Source · Select Committees · Public Accounts Committee
Recommendation 6
6
Deferred
Develop estimates and set out measures to prevent double payment for negligence care.
Recommendation
Clinical negligence claims are settled on the basis of costs of care in the private sector and yet there is nothing to stop the claimant using the NHS or publicly funded social care in the future, potentially inflating the costs of claims. It is not clear the extent to which the taxpayer is paying twice for clinical negligence – once through compensation for injury 6 and then again by providing subsequent health and social care. A law from 1948 states that damages must be calculated on the presumption that care will be provided by the private sector and not the NHS or local government. NHS Resolution identified this as a major contributory factor to the increasing cost of very high-value cases (£1 million or more), where about 60% of the damages relate to future care. Although claimants can be asked to declare in court if they plan to use the NHS for treatment, this rarely happens in practice and cannot be mandated. NHS Resolution is unable to ask successful claimants for information on how they spend their award or whether they subsequently access state funded services to manage their condition. Local authorities are also not able to consider clinical negligence compensation awards when assessing eligibility for publicly funded social care. recommendation The Department should develop, within six months, proper estimates of the impact of assuming health and social care for clinical negligence victims will be provided exclusively by the private sector. It should by the same deadline set out additional measures—including any requiring changes to legislation—which it judges would effectively guard against the risk of paying twice for the care of those it has harmed and an indicative timeline for their potential implementation. 7 1 The rising costs of clinical negligence Introduction
Government Response Summary
The government acknowledges the concern of 'Double Recovery' and states it is under consideration. However, due to limited data, it cannot commit to providing estimates within the six-month timeframe and will provide further information on its intentions by Autumn 2026.
Government Response
Deferred
HM Government
Deferred
The government is keeping this under consideration. assessing damages for personal injury. This means claimants are able to claim damages for future care costs (for example, including private care) and then go on to use state-funded NHS and social care services too. Double Recovery, or the instance of the state paying twice, once in terms of compensation calculated on the basis of private care, and again if the recipient of the compensation then goes on to use state-funded care, is a significant concern and an area that David Lock KC will focus on in his work. As the NAO’s Costs of clinical negligence report in October described, there is “no estimate of the extent to which clinical negligence claimants go on to use publicly funded health or social care services for their conditions, and little is known about how damages are used by claimants.” Working with David Lock KC, DHSC has sought to identify potential data sources in order to make an informed calculation and continues to do so. However, data in this area is limited, partly because there is no legal obligation for a claimant to notify the relevant service providers of their past compensation payments. DHSC is, therefore, unable to commit to the timeframe specified in this recommendation to provide estimates of the scale of double recovery. The government will write to the Committee by this Autumn 2026 on the case for change and provide additional information on the department’s intentions, including Double Recovery.