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Changes to NHS Injury Benefit Scheme (added 9/1/12)

What is the current scheme:

According to the NHS Business Services Authority web site,

'The purpose of the Scheme is to provide an annual income to an employee who suffers a temporary loss of NHS earnings (TIA), or a permanent loss of earnings ability (PIB), resulting from an injury wholly or mainly attributable to the duties of their NHS employment. The Scheme may also pay benefits to the spouse and dependents of a NHS employee whose death has been caused by, or hastened by, their NHS duties’.

Who is covered?

The review covers the Injury Benefits scheme in England & Wales and Scotland. The scheme is open to the following NHS staff,

Almost all staff employed in the NHS are covered by the Scheme from their first day of work until their last day of employment and they do not have to be members of the NHS Pension Scheme. NHS employees covered by the Scheme include:

An employee of a NHS Trust, PCT, Health Authority (including Special and Strategic HAs), Local Health Board
GPs, Ophthalmic Practitioners, and Dental Practitioners working for the NHS
Holders of honorary appointments with an Employing Authority
Holders of NHS appointments approved by the Scheme.
Employees of certain other NHS organisations that have been approved by the Secretary of State to be covered by the Scheme (known as Direction Employers - more information can be found at NHS Pensions.

Who is NOT covered?

GP practice staff, GP co-operative staff, dental practice staff, APMS staff, freelance GP and dental locums, most Direction employees, reservists, and staff working for a private or public limited company that provides a service to the NHS (i.e. agency staff) are not covered by the Scheme.

The authority to pay either Temporary Injury Allowance or Permanent Injury Benefit comes from the Injury Benefit Regulations.

Temporary Injury Allowance

Is payable in respect of eligible staff who can demonstrate that they have incurred injury or illness which is wholly or mainly attributable to the NHS employment and who have suffered a reduction in their pay as a result of the qualifying injury. While they remain in employment they will receive a top up payment up to 85% of pre reduction earnings.

TIA is administered locally by individual employers. If dissatisfied with the outcome of an application the individual can appeal via the relevant pension’s agency Internal Dispute Resolution procedure and ultimately to the Pensions Ombudsman.

Permanent Injury Benefit

Is payable in respect of eligible staff who can demonstrate that they have incurred injury or illness which is wholly or mainly attributable to their NHS employment, and who are no longer under a contract of employment. The level of payment they will receive is determined by the length of their NHS service and by the percentage loss of earnings ability which they have suffered as a result of the qualifying injury/illness.

A table confirming the rates payable is available here.

PIB applications are made directly to the relevant Pension’s Agency on form AW13. If dissatisfied with the outcome of an application the individual can appeal via the relevant Pensions Agency Internal Dispute Resolution procedure and ultimately to the Pensions Ombudsman.

The Review

The review has centered round the following issues:

Cost, the cost of successful claim is met by the individual NHS employer or PCT.
Injury benefits regulations, deemed as not fit for purpose by NHS Employers, they cite the number of successful challenges against the application of the regulations to support this.
Accessibility, the scheme is known as the NHS best kept secret and is under utilised.
Replicability, private providers who undertake the provision of NHS services were not willing to replicate this scheme on the grounds of cost.

Proposed changes:

The review partners have provisionally agreed the following:

The current Injury Benefit Regulations should be replaced by contractual provision held within a new section of the Agenda for Change (A4C) Terms and Conditions Handbook.

Future injury benefit provision would be limited to the period of the employment contract only.

This high level agreement contains the following provisions:

Agreement would cover all staff covered by NHS Staff Council agreements (England and Wales and Scotland only).
The review partner’s expectation is that the new arrangements will also be incorporated into doctors and dentist’s terms and conditions of service.
Existing definition of injury as defined in The National Health Service (Injury Benefits) Regulations 1995 remains and covers any injuries, diseases or conditions that are wholly or mainly attributable to their NHS employment.
Entitlement to existing injury benefits (Temporary Injury Allowance and Permanent Injury Benefit) and death benefits for new claimants would cease.
Future support will be restricted to the period of the employment contract only.
Temporary injury allowance (currently paid whilst someone remains in employment) would end and be replaced by an injury allowance of 85% of normal pay (which would continue to be subject to National Insurance Contributions and tax but will not be pensionable) and restricted to a period of up to 12 months from the time sick pay is reduced. Any monies, in the form of state benefits or via compensation payments, received for loss of earnings will be offset. All other benefits received by staff should be ignored.
No time limit set for applications and acceptance that the burden of proof for causation would lie with the employee.
All disputes to be managed via local grievance procedures.
Allowing the new injury allowance to be paid to eligible staff on phased return where full pay has been exhausted (as per Annex Z)
Enabling pay protection to be offered to qualifying staff retaining employment after a work related injury or illness on a lower band or fewer hours as per existing pay protection policies.
New arrangements to be supplemented by supporting guidance to employers and employees with expected coverage of the following: definition of injury; employer and employee responsibilities and roles; the claim process, including dispute resolution; decision making responsibilities with advice from OH (but no delegated decision making to those services); Interaction with other forms of compensation and DWP benefits; integrating this provision with existing managing absence policies and Annex Z; links to implementing the recommendations of the Boorman review and improving the health and well-being of your workplace.

Clarity is sought on the implications for all those staff currently able to access the current provisions, detailed above. As noted above this agreement would cover all staff covered by NHS Staff Council agreements (note that mandate covers England and Wales and Scotland only), as opposed to restricting arrangements to those staff covered on A4C terms and conditions only (which could lead to inconsistency of approach across different staff groups).

Coverage of the proposed future arrangements

Doctors:
An employee of a NHS Trust, PCT, Health Authority (including Special and Strategic HAs), Local Health Board Provisional agreement covers all staff covered by NHS Staff Council agreements (England and Wales and Scotland only).

Doctors’ and Dentists’ terms and conditions are covered by separate governance arrangements (although BMA are represented at Staff Council).

The review partner’s expectation is that the new arrangements will be incorporated into doctors and dentist’s terms and conditions of service. However, the NHS Staff Council does not have the authority to impose Staff Council agreements on doctors and dentists. Custom and practice dictates that the relevant representatives (BMA/NHSE) on the NHS Staff Council will need to consider the implications of the proposed arrangement in their separate negotiating forums. The review partner’s expectation is that the new arrangements will also be incorporated into doctors and dentist’s terms and conditions of service.

GPs, Ophthalmic Practitioners, and Dental Practitioners working for the NHS:

The review partners intend to recommend that the appropriate body considers their entitlement in the spirit of this agreement.

The review partners recognise there are a number of problems associated with providing benefits to self employed contractors where there is little opportunity to manage risks and therefore costs.

The provisional agreement means going forward independent contractors will no longer have access to the current provisions (unless an injury occurred before the cut off date) and will not be captured under the new arrangements.

In respect of the relevant independent contractors covered by the current provisions the review partners recommend that this issue is referred to the relevant stakeholders (DH/NHSE/BMA) for consideration under the appropriate governance arrangements.

Honorary Appointments:
The agreement would cover all staff covered by NHS Staff Council agreements (England and Wales and Scotland only). Employers will be required to determine access locally for non A4C staff on local arrangements.

The emerging view is that coverage would not be retained under the new arrangements.

Employees of certain other NHS organisations that have been approved by the Secretary of State to be covered by the Scheme (Direction Employers):

NHS Pensions has confirmed that presently only two direction employers offer the Injury Benefit scheme.

Setting the access criteria within the scope of NHS Staff Council agreements will clarify entitlement for staff employed by Direction Employers and for those that transfer out of the NHS under TUPE arrangements.

This implies that for staff that transfer out of the NHS under TUPE no claim can be made against former NHS employers, other than a possible legal PI claim.

Transitional arrangements

There was initial acceptance by the review partners that where there is a delay in the onset of symptoms for injuries that occur before any agreed cut off date that this will be considered under the current Scheme provisions. It was accepted that the burden of proof would rest with the individual to prove that the injury occurred under existing arrangements.

No time-limit will therefore be set and the burden of proof for causation will remain with the employee.

Timetable

The Department of Health has indicated a possible implementation date of 1 October 2012.

Further information is available from the BMA Pensions Department on 020 7383 6166/6138.

Ends