Partnership Review of the NHS Injury Benefit Scheme final agreement on proposals for reform

Transcription

1 Partnership Review of the NHS Injury Benefit Scheme final agreement on proposals for reform November 2012

2 1 Introduction The Department of Health and Scottish Government devolved responsibility for negotiations on changes to the NHS Injury Benefits arrangements to NHS Employers in partnership with NHS trade unions. The Injury Benefit review partners have been charged with making recommendations to the NHS Staff Council and Health Ministers on options for reform. Specifically, the objectives of the review, as set out in the jointly agreed terms of reference, were agreed as follows: agree joint recommendations to revise injury benefit arrangements in the NHS consider options for the replication of the injury benefit arrangements for those who are transferred outside the NHS agree recommendations which are fully costed and administratively feasible. 2 Managing injury and disease at work NHS Employers, NHS staff side and relevant stakeholders are committed to the principle and provision of financial support that is open, transparent and readily and easily accessible to all staff who suffer injury or illness as a result of work. 3 The NHS Injury Benefit Scheme The purpose of the current 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 dependants of a NHS employee whose death has been caused by, or hastened by, their NHS duties. TIA is paid while the individual is off sick and still employed by the NHS. Payment ends when the individual returns to work or retires/resigns from NHS employment. PIB is paid where an individual is forced through injury to retire or to move to another, lower paid employment. PIB provides a guaranteed income for life and where employment ends as a result of injury/ill health, a lump sum payment. Payments vary according to length of NHS service and the permanent reduction in earning ability caused by the injury. Under this scheme, both physical and psychological problems are covered. 2

3 4 The review partners' recommendations The NHS Injury Benefit review partners have jointly agreed to the recommendations set out below. The review partners believe that these measures are reasonable and allow employers the opportunity to invest in staff health, safety and wellbeing, as well as enabling rehabilitation and redeployment. Recommendation 1 Scope and coverage The current Injury Benefit Regulations will be repealed and replaced by a clear and transparent contractual provision held within a new section of the NHS terms and conditions handbook, which recompenses staff who have temporarily lost income due to an injury or illness as a result of work. Agreement would cover all staff covered by NHS Staff Council agreements (England and Wales and Scotland only). The review partner s explicit expectation is that the new arrangements will be incorporated into doctors and dentist s terms and conditions of service. The review partners recognise that the NHS Staff Council does not have the authority to impose Staff Council agreements on doctors and dentists and as such the relevant representatives on the NHS Staff Council will need to consider the implications of any revised arrangements in their separate negotiating forums. Independent contractors (General Practitioners, Ophthalmic Practitioners, and Dental Practitioners working for the NHS) 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. The funding for injury benefit awards granted from 1 April 1997 are allocated to PCTs as part of their general allocation. The review partners recommend that a portion of these funds (as funds to support existing beneficiaries will need to be maintained) could be used to provide alternative arrangements for independent contractors, in line with the review partners recommendations. The review partners recommend that this issue is referred to the relevant stakeholders (DH/NHSE/BMA/BDA) for consideration under the appropriate governance arrangements. Employers will be required to determine access locally for staff on local contractual arrangements. It is the expectation of the review partners that employers will adopt these arrangements for all staff in a statutory NHS body. Setting the access criteria within the scope of NHS Staff Council agreements will also clarify entitlement for staff that transfer out of the NHS under TUPE arrangements. 3

4 Recommendation 2 Continued access to current scheme provisions The rights of existing beneficiaries will be preserved and not detrimentally affected by the review partner proposals. All injuries occurring before the date of change will be considered under the current Scheme provisions. All injuries occurring after the date of change will be considered under the new arrangements. Where there is a delay in the onset of symptoms for injuries that occur before the date of change these will be considered under the current scheme provisions. o sunset clause for a period of 5 years (April 2013 March 2018). This will ensure that the provisions for temporary injury allowance, partial and full permanent injury benefits where a NHS injury or disease is discovered after cessation of NHS employment, remain completely unchanged o exception clause for an additional period of 20 years (April 2018 March 2038). Exception clause designed to deal with claims associated with delayed onset of symptoms for injuries occurring prior to the date of change. For claims made during the exception period, the claimant will be required to provide compelling evidence of a pre-2013 injury or disease to have their claim considered. The burden of proof will rest with the individual to prove causation and that the injury occurred under existing arrangements. The scheme administrators (NHS Pensions) will retain responsibilities for the maintenance of the repealed regulations, and decisions on the entitlement to benefits for late claims. This will not preclude the administrators from making any necessary changes to existing beneficiary provisions (restricted for the purposes of scheme administration and interpretation only) in response to changes in relevant legislation and ombudsman judgements. Recommendation 3 Structure of new provision Future injury benefit provision will be limited to the period of the employment contract only. Entitlement to existing injury benefits (Temporary Injury Allowance and Permanent Injury Benefit) and death benefits for new claimants will cease (noting the existing beneficiaries protections set out above). Injury allowance will be paid as an income top-up to eligible staff. The allowance will top up NHS sick pay (or earnings when on phased return on reduced pay) and certain other income (as specified below) to 85% of normal pay as defined in paragraph 14.4 of the NHS terms and conditions handbook). The allowance will be restricted to a period of up to 12 months per episode, subject to local absence management, return to work and rehabilitation policies. 4

5 Existing definition of injury 1 remains and covers any injuries, diseases or conditions that are wholly or mainly attributable to that NHS employment in which the injury occurs. Any monies, in the form of contributory state benefits, received for loss of earnings will be offset. All other benefits received by staff should be ignored. The new injury allowance will be subject to National Insurance contributions and tax but will not be pensionable. To ensure the policy intention of ensuring the allowance is non pensionable it may by necessary to make an amendment to the current definition of pensionable pay to make reference to the allowance in the listed exclusions. 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 dispute/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 of the NHS terms and conditions handbook) Pay should be protected for those retaining employment after a work related injury or illness on a lower band or fewer hours resulting in a reduction of pensionable pay. The review partners recommend that pay protection provisions mirror existing arrangements for protection in circumstances of organisational change, as per Annex O of the terms and conditions handbook, which require local agreement. The review partners recognise that there are different approaches to pay protection currently adopted by England, Wales and Scotland. Wales and Scotland have national agreements in place, with England adopting a locally agreed approach. Recommendation 4 Implementation timetable An implementation date of 31 March 2013 has been agreed. Recommendation 5 Development of supporting guidance To ensure transparency and consistency of application the review partners recommend that the new arrangements be supplemented by supporting guidance for both employers and employees, including: employer (including occupational health services) and employee roles and responsibilities the claim process, including eligibility, definition of injury, dispute resolution interaction with other forms of compensation and DWP benefits 1 As defined in The National Health Service (Injury Benefits) Regulations

6 integrating the new arrangements with existing managing absence policies and Annex Z, the recommendations of the Boorman review and improving the health and wellbeing of your workplace. 6 Costing the new arrangements In England and Wales fewer than 300 new PIB claims are made per annum, not all of which are successful this amounts to claims from less than 0.02% of workforce every year. PIB awards, made before 1997, are centrally funded by the Department of Health. As the awards are made for life, (and actually increase in individual cases when the recipient reaches state retirement age and other offsetting benefits reduce) costs continue at about 48m p.a. for approximately 8,000 cases. The costs of PIB awards made after 1997 are recharged to employers with an accumulated total now standing at just under 17 million for approximately 2,100 cases (both costs correct as at 1 October 2010). No robust figures are available on the number of staff accessing TIA and associated costs. For Scotland only limited data was available but recently shared information from the Scottish Public Pension Agency (SPPA) shows that approximately 30 PIB and 100 TIA claims are made each year. Of those, successful claims for PIB amount to 4.6m p.a. which is recharged to employers, as at March 2010, and includes ongoing benefits in payment and successful new claims. The average cost of successful TIA claims recharged to employers over a 3 year period (April 2007 March 2010) is approximately 400k p.a. Should changes to the existing arrangements be introduced in line with the review partner recommendations employers will continue to fund the cost of benefits for existing beneficiaries and any late claims made under the sunset and exception clauses. These on going costs will reduce over time but gradually, due to increases in longevity and the increased costs associated with the reduction of other offsetting benefits (primarily DWP benefits) noted above. For any injuries occurring after the proposed date of change employers will only be responsible for meeting costs associated with the new injury allowance, which is set at a benefit level equivalent to the existing TIA but restricted to a period of up to 12 months. The review partners are aware that, as the new provision is also limited to the period of employment contract only, employer costs going forward are significantly reduced. 7 Future monitoring requirements Following the introduction of any new arrangements employers will need to collect appropriate monitoring data to ensure that the nature of work related injuries and diseases are accurately captured and payments of the new injury allowance paid equitably. This will 6

7 allow the appropriate and timely payment of any necessary allowances to staff and enable employers to undertake appropriate equality assessments locally. NHS Injury Benefit Review Partners November