned in regulation 3(1), including a personal pension scheme as defined in section 1 of the Pension Schemes Act 1993[7], or an additional pension referred to in section 44(3)(b) of the Social Security Contributions and Benefits Act 1992[8], but excluding –

(a) any arrangements for the provision of benefits under legislation related to social security, other than the said additional pension;

(b) any arrangement for the provision of benefits paid for by additional voluntary contributions under which the rate or amount of benefit payable is calculated by reference to the proceeds of the investment of those contributions;

“service ” has the meaning given in regulation 5.

“the Scheme” means the National Health Service Pension Scheme for England and Wales, the rules of which are set out in the pension scheme regulations

  1. Where any pension or child’s allowance which is or would have been payable under a relevant pension scheme is taken into account for the purpose of any calculation under these Regulations, such pension or allowance shall exclude any amount by which it is or would have been increased under the Pensions (Increase) Act 1974.

This provides for junior medical staff to be treated as if they had completed their training and qualified.

Injury Benefits

Persons to whom the regulations apply

3.-(1) Subject to paragraph (3), these Regulations apply to

any person who, while he-

(a) is in the paid employment of an employing authority;

(b) is a practitioner;

(c) holds an appointment with an employing authority the terms of which declare it to be honorary;

(d) holds an appointment as a member of such body constituted under the National Health Service Act 1977  as the Secretary of State may approve;

(e) is a provider of piloted services other than a person to whom paragraph (1A) applies;

(f) is a registered medical practitioner who is a medical pilot scheme employee and whose employment as such requires the consent of the Health Authority with which the person providing piloted services has agreed to provide piloted services;

(g) is a registered dentist who is a dental pilot scheme employee;

(h) is a registered dentist who is engaged under a contract for services by a person providing piloted services to carry out personal dental services in accordance with a pilot scheme;

(i) is a dental therapist who is a dental pilot scheme employee; or

(j) is a dental hygienist who-

(i) is employed as a dental pilot scheme employee otherwise than by a National Health Service trust or a Primary Care Trust; and

(ii) was, immediately before the commencement of such employment, a member of the Scheme, to whom these Regulations applied.

(k) is a practitioner or is in NHS employment, and is-

(i) a member of a Primary Care Trust by virtue of regulation 2(4)(b) or (c) of the Primary Care Trusts (Membership, Procedure and Administration Arrangements) Regulations 2000[13] (officer members), or

(ii) a member of the Executive Committee of a Primary Care Trust[14] by virtue of article 2(3)(c) of the Primary Care Trust Executive Committee Directions 2000 given by the Secretary of State on 10th February 2000[15];

sustains an injury, or contracts a disease, to which paragraph (2) applies.

(1A) This paragraph applies to a provider of personal dental services under a pilot scheme who is neither a registered dentist nor a dental therapist, and-

(a) who-

(i) immediately prior to the commencement of the pilot scheme, was an NHS dental employee, and

(ii) was not at that time a member of the Scheme; or

(b) to whom these Regulations did not apply immediately prior to the commencement of the pilot scheme.

(2) This paragraph applies to an injury which is sustained and to a disease which is contracted in the course of the person’s employment and which is wholly or mainly attributable to his employment and also to any other injury sustained and, similarly, to any other disease contracted, if-

(a) it is wholly or mainly attributable to the duties of his employment;

(b) it is sustained while, as a volunteer at an accident or emergency, he is providing health services which his professional training and code of conduct would require him to volunteer; or

(c) it is sustained while he is travelling as a passenger in a vehicle to or from his place of employment with the permission of employing authority and if in addition-

(i) he was under no obligation to the employing authority to travel in the vehicle but, if he had been, the injury would have been sustained in the course of, and have been wholly or mainly attributable to, his employment, and

(ii) at the time of the injury the vehicle was being operated, otherwise than in the ordinary course of a public transport service, by or on behalf of the employing authority or by some other person by whom it was provided in pursuance of arrangements made with the authority.

(3) These Regulations shall not apply to any person in relation to any injury or disease wholly or mainly due to, or seriously aggravated by, his own culpable negligence or misconduct.

These provisions are distinctly more generous than those which apply to Industrial injury benefits for the rest of the population.

Scale of benefits

4.-(1)Subject to paragraph (5), Benefits in accordance with this regulation shall be payable by the Secretary of State to any person to whom regulation 3(1) applies whose earning ability is permanently reduced by more than 10 per cent. by reason of the injury or disease.

(2) Where a person to whom regulation 3(1) applies ceases to be employed as such a person by reason of the injury or disease and no allowance or lump sum, other than an allowance under paragraph (5), has been paid under these Regulations in consequence of the injury or disease, there shall be payable, from the date of cessation of employment, an annual allowance of the amount, if any, which when added to the value, expressed as an annual amount, of any of the pensions and benefits specified in paragraph (6) will provide an income of the percentage of his average remuneration shown in whichever column of the table hereunder is appropriate to his service in relation to the degree by which his earning ability is reduced at that date.

Table

Degree of reduction of earning ability

Service Less than 5 years 5 years and over but less than 15 years 15 years and over but less than 25 years 25 years and over
(2) (3) (4)
More than 10% but not more than 25% 15% 30% 45% 60%
More than 25% but not more than 50% 40% 50% 60% 70%
More than 50% but not more than 75% 65% 70% 75% 80%
More than 75% 85% 85% 85% 85%

(3) Where, before attaining age 60, a person to whom regulation 3(1) applies ceases to be employed as such a person other than by reason of the injury or disease and no allowance or lump sum, other than an allowance under paragraph (5), has been paid under these Regulations in consequence of the injury or disease, he may be paid, from the date on which he attains age 60, or such earlier date as the Secretary of State may in any particular case allow, an annual allowance of the amount, if any, which when added to the value, expressed as an annual amount, of any of the pensions and benefits specified in paragraph (6) will provide an income of the percentage of his average remuneration shown in whichever column of the table in paragraph (2) is appropriate to his service in relation to the degree by which his earning ability is reduced by reason of the injury or disease at that date.

(4) Where a person to whom regulation 3(1) applies suffers a reduction in the emoluments of an employment mentioned in that regulation by reason by the injury or disease, there shall be payable, from the date of that reduction, an annual allowance-

(a) of the amount, if any, which when added to the value, expressed as an annual amount, of any of the pensions and benefits specified in paragraph (6), will provide an income of the percentage of his average remuneration shown in whichever column of the table in paragraph (2) is appropriate to his service in relation to the degree by which his earning ability is reduced at the date that his emoluments were reduced; or

(b) of the amount, if any, which, when added to the value, expressed as an annual amount, of any pension specified in paragraph (6)(a), will provide an income at the annual rate at which a pension would have been payable to the person under his relevant pension scheme if, on the day before such reduction, he had ceased to be employed and was incapable of discharging efficiently the duties of his employment by reason of permanent ill-health or infirmity of mind or body;

whichever is the greater:

Provided that regulation 13(4) shall apply to that allowance as if the person had ceased to be employed on the day before his emoluments were reduced and had been re-employed on the following day with the reduced emoluments.

(5) Where, on or after 1st April 1991, a person to whom regulation 3(1) of these Regulations applies or to whom regulation 3(1) of the previous Regulations applied is or was on leave of absence from an employment mentioned in those regulations with reduced emoluments by reason of the injury or disease, there shall be payable by that person’s employing authority on behalf of the Secretary of State, during or in respect of the period of such leave and without regard to any reduction in the person’s earning ability, an annual allowance of the amount, if any, which when added to the aggregate of –

(a) the emoluments payable to the person during his leave of absence, and

(b) the value, expressed as an annual amount, of any of the pensions and benefits specified in paragraph (6) (including the value of any equivalent benefits payable under the enactments consolidated by the Social Security Contributions and Benefits Act 1992), will provide an income of 85 per cent. of his average remuneration.

(5A) Where, in the case of a person referred to in paragraph (1)(k) of regulation 3, paragraph (2) of that regulation applies with respect to any employment of his (within the meaning of that regulation) as a member of a Primary Care Trust or of its Executive Committee, paragraph (5) of this regulation shall apply to that person as if he were an officer employed by that Primary Care Trust.

(6) The pensions and benefits specified in this paragraph are-

(a) any pension payable to the person under a relevant pension scheme, disregarding any reduction in the amount of that pension under regulation T5 (offset for crime, negligence or fraud) or T6 (loss of rights to benefits) of the pension scheme regulations and disregarding any increase in the amount of that pension, under the Pensions (Increase) Act 1971, after the date at which the average remuneration used in the calculation of the allowance was calculated;

(b) any of the following benefits, at the rates in operation at the date on which the employment ceased or the emoluments were reduced, as the case may be, which are payable to the person-

(i) disablement pension or gratuity payable under section 103 of the Social Security Contributions and Benefits Act 1992 or so much of any such pension or gratuity as relates to the injury or disease (hereinafter referred to as “the relevant part” ), together with-

(a) any increase in such pension payable by way of unemployability supplement under paragraph 2 of Part I of Schedule 7 to that Act (or so much of any such increase as is proportionate to the relevant part of the said pension) but excluding any increase in that supplement under paragraph 3 of Part I of Schedule 7 to that Act; and

(b) any increase in such pension payable under paragraphs 4 or 6 of Part I of Schedule 7 to that Act in respect of a dependant or so much of any such increase as is proportionate to the relevant part of the said pension;

but excluding any increase under sections 104 (increase where constant attendance is needed) or 105 (increase for exceptionally severe disablement) of that Act;

(ii) incapacity benefit payable under section 30A of the Social Security Contributions and Benefits Act 1992  in respect of the injury or disease together with any increase in such benefit payable under sections sections 80 (dependent children), 86A[9] (increase for adult dependants) and 87[10] (rate of increase where associated retirement pension is attributable to reduced contributions) of that Act;

(iii) severe disablement allowance payable under section 68 of the Social Security Contributions and Benefits Act 1992  in respect of the injury or disease together with any increase in such allowance payable under section 90(1) (dependants) of that Act;

(iv) reduced earnings allowance payable under paragraph 11 of Part IV of Schedule 7 to the Social Security Contributions and Benefits Act 1992 in respect of the injury or disease;

(v) retirement allowance payable under paragraph 13 of Part V of Schedule 7 to that Act in respect of the injury or disease.

(7) Where the relevant pension scheme is the Federated Superannuation System for Universities, the Federated Superannuation Scheme for Nurses and Hospital Officers or any other scheme under which the benefits may be paid otherwise than as an annual pension, and all or part of the contributions to the scheme on behalf of the person have been paid from public funds, the pension payable thereunder shall, for the purposes of paragraph (6)(a), be deemed to include three-quarters of such sum that, in the opinion of the Secretary of State, represents the value, expressed as an annual amount, of the benefits of the policies or accumulated investments held under the scheme on behalf of the person.

(8) Where a practitioner has received payments under regulation 75 of the 1961 regulations or under regulation 79 of the 1980 regulations, there shall, for the purposes of paragraph (6)(a), be deemed to be payable to him a pension of such amount, if any, as the Secretary of State thinks fit, but not exceeding the amount of the pension to which the practitioner would, if he had not been entitled to such payments, have become entitled under those regulations, in respect of the period or periods for which such payments were made to him, if he had attained age 60 and had served the minimum period of qualifying service.

(9) A person mentioned in paragraph (2) or (3), or a person mentioned in paragraph (4) who subsequently ceases to be employed as such a person by reason of the injury or disease, shall be entitled to receive a lump sum of the proportion of average remuneration shown in column (2) of the table hereunder in relation to the degree by which his earning ability is reduced.

Table

Degree of reduction of earning ability Proportion of average remuneration
(1) (2)
More than 10% but not more than 25% One-eighth
More than 25% but not more than 50% One-quarter
More than 50% but not more than 75% Three-eighths
More than 75% One-half

4A Recovery of Costs

(1) Where, during the period commencing 1st April 1991 and ending 31st March 1997, a lump sum under regulation 4(9) or 11 of these Regulations or regulation 4(9) or 11 of the previous regulations was paid to or in respect of a person to whom regulation 3(1) of these Regulations applies or, as the case may be, to or in respect of a person to whom regulation 3(1) of the previous Regulations applied, that person’s employing authority shall be liable to pay a contribution to the Secretary of State in accordance with paragraph (4) representing the total amount of that lump sum together with the cost of providing increases to it under Part I of the Pensions (Increase) Act 1971.

(2) Subject to paragraph (3), where, on or after 1st April 1997, a claim is made for an allowance or lump sum under paragraph (2), (3), (4) or (9) of regulation 4, or regulation 7, 8, 9 or 11 by or in respect of a person to whom regulation 3(1) of these Regulations applies, that person’s employing authority shall, on the payment by the Secretary of State pursuant to that claim of the allowance or any part of it, or, as the case may be, of the lump sum, be liable to pay a contribution to the Secretary of State in accordance with paragraph (5) representing –

(a) the total amount of such allowance or such part, or,

(b) the total amount of such lump sum,

together with the cost of providing increases to it under Part I of the Pensions (Increase) Act 1971.

3) Paragraph (2) shall not apply to any claim made on or after 1st April 1997 where that claim is made in respect of a person who dies on or after that date but who was, before that date, in receipt of an allowance or lump sum under paragraph (2), (3), (4) or (9) of regulation 4 or who would, before that date, have received such an allowance or lump sum under any of those paragraphs but for –

(a) the fact that his earning ability was not permanently reduced by more than 10 per cent. in accordance with the requirements of paragraph (1) of regulation 4; or

(b) the application of paragraph (4) or (6) of regulation 4 to the calculation of his benefits under that regulation.

(4) Contributions payable to the Secretary of State under paragraph (1) shall be paid not later than one month from the end of the quarter in which the lump sum referred to in that paragraph was paid, or, in any case where that period has expired, within such longer period as the Secretary of State may allow.

(5) Contributions payable to the Secretary of State under paragraph (2) shall be paid not later than one month from the end of the quarter in which the allowance or any part of it, or, as the case may be, the lump sum, referred to in that paragraph was paid.

(6) This regulation and regulation 4(5) shall apply-

(a) to a practitioner, as if he were an officer of the Health Authority in whose area he is providing services;

(b) to-

(i) a registered dentist who is engaged, under a contract for services, by a person providing piloted services to carry out personal dental services in accordance with a pilot scheme, or

(ii) a dental pilot scheme employee who is employed as such otherwise than by a National Health Service Trust or a Primary Care Trust,

as if he were an officer of the Health Authority with which the person providing the piloted services has agreed to provide them; and

(c) to-

(i) a person providing piloted services, or

(ii) a registered medical practitioner who is a medical pilot scheme employee,

as if he were an officer of the Health Authority or, as the case may be, the Primary Care Trust with which the person providing the piloted services has agreed to provide them.

(7) Where, in the case of a person referred to in paragraph (1)(k) of regulation 3, paragraph (2) of that regulation applies with respect to any employment of his (within the meaning of that regulation) as a member of a Primary Care Trust or of its Executive Committee, this regulation shall apply to that person as if he were an officer employed by that Primary Care Trust.

Meaning of service

5. A person’s service shall comprise all of the periods which at the date on which he ceased to hold an employment or appointment mentioned in regulation 3(1), or on which the emoluments of such employment or appointment were reduced, as the case may be, fell within any of the following descriptions, but no period shall be taken into account under more than one description-

(a) any period during which he held such employment or appointment;

(b) any period of employment that would be taken into account for any purpose of a relevant pension scheme;

and

  1. any other period that the Secretary of State may approve in any particular case.

All periods of service are consolidated automatically – assuming that they are recorded and brought to official notice.

PART III Benefits on Death of Injured Person

Grounds of entitlement

6. If a person to whom these Regulations apply dies as a result of, or his death was, in the opinion of the Secretary of State, substantially hastened by, the injury or disease, the Secretary of State shall pay in respect of that person (hereinafter referred to as “the deceased” ) the benefits described in this part of these Regulations, except that such benefits shall not be payable in respect of an injury or disease wholly or mainly due to, or seriously aggravated by, the culpable negligence or misconduct of the deceased.

Widow’s or widower’s allowance

7.-(1) Subject to the provisions of this regulation and to regulation 10, there shall be payable to the widow or widower of a person mentioned in regulation 6 an annual allowance of the amount, if any, which when added to the amount of any pension payable under a relevant pension scheme in respect of the deceased, to or for the benefit of the widow or widower, will provide an income of 45 per cent. of the deceased’s average remuneration.

(2) Subject to paragraph (3), for the first 6 months immediately following the death of a person who, at the date of his or her death was entitled to an allowance under these Regulations, there shall be payable to the widow or widower an annual allowance of the amount, if any, which when added to the aggregate mentioned in paragraph (1) will provide an income of the percentage of average remuneration by reference to which the deceased’s annual allowance was calculated:

Provided that this paragraph shall not apply where the aggregate of annual allowances otherwise payable under paragraph (1) and regulations 8(1) and 9(1) would exceed an allowance payable under this paragraph.

(3) A widow or widower shall not be entitled to receive an allowance-

(a) if the marriage took place after the deceased last ceased to be employed as a person to whom these Regulations apply or after the date on which his or her earning ability was reduced as a result of the injury or disease, whichever is the later;

(b) if at the date of the deceased’s death such widow or widower and a man or, as the case may be, a woman to whom she or he is not married are living together as husband and wife; or

(c) in respect of any period after such widow or widower remarries or during which she or he lives together with another person as if she or he was married to that other person, so, however, that where such marriage has terminated, the Secretary of State may restore an allowance to a widow or widower if she is satisfied that such widow or widower is suffering hardship.

(4) Where the deceased died before 6th April 1988, a widower shall not be entitled to receive an allowance unless, at the date of the deceased’s death, he was incapable by reason of permanent ill-health or infirmity of mind or body of earning his own living and was wholly or mainly dependent upon the deceased.

Child’s allowance

8.-(1) Subject to the provisions of this regulation and to regulation 10, on the death of a person mentioned in regulation 6 or, where an allowance is payable under regulation 7(2), on the termination of payment of that allowance, there shall be payable to any dependent child or children an annual allowance of the amount, if any, which when added to the annual amount of any pension payable under a relevant pension scheme in respect of the deceased to, or for the benefit of, such child or children will provide an income of 10 per cent. of the deceased’s average remuneration multiplied by the number of children not exceeding four, or of twice that sum where there is no surviving parent:

Provided that where the Secretary of State is satisfied that a surviving parent is not maintaining such child or children, she may pay the allowance as if there were no surviving parent.

(2) Subject to the provisions of this regulation, “dependent child ” means any child who is-

(a) a child or grandchild of the deceased;

(b) a step-child of the deceased by a marriage entered into before the date on which the deceased ceased to be in employment mentioned in regulation 3(1) or a child legally adopted by the deceased before that date;

(c) a brother or sister, or a child of a brother or sister, of the deceased or the deceased’s spouse (any half-brother or step-brother being treated as a brother, and any half-sister or step-sister being treated as a sister, for this purpose); or

(d) a child who, immediately before the deceased ceased to be in employment mentioned in regulation 3(1), the deceased had intended to adopt or a child who, at that time, had been dependent on the deceased for 2 years or (if less) half the child’s life;

and who satisfies the requirements of paragraph (3).

(3) The requirements of this paragraph are satisfied by any child described in paragraph (2) who was-

(a) born before the deceased ceased to be in employment mentioned in regulation 3(1) and who was dependent on the deceased when the deceased died and, if the deceased died after ceasing to be in employment mentioned in regulation 3(1), was also dependent on the deceased when the deceased ceased to be in such employment;

or

(b) born one year or less after the deceased ceased to be in employment mentioned in regulation 3(1) (being a date on or after 26 November 1990) and who either was dependent on the deceased both immediately after being born and when the deceased died, or would have become dependent on the deceased if the deceased had not died before the child was born.

(4) A child is a dependent child for so long as he is-

(a) under age 17; or

(b) aged 17 or over and continuing in full-time education; or

(c) aged 17 or over and participating in full-time training for a trade, profession or vocation, for which he is not receiving remuneration in excess of the allowable maximum; or

(d) aged 17 or over and taking a break in such full-time education or training providing the Secretary of State is satisfied that the child intends to return to some such education or training.

(5) A child who is aged 17 or over and who has ceased to be a dependent child will be treated as a dependent child if he returns to full-time education, or to full-training for a trade, profession or vocation for which he is not receiving remuneration in excess of the allowable maximum, before reaching age 21 and within 12 months after ceasing to be a dependent child.

(6) In this regulation, the “allowable maximum” means the amount to which a pension under the pension scheme regulations of £1,702 a year beginning on 11th April 1994 would have been increased under Part I of the Pensions (Increase) Act 1971 at the date in question (calculated as if the words “for a period of not less than two years” in section 3(3)(d) of that Act were omitted), plus the yearly amount of any expenses necessarily incurred for the purposes of the education or training.

(7) An allowance payable under this regulation shall be paid to the child, or, in such proportion as the Secretary of State thinks fit, to the children, entitled thereto:

Provided that the Secretary of State may, if she thinks fit, pay the allowance to such other person or persons as she may specify and such person or persons shall apply such allowance, in accordance with any directions given by the Secretary of State, for the benefit of the child or children entitled thereto.

Dependent relative’s allowance

9.-(1) Subject to paragraph (4) and to regulation 10, on the death of a person mentioned in regulation 6 or, where an allowance is payable under regulation 7(2), on the termination of payment of that allowance, an annual allowance calculated in accordance with paragraph (2) or (3), as the case my be, shall be payable to-

(a) a parent who is either the deceased’s mother or his father or his spouse’s mother or father, and who was wholly or mainly dependent on the deceased at the date of his death; and

(b) each child who has attained the age of 17 years and is not receiving full-time education or undergoing full-time training for a trade, profession or vocation, but who, if he or she had not attained the age of 17 years, would be entitled to an allowance under regulation 8, and who was incapable by reason of permanent ill-health or infirmity of mind or body of earning his or her own living at the date of the death of the deceased or at the date he or she ceased to be entitled to an allowance under regulation 8, whichever is the later, and has at all times since then been so incapable,

(hereinafter referred to as “a dependent relative” ).

(2) The annual allowance payable to a dependent relative referred to in paragraph (1)(a) shall be payable to the first dependent relative therein mentioned who is eligible at any one time and shall be the amount, if any, which when added to the annual amount of any pension payable under a relevant pension scheme in respect of the deceased to that dependent relative will provide an income of 20 per cent. of the deceased’s average remuneration, or of 45 per cent. of that amount, during any period in which there is no widow or widower of the deceased to whom an allowance is or might be payable under regulation 7:

Provided that where the Secretary of State is satisfied that during any period that dependent relative is not being maintained by a surviving spouse of the deceased, she may pay the allowance during such period as if there were no surviving spouse.

(3) The annual allowance payable to a dependent relative referred to in paragraph (1)(b) shall be the amount, if any, which when added to the annual amount of any pension payable under a relevant pension scheme in respect of the deceased to that dependent relative will provide an income of 20 per cent. of the deceased’s average remuneration, or of 45 per cent. of that amount, where the dependent relative has no surviving parent:

Provided that where the Secretary of State is satisfied that during any period that dependent relative is not being maintained by a surviving parent, she may pay the allowance during such period as if there were no surviving parent.

(4) A dependent relative shall not be entitled to receive an allowance-

(a) if he or she subsequently marries or is living together with another person as husband and wife; or

(b) in respect of any period exceeding one month during which he or she is maintained out of money provided by Parliament in a hospital or other institution so maintained.

(5) An allowance payable to a dependent relative may be paid to such other person as the Secretary of State may specify and that person shall apply the allowance, in accordance with any directions given by the Secretary of State, for the benefit of that dependent relative.

(6) In paragraph (1)(a), a reference to a parent includes a reference to a step-parent and an adoptive parent.

 Restriction of allowances

10. Where, apart from this regulation, the aggregate of the annual rates of allowances payable under regulations 7 to 9 and of any pensions or benefits taken into account in calculating the allowances would exceed the rate of the deceased’s average remuneration, the individual allowances shall be reduced by such amounts as the Secretary of State may from time to time think fit so that such aggregate does not exceed the rate of the deceased’s average remuneration.

Lump sum payment on death

11.-(1) On the death of a person mentioned in regulation 6 a lump sum of one-half of his average remuneration-

(a) shall be payable to the widow or widow or widower to whom an allowance in respect of the deceased is payable under regulation 7;

(b) if not payable under (a) above, shall be payable to the child or among the children of the deceased or of his spouse, to whom an allowance in respect of the deceased is payable under regulation 8 or 9(1)(b) and (3);

(c) if not payable under (a) or (b) above, shall be payable to a dependent relative to whom an allowance in respect of the deceased is payable under regulation 9(1)(a) and (2); or

(d) if not payable under (a), (b) or (c) above, shall be payable to any other child or among any other children to whom an allowance in respect of the deceased is payable under regulations 8 or 9(1)(b) and (3);

Provided that a lump sum shall not be paid under this regulation if a lump sum has been paid to the deceased under regulation 4(9) in respect of the same injury or disease.

(2) The provisions of regulation 8(7) or 9(5), as the case may be, shall apply in respect of a payment under paragraph (1)(b), © or (d).

Incidental provisions

12.-(1) For the purposes of this Part of these Regulations, the amount of a pension payable under a relevant pension scheme shall be deemed not to include any amount by which that pension is increased under the Pensions (Increase) Act 1971 after the date at which the average remuneration used in the calculation of the allowance was calculated.

(2) Where the relevant pension scheme is a scheme mentioned in regulation 4(7), the pension payable under such a scheme shall, for the purposes of this Part of these Regulations, be deemed to include such sum, if any, which, in the opinion of the Secretary of State, represents the value, expressed as an annual amount, of the benefits payable under that scheme in respect of the deceased to the person entitled to the allowance.

(3) Where the deceased was a practitioner who received payments under regulation 75 of the 1961 regulations or regulation 79 of the 1980 regulations, there shall, for the purposes of regulations 7 to 9, be deemed to be payable under the relevant pension scheme a pension of such amount, if any, as the Secretary of State thinks fit, but not exceeding the amount of the widow’s or the widower’s pension or the child’s allowance, as the case may be, which would, if the deceased had not been entitled to such payments, have been payable under the pension scheme regulations in respect of the period or periods for which such payments were made to him or her.

(4) Any child who becomes, or children who became, entitled to benefits in respect of more than one deceased shall be entitled to receive only those benefits in respect of that deceased which, in the opinion of the Secretary of State, provide the more favourable result.

PART IV Review of Allowance and Miscellaneous

Review and adjustment of allowance

13.-(1) The Secretary of State shall review the amount of an allowance payable under Part II of these Regulations in the light of-

(a) a further reduction of the person’s earning ability by reason of the injury or disease;

(b) the commencement or cessation of payment to the person of a benefit mentioned in regulation 4(6)(b), by reason of the injury or disease; or

(c) the commencement of a pension payable to the person under a relevant pension scheme or an increase in such a pension not being an increase under the Pensions (Increase) Act 1971; and for this purpose such pension shall be deemed to be reduced proportionately by the amount by which an official pension, that began on the date at which the average remuneration used in the calculation of allowance was calculated, would have been increased under the Pensions (Increase) Act 1971 by the date of the increase or commencement of the first mentioned pension.

(2) A person not entitled to benefits under these Regulations by reason only that his earning ability was not permanently reduced by more than 10 per cent. shall be entitled to receive such benefits if, in consequence of a further reduction by reason of the inquiry or disease, his earning ability is permanently reduced to aggregate by more than 10 per cent. except that such benefits shall not be payable in respect of any period before such further reduction or for a period of more than 13 weeks before the Secretary of State is notified in writing of such further reduction, whichever is the later.

(3) The Secretary of State shall review the amount of an allowance payable under Part III of these Regulations in the light of any reduction in, or the cessation of, a pension under a relevant pension scheme in respect of the deceased payable to the person entitled to such allowance.

(4) Where a person who is entitled to an allowance under Part II again becomes employed in an employment mentioned in regulation 3(1) or becomes employed in an employment mentioned in any corresponding provision in force in Scotland, Northern Ireland or the Isle of Man, then, whilst he continues in such employment, the allowance under Part II shall be abated by an amount by which it would, when aggregated with his relevant income, exceed the amount of his former earnings.

For the purposes of this paragraph-

(a) “relevant income ” means the amount of any emoluments payable to the person in question in respect of the further employment plus the amount of any pension payable to him under a relevant pension scheme;

(b) “former earnings ” means, in relation to that person, the average remuneration by reference to which the allowance was determined or the annual rate of his emoluments at the date on which the allowance became payable, whichever is higher;

(c) where the further employment is employment of the type mentioned in regulation 3(1)©, that person shall be deemed to be in receipt of emoluments equal in amount to those which would have been payable, in the opinion of the Secretary of State, to a person employed whole-time by an employing authority on similar duties.

(5) Where, on review of an allowance under the previous regulations, regulation 4(6)(b)(vi) of those Regulations did not apply by reason that the person to whom the allowance was payable was not in the employment of an employing authority on or after 1st April 1991 then, on any further review of the allowance payable to that person under these Regulations, no account shall be taken of any amount mentioned in regulation 4(6)(b)(iv) or (v).

Benefits are calculated on the basis of earnings before the injury. If the claimant has taken lower paid employment or reduced their hours it is their earlier earnings which should be taken into account.

Loss of rights to benefit

14. The Secretary of State may direct that all or part of any benefit under these Regulations payable to or in respect of a person whom these Regulations apply be forfeited if that person is convicted of any of the following offences committed before the benefit becomes payable-

(a) an offence in connection with employment mentioned in regulation 3(1), which is certified by the Secretary of State either to have been gravely injurious to the State or to be liable to lead to a serious loss of confidence in the public service;

(b) an offence of treason;

(c) one or more offences under the Official Secrets Acts 1911 to 1989  for which the person has been sentenced on the same occasion to a term of imprisonment of, or to two or more consecutive terms amounting in aggregate to, at least 10 years.

Offset for crime, negligence or fraud

15.-(1) If a loss to public funds occurs as a result of the criminal, negligent or fraudulent act or omission of a person to whom these Regulations apply, the Secretary of State may reduce any benefit under these Regulations payable to, or in respect of, that person by an amount equal to this loss.

(2) If the loss to public funds is equal to or greater than the value of the benefit under these Regulations payable to or in respect of the person, a reduction under paragraph (1) may result in the benefits ceasing to be payable.

(3) The Secretary of State shall give the person a certificate specifying the amount of the loss to public funds and of the reduction in benefits.

(4) If the amount of the loss is disputed, no reduction in benefits will be made until the person’s obligation to make good the loss has become enforceable under the order of a court or arbitrator.

(5) Where the loss referred to in paragraph (1) is suffered by an employing authority, the amount of the reduction in benefits will be paid to the employing authority.

Officers transfered in consequence of reorganisation

16.-(1) This regulation shall apply to or in respect of any person who was transferred to the employment of an employing authority under the National Health Service Reorganisation Act 1973  and who, having remained in the employment of that authority without break of one day or more, suffers an injury or contracts a disease in respect of which, had he remained in his previous employment, he would have been eligible to receive benefits by virtue of any enactment, scheme or arrangement associated with that employment.

(2) Where the Secretary of State if of the opinion that, in relation to any person to whom or in respect of whom this regulation applies, any benefits specified in paragraph (1)

(a) would, when taken as a whole, have been more favourable than any benefits payable under these Regulations, or

(b) would have been payable where no benefits would have been payable under these Regulations,

the Secretary of State, having regard to the provisions of such enactment, scheme or arrangement, may make such payments, to or in respect of such person, supplementary to any benefits which otherwise might be payable under these Regulations, as the Secretary of State considers equitable so that the benefits, taken as a whole, are not less favourable then those which might be payable under such provisions.

Damages

17.-(1) The Secretary of State shall take into account against the benefits provided in these Regulations any damages or compensation recovered by any person in respect of the injury or disease or in respect of the death of a person to whom these Regulations apply, and such benefits may be withheld or reduced accordingly.

(2) For the purposes of paragraph (1), a person shall be deemed to have recovered damages-

(a) whether they are paid in pursuance of a judgement or order of a court or by way of settlement or compromise of his claim and whether or not proceedings are instituted to enforce the claim;

or

(b) if they are recovered for his benefit in respect of a claim under the Fatal Accidents Act 1976 .

(3) Where any payments in respect of a benefit under these Regulations are made before the right to, or the amount of, such damages or compensation is finally determined, then if and when a right to and the amount of such damages or compensation is finally determined the Secretary of State shall have the right to recover from the beneficiary an amount not exceeding-

(a) where the amount of the payments made by the Secretary of State is less than the net amount of the damages or compensation, the amount of those payments;

(b) where the amount of those payments is not less than the net amount of the damages or compensation, such part of those payments as is equal to the net amount of the damages or compensation.

(4) So far as any amount recoverable under this regulation represents a payment made by the Secretary of State from which income tax has been deducted before the payment, the proper allowance shall be made in respect of the amount so deducted, and in this regulation the expression “the net amount of the damages or compensation” means the amount of the damages or compensation after deducting any tax payable in the United Kingdom or elsewhere to which the damages or compensation are subject.

(5) No proceedings shall be brought to recover any amount under this regulation-

(a) after the death of the recipient of the payments; or

(b) after the expiration of 2 years from the date on which a right to, and the amount of, the damages or compensation is finally determined or from the date on which the final determination first came to the knowledge of the Secretary of State, if later.

(6) A certificate issued by the Secretary of State and stating the date on which the final determination of a right to, and of the amount of, any damages or compensation first came to her knowledge shall be admissible in any proceedings as sufficient evidence of that date.

Avoidance of duplicate benefits

18. If the Secretary of State is of the opinion that an injury or disease has been, or will be, taken into account for the purpose of any corresponding scheme the benefits of which or contributions towards which are payable out of public funds, she may make such deduction from the benefits under these Regulations as may appear to her to be equitable in order to secure that there may not be payable in respect of the same injury or disease benefits under these Regulations as well as benefits under a corresponding scheme.

Medical examination

19. The Secretary of State may require any person entitled, or claiming to be entitled, to an allowance under Part II of these Regulations, or under Part III of these Regulations on the grounds that he is incapable by reason of permanent ill-health or infirmity of mind or body of earning his own living, to submit to a medical examination by a registered medical practitioner selected by the Secretary of State, and in that event the Secretary of State shall also offer the person an opportunity of submitting a report from his own medical adviser as a result of an examination by him, and the Secretary of State shall take that report into consideration together with the report of the medical practitioner selected by the Secretary of State.

Benefits not assignable

20. Subject to the provisions of any enactment in that behalf, any benefit to which a person becomes entitled under these Regulations shall be payable to, or in trust for, that person and shall not be assignable.

Payment to personal representatives

21. Where, on the death of any person, any sum not exceeding £5,000 or such higher amount as would for the time being be applicable in relation to the death if these Regulations were an enactment to which section 1 of the Administration of Estates (Small Payments) Act 1965  (maximum amount disposable on death without representation) applied, is due to or in respect of that person under these Regulations, the Secretary of State may dispense with proof of the title of the personal representatives of that person and pay that sum to the personal representatives or to the person, or to or among any one or more of any persons, appearing to the Secretary of State on such evidence as she deems satisfactory to be entitled by law to a beneficial interest therein and any person to whom such a payment is made, and not the Secretary of State, shall thereafter be liable to account for any amount so paid.

Determination of questions

22. Any question arising under these Regulations as to the rights or liabilities of a person to whom these Regulations apply, or of a person claiming to be treated as such, or of the widow or widower or any dependant of such a person, shall be determined by the Secretary of State.

Option to persons detrimentally affected by these Regulations

23.-(1) This regulation applies in relation to any benefit which is payable to or in respect of a person who, having served in an employment or office, service in which qualified persons to participate in the benefits provided under the previous regulations, ceased to serve therein before these Regulations came into force.

(2) Where, in a case to which this regulation applies, any provision of these Regulations would operate in relation to any person so as to place that person in a worse position than he would have been if that provision had not applied, that person may elect that the provision shall not apply by giving notice in accordance with paragraph (3).

(3) A notice given pursuant to paragraph (2) shall be in writing and shall be delivered to the Secretary of State within 6 months of the coming into force of these Regulations or such longer period as the Secretary of State may allow.

(4) An election pursuant to paragraph (2) shall have effect in relation to the benefit referred to in paragraph (1) only to the extent that such benefit has accrued by virtue of periods of service rendered prior to the cessation referred to in paragraph (1) (or, if there has been more than one such cessation, the last of them before the coming into force of these Regulations) and in determining entitlement to, and the amount of, the benefit to that extent, such person shall be treated as if he had never recommended service at any time after that cessation (or, as the case may be, the last such cessation).

Revocations and savings

24.-(1) The Regulations or Orders specified in column 1 of the Schedule to these Regulations are hereby revoked to the extent mentioned in column 2 of that Schedule.

(2) Anything done under, or by virtue of, any regulation revoked by these Regulations, if it could have been done under or for the purpose of the corresponding provision of these Regulations, shall be deemed to have been done under or by virtue of the corresponding provision of these Regulations and anything begun under, or by virtue of, any such regulation may be continued under these Regulations as if begun under these Regulations.

Signed by authority of the Secretary of State for Health

Gerald Malone Minister of State Department of Health 21st March 1995

We consent to the making of these Regulations

Andrew Mitchell Tim Wood

Lords Commissioners of Her Majesty’s Treasury 23rd March 1995

SCHEDULE Regulation 24(1)

REVOCATIONS

Column 1 Column 2
Regulations/Orders Extent of Revocation
The National Health Service (Injury Benefits) Regulations 1974 (S.I. 1974/1547) The whole of the Regulations
The Health Services Act 1980 (Consequential Amendments) Order 1982 (S.I. 1982/288) Schedule 1, paragraph 20
The Family Practitioner Committees (Consequential Modifications) Order 1985 (S.I. 1985/39) Article 16
The National Health Service (Injury Benefits) Amendment Regulations 1985 (S.I. 1985/1626) The whole of the Regulations
The National Health Service Superannuation, Premature Retirement and Injury Benefits (Amendment) Regulations 1991 (S.I. 1991/584) Regulations 11, 12, 13, 14 and 15

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations revoke and replace the National Health Service (Injury Benefits) Regulations 1974. They provide for the payment, by the Secretary of State for Health, of injury benefits to or in respect of any person engaged in the National Health Service in England and Wales whose earning ability is reduced or who dies as a result of an injury suffered or a disease contracted in the course of his or her duties.

Part I of the Regulations contains definitions.

Part II specifies the persons to whom the Regulations apply (regulation 3) and the scale of benefits (regulation 4). Where a person’s earning ability is reduced permanently, an annual allowance of the amount necessary to provide an income of a specified level, inclusive of certain social security and occupational pension scheme benefits, is payable to that person according to the extent of the reduction of his earning ability and length of service. A lump sum is also payable to that person. There is also provision for the payment of a temporary allowance to a person who, as a result of an injury or disease, is on sick leave with reduced pay.

Part III specifies the benefits payable in respect of a person who dies as a result of, or whose death was hastened by, such an injury or disease. Allowances of the amount necessary to provide incomes of a specified level, inclusive of certain social security and occupational pension scheme benefits, are payable to a widow or widower (regulation 7), dependent children (regulation 8) and dependent relatives (regulation 9). A lump sum may also be payable to one of these persons (regulation 11).

Part IV provides for an allowance to be reviewed and varied in the light of changed circumstances (regulation 13), for the loss of rights to benefit in limited circumstances (regulation 14), for the offsetting of benefit in circumstances of crime, negligence or fraud (regulation 15), for supplementary payments in respect of certain transferred officers (regulation 16), for the taking into account of damages recovered by or in respect of the injured person (regulation 17), for the avoidance of duplicate benefits (regulation 18) and for the determination of questions (regulation 22).

Regulation 23 makes provision for certain persons who might be detrimentally affected by any provisions of these Regulations these to elect that those provisions shall not apply. Regulation 24 and the Schedule to the Regulations make consequential revocations.

These Regulations do not impose any costs on business.

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