Nhs Injury Benefit Scheme · CAS-29583-N5W1

CAS-29583-N5W1

Ombudsman’s Determination Applicant: Mrs R

Scheme: NHS Injury Benefit Scheme

Respondent: NHS Business Services Authority (NHS BSA)

Outcome

Complaint summary

Background information, including submissions from the parties Background

“(1) 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 and who makes a claim in accordance with regulation 18A.

(2) Where a person to whom regulation 3(1) applies ceases to be employed before 31st March 2018 as such a person by reason of the injury or disease and no allowance or lump sum, other than an allowance under paragraph (5) or (5A), 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, 1 CAS-29583-N5W1 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 ...

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

(a) any pension payable to the person under a relevant pension scheme, …

(b) any of the following benefits, at the rates in operation at the date on which the employment ceased … 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 …; and

(b) any increase in such pension payable … 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 …;

(iii) severe disablement allowance payable under section 68 of the Social Security Contributions and Benefits Act 1992 in respect of the injury or disease …;

(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.

(vi) employment and support allowance payable under section 1(2)(a) and section 1B of the Welfare Reform Act 2007, in respect of the injury or disease, …”

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1 Mrs R entered a figure of £979.80 for her total expenditure.

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NHS BSA’s position

6 CAS-29583-N5W1 Adjudicator’s Opinion

2 Section 32, Limitation Act 1980 3 Webber v Department for Education and another [2016] EWHC 2519 (Ch)

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“Public sector organisations may waive recovery of overpayments where it is demonstrated that recovery would cause hardship. But hardship should not be confused with inconvenience. Where the recipient has no entitlement, repayment does not in itself amount to hardship, especially if the overpayment was discovered quickly. Acceptable pleas of hardship should be supported by reasonable evidence that the recovery action proposed by the paying organisation would be detrimental to the welfare of the debtor or the debtor’s family. Hardship is not necessarily limited to financial hardship; public sector organisations may waive recovery of overpayments where recovery would be detrimental to the mental welfare of the debtor or the debtor’s family. Again, such hardship must be demonstrated by evidence.”

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https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1000670/ MPM_Spring_21_with_annexes_080721.pdf 10 CAS-29583-N5W1

Mrs R did not accept the Adjudicator’s Opinion and the complaint was passed to me to consider. Mrs R provided further comments which are summarised below. I have considered Mrs R’s comments, but I find that they do not change the outcome. I agree with the Adjudicator’s Opinion.

Mrs R’s further comments

Ombudsman’s decision

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I do not uphold Mrs R’s complaint against NHS BSA. I suggest that she provides it with evidence of her health issues in order that it can assess whether it would be appropriate for it to waive recovery of some or all of the remaining overpayment.

Anthony Arter Pensions Ombudsman

23 May 2022

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