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Infected Blood Compensation Scheme Regulations 2024

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Infected Blood Compensation Scheme Regulations 2024
Statutory Instrument
CitationSI 2024/872
Introduced byNick Thomas-Symonds, Minister for the Cabinet Office
Territorial extent UK-wide
Dates
Made22 August 2024
Laid before Parliament23 August 2024
Commencement23 August 2024 (2024-08-23)
Other legislation
Made underVictims and Prisoners Act 2024
Status: Current legislation
Text of statute as originally enacted

The Infected Blood Compensation Scheme Regulations 2024 (SI 2024/872) is a statutory instrument (SI) that was laid before Parliament on 23 August 2024 to make provision for a compensation payment scheme for victims of the infected blood scandal as stipulated in the Victims and Prisoners Act 2024.[1][2]

The regulations enact a compensation scheme to make payments via the "core route" to both the living infected and deceased infected. Eligibility is defined within Part 3 of the regulations as someone living or deceased "who has received NHS treatment, or armed forces treatment overseas, with blood, blood products or tissue known to be capable of transmitting HIV, hepatitis C, or hepatitis B".[3]

A second phase of regulations will be made to enhance this statutory instrument and will expand the scope to cover eligible affected applicants.[3] The next tranche will also deal with legislating for the supplementary route in relation to the claims of the infected and affected communities, depending on their circumstances.[4][5]

Core route

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The core route provides for set tariffs with predefined severity levels in relation to infection with Hepatitis B and Hepatitis C.[6] This route offers the option of receiving compensation as an overall lump sum, or as monthly payments, with further options as to the frequency of the payments over set periods of either 5, 10 or 25 years. This option will attract CPI uprating as a way of offsetting any disadvantage caused by choosing to take the compensation as periodic payments.[7]

Part 4, Chapter 2, makes provision for the following series of awards under the core route:[8][9]

  • Injury impact award (under ¶14)
  • Social impact award (under ¶15)
  • Autonomy award (under ¶16)
  • Basic financial loss award for eligible infected persons (under ¶17)
  • Additional financial loss award (under ¶18-20)
  • Care award (under ¶21)

In order for an eligible infected person to receive their award under the core route, the IBCA[a] must first establish that the applicant is no longer registered with an Infected Blood Support Scheme. The applicant's IBSS[b] beneficiary status must first be relinquished in order for them to receive their compensation award under this route.[12]

IBSS route

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For applicants already registered with an Infected Blood Support Scheme (IBSS), Part 5 of the regulations makes provision for an alternative compensation pathway, the "IBSS route".[13] This allows beneficiaries the option to retain (for their lifetime) any regular support payments which they were receiving under the IBSS entities and from 31 March 2025, these payments will undergo a status change from the historical ex gratia[c] nature to the support payments being taken into account as compensation payments under the new IBCA scheme. An applicant's future financial loss and future care awards will be combined and assessed to determine the total compensation from these future-calculated components, which together will be used to fund the regular support payments from 1 April 2025.[3]

Under the IBSS route, the IBCA can make the following awards according to Part 5, paragraph 23:[3]

  • Injury impact award
  • Social impact award
  • Autonomy award
  • Past financial loss award
  • Past care award
  • Support scheme top-up award, if required (determined by regulation 27)

As with the core route, the compensation awards under paragraph 5 can be taken as periodic payments spread over prescribed terms of either 5, 10 or 25 years.[13]

Awards to estates

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Compensation payments can be claimed by the personal representative of an eligible infected person who is deceased.[16] Under Part 3, section 7 (1), a person is deemed an eligible infected person where paragraph (2), (6), (7) or (8) (of section 7) applies, whether or not that person is deceased.[13]

For the IBCA to process an estate claim, the personal representative must provide documented evidence that under the law amounts to sufficient proof in the form of the following:[3]

Sadly much of the compensation will be awarded in respect of people who have already died because of their infection. I was told that there has been considerable anxiety about the difficulties arising out of making awards to their estates.

—Sir Robert Francis KC, 16 August 2024[17]

The evidential burden falls on the applicant[13] and the legal standard of proof in relation to any decision under the regulations is the balance of probabilities.[18]

Where an infected person, prior to their death, was a beneficiary of one of the Infected Blood Support Schemes, or one of the Alliance House organisations, their estate will be deemed eligible for compensation through the scheme, but the application may require the provision of further information.[16]

Under the core route, the representative of an estate can claim the following:[19]

  • Injury impact award (depending on infection and severity level)
  • Social impact award (depending on infection and severity level)
  • Autonomy award (depending on infection and severity level)
  • Past financial loss award (calculated from date of infection to date of death)[16][20]
  • Basic financial loss award (flat-rate for miscellaneous costs)[19]
  • Past care award (at the current commercial rate minus 25%)[20][21]

Under Part 4, section 8, (4), the overall estate award must be taken as a lump sum since the periodic payment option is only available to living infected applicants.[22]

Autonomy award

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The scheme introduces what the Cabinet Office referred to as a novel award.[23] It is intended to afford an element of compensation for the distress suffered as a result of interference with the personal autonomy and private life of the infected.[24][25]

"It was unethical and wrong that people were not told that they were being tested for HIV or for hepatitis. The failure to tell them was a denial of their personal autonomy."

—The Report, Infected Blood Inquiry, 20 May 2024[26]

The regulations, at 16 (1), cite three specific examples:[27]

  1. the loss of marriage or partnership prospects
  2. the loss of the opportunity to have children
  3. the impact on that person of attacks on that person's home as a consequence of the infection

The background of this category of claim emanates from the Sir Robert Francis KC Recommendations for a Framework which frequently mentions interference in the autonomy of the infected through lack of informed consent or informed choice around the time just prior to infection.[24] It was also borne out of the work of the Infected Blood Inquiry which identified, inter alia, a pattern of a lack of information about the risks of treatment, patients not being provided with sufficient information about their diagnosis, failure by healthcare professionals to be candid with patients and obtain informed consent, and patients having their blood taken or "being tested upon" without them being made aware.[28]

Reception

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One campaign group welcomed the regulations as a "massive step forward" with what they felt was a scheme that appeared to be largely "fair overall".[29] The UK Haemophilia Society cautiously welcomed the regulations but expressed concern that the compensation payment levels did not fully reflect the true impact of the financial loss and injury suffered by certain victims.[18] The Hepatitis C Trust welcomed the legislation but admitted to having reservations over the disparities between the infection bandings. Susan Lee, a solicitor for the Trust, said: "We welcome this legislation establishing, at long last, the Infected Blood Compensation Authority ... We are still examining the information released today and awaiting further detail, but remain concerned by the disparities in proposed compensation for people who were given hepatitis C, hepatitis B and HIV."[29]

Legislative scrutiny

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The regulations and accompanying explanatory memorandum have been criticised by the House of Lords select committee, the Secondary Legislation Scrutiny Committee (SLSC). In their Second Report, published 5 September 2024, they draw instrument 2024/872 to the special attention of the House due to the explanatory memorandum being "of poor quality, using overly technical language and lacking basic information about the policy".[30]

The SLSC focused on five aspects all lacking further detail:[30]

  • the application process for the infected including commencement date
  • the length of time applications will take to process
  • when awards will be paid for claims which have been approved
  • how applications will be adjudicated
  • further detail on impact, particularly, the budgeted aggregate amount and number of potential applicants

The committee went as far as to express concern over whether the Cabinet Office was "withholding information on the impact and cost of the Regulations".[31]

SI 2024/872 was subject to the made affirmative procedure and requires positive approval of Parliament by 23 October 2024.[32] The government tabled a motion to approve the instrument on 3 September 2024.[33] Following debate in both houses of Parliament,[32] the regulations were approved on 21 October 2024 in the House of Lords[34] and on 23 October 2024 the House of Commons.[35]

Notes

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  1. ^ Part 3 of the Victims and Prisoners Act 2024 establishes a body corporate called the Infected Blood Compensation Authority, "the IBCA".[10]
  2. ^ Infected Blood Support Schemes (IBSS) replaced the previous ex gratia financial assistance schemes also known as the "Alliance House Organisations".[3] Each administration has their own scheme, EIBSS (England), WIBSS (Wales), SIBSS (Scotland) and IBPS NI (Northern Ireland). Each support scheme also administers the interim compensation payments.[11]
  3. ^ Historically, the Infected Blood Support Schemes have provided support to people registered with the various schemes on an ex gratia basis.[14][15]

References

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  1. ^ "Establishing the Infected Blood Compensation Scheme in Regulations". GOV.UK. Retrieved 29 August 2024. Today, the Government has laid regulations to establish the Infected Blood Compensation Scheme, as required by the Victims and Prisoners Act 2024.
  2. ^ Mackintosh, Thomas (24 August 2024). "Infected blood authority can now pay patients, minister says". BBC News. Retrieved 29 August 2024. The Cabinet Office published a lengthy policy paper on Friday detailing the tariff-based scheme and laid secondary legislation setting out the criteria for the first payouts.
  3. ^ a b c d e f "Explanatory Memorandum to the Infected Blood Compensation Scheme Regulations 2024" (PDF). legislation.gov.uk. 2024 No. 872. Retrieved 30 August 2024.
  4. ^ "Government Update on the Infected Blood Compensation Scheme: 16 August 2024". GOV.UK. Retrieved 30 August 2024. ...the second phase of regulations will be laid to adapt the 'core' route for the affected community, as well as create an infected and affected 'supplementary' route where claimants can personalise their claim.
  5. ^ Nick Thomas-Symonds, The Paymaster General and Minister for the Cabinet Office (2 September 2024). "Infected Blood Compensation Scheme". Parliamentary Debates (Hansard). Vol. 753. Parliament of the United Kingdom: Commons. col. 77. The Government are clear that although laying the regulations relating to infected individuals taking the core route is an essential step to delivering justice, the work is not finished. A second set of regulations will provide for other elements of the compensation scheme, including compensation payments to affected individuals and for claims under the supplementary route.
  6. ^ "Infected Blood Compensation Scheme - Engagement Explainer" (PDF). haemophilia.org.uk. Cabinet Office. June 2024. Retrieved 1 September 2024. The Scheme proposal has been designed using a tariff-based framework. This framework approach was recommended by Sir Robert Francis' Compensation Framework Study and the Inquiry's Second Interim Report.
  7. ^ "Infected Blood Compensation Scheme overview: Living infected persons". GOV.UK. Retrieved 1 September 2024. Compensation will be payable through a lump sum or series of regular payments (instalments) over 5, 10 or 25 years ... Compensation received through instalments will be uplifted each year in line with CPI.
  8. ^ Durrant, Will (24 August 2024). "Ministers give compensation authority the power to make infected blood payments". Evening Standard. Retrieved 30 August 2024. The overall payment will be made up of a series of awards, including an injury impact award which "compensates for past and future physical and mental injury and emotional distress and injury to feelings", a social impact award for stigma and social isolation, and the autonomy award which takes into account how infected blood may have affected patients' private and family life.
  9. ^ Durrant, Will (24 August 2024). "Ministers give compensation authority the power to make infected blood payments". The Independent. Retrieved 30 August 2024. The Government has also confirmed financial loss and care cost compensation awards.
  10. ^ "Victims and Prisoners Act 2024". legislation.gov.uk. 24 May 2024. Part 3. Retrieved 31 August 2024.
  11. ^ "Infected Blood Support Schemes | Infected Blood Inquiry". www.infectedbloodinquiry.org.uk. Retrieved 31 August 2024.
  12. ^ "The Infected Blood Compensation Scheme Regulations 2024: Section 22", legislation.gov.uk, The National Archives, 23 August 2024, SI 2024/872 (s. 22), retrieved 1 September 2024
  13. ^ a b c d "The Infected Blood Compensation Scheme Regulations 2024". legislation.gov.uk. 23 August 2024. 2024 No. 872 (Part 5). Retrieved 31 August 2024.
  14. ^ R (March) v Secretary of State for Health, 765, 3 (EWHC 2010) ("For many years, however, successive governments have provided funds on an ex gratia basis for distribution via three special purpose mechanisms: the Macfarlane Trust, the Eileen Trust and the Skipton Fund.").
  15. ^ "Information about the Infected Blood Compensation Authority (IBCA)". www.nhsbsa.nhs.uk. Retrieved 1 September 2024 – via NHSBSA. Payments will continue to be paid, at the same level, via the Infected Blood Support Schemes (IBSS) and on an ex-gratia basis until 31 March 2025. This means that any payments received before and up to 31 March 2025 will not be deducted from compensation awarded through the new Scheme. After this point, from 1 April 2025, people who receive IBSS payments will continue to receive payments until such time that their case is assessed under the new Scheme by the Infected Blood Compensation Authority (IBCA).
  16. ^ a b c "Infected Blood Compensation Scheme overview: Estates of a deceased infected person". Cabinet Office. 23 August 2024. Retrieved 1 September 2024.
  17. ^ "Statement from Sir Robert Francis on his recommendations". GOV.UK. Infected Blood Compensation Authority. 16 August 2024. Retrieved 1 September 2024.
  18. ^ a b Courtney, Jeff (23 August 2024). "Government lays Detailed Regulations on Core Route of Infected Blood Compensation Scheme". The Haemophilia Society. Retrieved 30 August 2024. We still have concerns that the compensation does not fully capture the full extent of injury and loss for some people.
  19. ^ a b "Infected Blood Compensation Scheme Summary". GOV.UK. 23 August 2024. Retrieved 2 September 2024. In addition to anticipated loss of earnings, a flat rate of £12,500 will be paid to all infected people (or their estate) to cover miscellaneous expenses including travel to appointments, extra cost of insurance etc.
  20. ^ a b "Infected Blood Compensation Scheme - Engagement Explainer" (PDF). Cabinet Office – via The Haemophilia Society. Where an infected person is deceased: an award for past financial loss (i.e. from the point of infection to death) is paid to the estate of the infected person... We have therefore added past care award values which reflect commercial rates deducted 25%...
  21. ^ "Infected Blood Inquiry Response Expert Group Final Report". GOV.UK. Infected Blood Compensation Authority. 16 August 2024. Retrieved 2 September 2024. Using current rates even for past care is a reasonable way to adjust for inflation. However, it is likely that care will in the past have been provided by family members or friends rather than by commercial agencies. To reflect this, the care award for past care is calculated on the basis that tax, national insurance and other costs will not have been paid. As noted by the Compensation Study paragraph 9.63 the discount of 25% that we have applied to is consistent with court practice.
  22. ^ "Compensation payments – core route". legislation.gov.uk. 23 August 2024. Part 4. Retrieved 2 September 2024. Where P is not deceased, the relevant person may make an election (a "periodic payment election") that the compensation payment is to be paid as periodic payments, and, where the relevant person so elects, they must decide the term over which the periodic payments are to be paid, which may only be a fixed term of 5, 10 or 25 years.
  23. ^ "Papers for Meeting with Sir Robert Francis" (PDF). haemophilia.scot. Cabinet Office. 18 June 2024. p. 13. Retrieved 6 September 2024. The Scheme's Autonomy award is a novel award. Though a direct comparison cannot be drawn, the award levels for the Autonomy award were informed following consideration of similar compensation awards (e.g. Windrush Impact on Life), statutory awards for injury to feelings (Vento guidelines) and previous cases in which the courts have considered it appropriate to increase the award of damages due to the level of distress caused.
  24. ^ a b Francis, KC, Sir Robert (June 2022). "Compensation and Redress for the Victims of Infected Blood - Recommendations for a Framework" (PDF). infectedbloodinquiry.org.uk. pp. 35–36. Recommendations 7-8. Retrieved 6 September 2024.
  25. ^ "Infected Blood Compensation Authority - Recommendations of Sir Robert Francis KC to the Government on the proposals for a compensation scheme (HTML)". GOV.UK. 16 August 2024. Retrieved 6 September 2024. The autonomy award is intended as a novel award to reflect the lack of consent for treatment, the failure to inform patients of the risks, the distress of having these diseases and the impact on family and social life, including the loss of the chance to have children.
  26. ^ "The Report - Volume 1" (PDF). infectedbloodinquiry.org. 20 May 2024. HC 569-I. Retrieved 6 September 2024.
  27. ^ "The Infected Blood Compensation Scheme Regulations 2024: Section 16", legislation.gov.uk, The National Archives, 23 August 2024, SI 2024/872 (s. 16), retrieved 6 September 2024
  28. ^ "The Report - Volume 1" (PDF). infectedbloodinquiry.org. 20 May 2024. p. 84. HC 569-I. Retrieved 6 September 2024. The third is the profoundly unethical lack of respect for individual patient autonomy ... One of the consequences of people not being told that tests were being undertaken, quite apart from the affront to their personal autonomy, was that the results of such testing then came out of the blue.
  29. ^ a b Ungoed-Thomas, Jon (24 August 2024). "Victims of UK's infected blood scandal to start receiving payouts by end of year". The Observer. ISSN 0029-7712. Retrieved 30 August 2024. Jason Evans, founder of the Factor 8 campaign group, whose father Jonathan died in October 1993 after contracting HIV and hepatitis C from contaminated blood, described the scheme as a "massive step forward" ..."No amount of compensation will ever replace those who died, but this scheme seems fair overall." ... The Hepatitis C Trust has raised concerns over the disparities in proposed compensation for sufferers of different diseases.
  30. ^ a b "Second Report". publications.parliament.uk. Secondary Legislation Scrutiny Committee. 5 September 2024. HL Paper 4. Retrieved 8 September 2024. The compensation scheme is complex, and we found the Explanatory Memorandum (EM) to be of poor quality, using overly technical language and lacking basic information about the policy, such as: how those infected can apply and from when; how long claims will take to be processed; when successful applicants can expect payments to be made; the basis on which each claim will be assessed; and impact information including on overall costs and the number of people eligible for payments ... The lack of basic information also makes it difficult for Parliament and the public to scrutinise the Regulations properly.
  31. ^ Secondary Legislation Scrutiny Committee (5 September 2024). "49". 2nd Report of Session 2024–25 (PDF) (Report). House of Lords. p. 12. HL Paper 4. Retrieved 8 September 2024. We are concerned that the Cabinet Office is withholding information on the impact and cost of the Regulations until after the time for Parliamentary scrutiny has passed, which is unacceptable and circumvents proper scrutiny of the Regulations. We have not been given a reason why the costs could not be published ahead of the budget. The House may wish to pursue the issue of costs further.
  32. ^ a b "Timeline - Made affirmative". statutoryinstruments.parliament.uk. Retrieved 22 September 2024. Scheduled for 23 October 2024: Approval period ends.
  33. ^ "Order Paper for Tuesday 03 September 2024". commonsbusiness.parliament.uk. 3 September 2024. Retrieved 22 September 2024. That the Infected Blood Compensation Scheme Regulations 2024, (SI, 2024, No. 872), dated 22 August 2024, a copy of which was laid before this House on 23 August, be approved.
  34. ^ Lord Ponsonby of Shulbrede, The Parliamentary Under-Secretary of State, Ministry of Justice (21 October 2024). "Infected Blood Compensation Scheme Regulations 2024". Parliamentary Debates (Hansard). Vol. 840. Parliament of the United Kingdom: Lords. col. 480.
  35. ^ Nick Thomas-Symonds, The Paymaster General and Minister for the Cabinet Office (23 October 2024). "Infected Blood Compensation Scheme". Parliamentary Debates (Hansard). Vol. 755. Parliament of the United Kingdom: Commons. col. 317.
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