This version of this provision is prospective.
There are currently no known outstanding effects for the Social Security (Amendment) (Scotland) Act 2025, Section 19.
Prospective
(1)The 2018 Act is modified as follows.
(2)After section 94 insert—
(1)This Part applies where—
(a)a person is to make a payment (whether on that person’s own behalf or not) to or in respect of an individual in consequence of any accident, injury or disease suffered by that individual,
(b)relevant assistance has been, or is likely to be, received by or for that individual during the relevant period in respect of the accident, injury or disease, and
(c)the relevant period start date occurs on or after the day on which section 19(2) of the Social Security (Amendment) (Scotland) Act 2025 comes into force.
(2)The reference in subsection (1)(a) to a payment to be made in consequence of any accident, injury or disease is to a payment to be made—
(a)by or on behalf of a person who is, or is alleged to be, liable to any extent in respect of the accident, injury or disease,
(b)under a compensation scheme for motor accidents, or
(c)under the Diffuse Mesothelioma Payment Scheme (established under the Mesothelioma Act 2014),
but does not include a payment mentioned in Part 1 of schedule 12.
(3)The Scottish Ministers may by regulations modify Part 1 of schedule 12 so as to—
(a)add a payment,
(b)remove a payment,
(c)vary the description of a payment.
(4)The reference in subsection (1)(a) to a payment to be made in consequence of any accident, injury or disease includes a payment to be made—
(a)voluntarily, or under a court order or an agreement, or otherwise,
(b)in Scotland or elsewhere.
(5)The Scottish Ministers may by regulations make provision about the recovery of the amounts of payments made under schemes providing for compensation in the form of a lump sum payment to or in respect of an individual in consequence of any accident, injury or disease suffered by that individual, where a compensation payment in respect of the same accident, injury or disease has been paid to or in respect of that individual.
(6)Regulations under subsection (5)—
(a)must specify the lump sum payments to which they apply,
(b)may in particular—
(i)modify the heads of compensation set out in column 1 of the table in Part 2 of schedule 12 as they apply to the recovery of such payments,
(ii)make provision for the recovery of the amount of such a payment made to or in respect of another person as a result of that other person having a prescribed relationship with the individual who suffered the accident, injury or disease,
(iii)make provision for the recovery of the amount of such a payment from a compensation payment (including for the recovery of an amount which reduces the compensation payment to nil),
(iv)make provision about certificates of recoverable assistance in relation to such payments,
(v)apply any provision of this Part to such payments, with or without modifications.
(1)In this Part—
“certificate of recoverable assistance” is to be interpreted in accordance with section 94D,
“compensation payment” means a payment mentioned in section 94A(1)(a),
“compensation scheme for motor accidents” means a scheme or arrangement under which funds are available for the payment of compensation in respect of motor accidents caused, or alleged to have been caused, by uninsured or unidentified persons,
“compensator” means the person making the compensation payment (and includes the scheme administrator of the Diffuse Mesothelioma Payment Scheme),
“injured person” means the individual who suffered the accident, injury or disease in respect of which the compensation payment is made,
“payment” means payment in money or money’s worth, and related expressions are to be construed accordingly,
“prescribed” means prescribed by regulations made by the Scottish Ministers,
“recoverable assistance” means relevant assistance which has been, or is likely to be, received as mentioned in section 94A(1)(b),
“relevant assistance” means—
“relevant period” means the period beginning on the relevant period start date and ending on the relevant period end date,
“relevant period start date” means—
in the case of accident or injury, the day on which the accident or injury in question occurred,
in the case of disease, the day on which the injured person first claimed relevant assistance in consequence of the disease,
“relevant period end date” means the earlier of—
the day which is five years after the relevant period start date, and
the day on which—
a person makes a compensation payment in final discharge of a claim made by or in respect of the injured person and arising out of the accident, injury or disease, or
where an agreement is made under which an earlier compensation payment is treated as having been made in final discharge of any such claim, that earlier compensation payment was made,
“scheme administrator”, in relation to the Diffuse Mesothelioma Payment Scheme, has the meaning given by section 18 of the Mesothelioma Act 2014,
“short-term assistance” means assistance given under or by virtue of section 36.
(2)The Scottish Ministers may by regulations modify—
(a)the definition of “relevant assistance”,
(b)the table in Part 2 of schedule 12.
(1)Before making a compensation payment, a compensator must apply to the Scottish Ministers for a certificate of recoverable assistance.
(2)An application under subsection (1) must—
(a)be in such form as the Scottish Ministers require,
(b)include such information about the injured person and the accident, injury or disease as the Scottish Ministers require,
(c)specify the name and address of the person to whom the certificate is to be issued.
(3)The Scottish Ministers must publicise any requirements for the time being set under subsection (2).
(4)Where a compensator makes an application for a certificate which complies with the requirements of subsection (2), the Scottish Ministers must—
(a)send the compensator an acknowledgement of receipt of the application,
(b)subject to subsection (8), issue the certificate to the person specified in the application before the end of the prescribed period (or, if no such period is prescribed, 4 weeks) beginning with the day after the day on which the application is received by the Scottish Ministers.
(5)The certificate remains in force until the date specified in it as the date it ceases to be in force.
(6)The compensator may apply for a further certificate from time to time.
(7)Where a certificate ceases to be in force, the Scottish Ministers may issue a further certificate without an application for one being made.
(8)Where the compensator applies for a further certificate while a certificate (“the existing certificate”) remains in force, the Scottish Ministers must issue the further certificate before the end of the prescribed period (or, if no such period is prescribed, 4 weeks) beginning with the day after the day on which the existing certificate ceases to be in force.
(9)The Scottish Ministers may by regulations provide for the day on which an application for a certificate is to be treated as received.
(1)A certificate of recoverable assistance is a certificate which specifies, for each form of recoverable assistance, the amount of assistance which has been, or is likely to be, received during the relevant period.
(2)If a certificate of recoverable assistance is issued after the relevant period end date, it must specify the amount of assistance which has been received during the relevant period.
(3)If a certificate of recoverable assistance is issued before the relevant period end date, it must specify—
(a)the amount of assistance which has been received from the relevant period start date until the day on which the application for the certificate was received by the Scottish Ministers,
(b)the rate and period for which, and the intervals at which, assistance is likely to be received from the day on which the application for the certificate was received by the Scottish Ministers until the relevant period end date.
(4)If any of the actual amounts, rates or periods required to be specified in a certificate are not available, the certificate may specify reasonable estimates of those amounts, rates or periods.
(5)Where the Scottish Ministers issue a certificate, they must provide the information contained in the certificate to—
(a)the individual who appears to them to be the injured person,
(b)any person who they think will receive a compensation payment in respect of the injured person.
(6)The Scottish Ministers must, on request from a person to whom a certificate is issued or to whom information is provided under subsection (5), provide the person with details of the manner in which any amount, rate or period specified in the certificate has been determined.
(7)The Scottish Ministers must fulfil their duty under subsections (5) and (6) in a way that leaves the person with a record of the information which the person can show to, or otherwise share with, others.
(1)A compensator is liable to pay the Scottish Ministers an amount equal to the amount of recoverable assistance.
(2)The liability referred to in subsection (1) arises immediately before the compensation payment (or, if there is more than one, the first of them) is made.
(3)The compensator must pay the amount referred to in subsection (1) before the end of the period of 14 days beginning with the later of—
(a)the day on which the compensation payment (or, if there is more than one, the first of them) is made,
(b)the day on which the first certificate of recoverable assistance in respect of that recoverable assistance is issued under section 94C.
(1)This section applies where a compensator has made a compensation payment but—
(a)has not applied for a certificate of recoverable assistance, or
(b)has not made any payment due to the Scottish Ministers under section 94E within the period mentioned in section 94E(3).
(2)Where the Scottish Ministers are aware that this section applies, they must issue the compensator with—
(a)either—
(i)a certificate of recoverable assistance, if none has been issued, or
(ii)a copy of the certificate of recoverable assistance or, if more than one has been issued, the most recent one, and
(b)a demand that payment of any amount due under section 94E be made immediately.
(3)The Scottish Ministers may recover the amount for which a demand for payment is made under subsection (2)(b) from the compensator in accordance with subsection (4).
(4)An amount recoverable under subsection (3) may be enforced in the same manner as an extract registered decree arbitral bearing a warrant for execution issued by the sheriff for any sheriffdom in Scotland.
(5)A document bearing a certificate which—
(a)is signed by a person authorised to do so by the Scottish Ministers, and
(b)states that the document, apart from the certificate, is a record of the amount recoverable under subsection (3),
is conclusive evidence that the amount stated is recoverable.
(6)A certificate under subsection (5) purporting to be signed by a person authorised to do so by the Scottish Ministers is to be treated as so signed unless the contrary is proved.
(1)This section applies where a compensator has paid a sum to the Scottish Ministers which purports to be in satisfaction of liability under section 94E but which the compensator was not liable to pay.
(2)The Scottish Ministers are liable to pay the compensator the difference between the amount which has been paid and the amount which should have been paid.
(3)The Scottish Ministers must—
(a)send to the compensator and the person to whom the compensation payment was made a statement showing—
(i)the total amount which has been paid to the Scottish Ministers,
(ii)the amount which should have been paid,
(iii)the difference between these two amounts, which will be paid to the compensator by the Scottish Ministers, and
(b)issue a new certificate of recoverable assistance.
(4)Section 94D applies in relation to a new certificate issued under this section as it applies to the original certificate.
(5)Where the amount of the compensation payment made by the compensator was reduced under section 94J or 94K, the compensator must—
(a)recalculate the amount of the compensation payment under section 94J or (as the case may be) 94K to take account of the new certificate of recoverable assistance, and
(b)if that recalculation results in an increase to the compensation payment, pay the additional amount to the person to whom the compensation payment was made.
(6)The compensator is only liable to pay the amount referred to in subsection (5)(b) once the compensator has received payment from the Scottish Ministers.
(7)This section does not apply in a case where section 94P (payments following reconsideration or appeal) applies.
(1)If a compensation payment is made in a case where—
(a)a person is liable to any extent in respect of the accident, injury or disease, and
(b)the liability is covered to any extent by a policy of insurance,
the policy is also to be treated as covering any liability of that person under section 94E to the same extent as referred to in paragraph (b).
(2)Liability imposed on the insurer by subsection (1) cannot be excluded or restricted.
(3)For the purposes of subsection (2), excluding or restricting liability includes—
(a)making the liability or its enforcement subject to restrictive or onerous conditions,
(b)excluding or restricting any right or remedy in respect of the liability, or subjecting a person to any prejudice in consequence of that person pursuing any such right or remedy,
(c)excluding or restricting rules of evidence or procedure.
(4)The Scottish Ministers may by regulations limit the liability imposed on the insurer under subsection (1).
(5)The reference in subsection (1)(b) to a policy of insurance—
(a)includes a policy of insurance issued at any time,
(b)includes a contract of insurance made at any time.
(1)A compensation payment is to be disregarded for the purposes of sections 94E, 94J and 94K if, when it is made—
(a)the compensator has—
(i)made an application for a certificate of recoverable assistance which complies with the requirements of section 94C(2), and
(ii)received acknowledgement of the receipt of the application under section 94C(4)(a), and
(b)the Scottish Ministers have not issued the certificate of recoverable assistance as required by subsection (4)(b) or (8) of section 94C.
(2)Where a compensation payment is to be disregarded under subsection (1) but the compensator nevertheless makes a payment to the Scottish Ministers for which the compensator would otherwise be liable under section 94E—
(a)the disregard in subsection (1) ceases to apply to the compensation payment,
(b)the Scottish Ministers are not liable to repay the amount of the payment to the compensator under section 94G or otherwise.
(1)This section applies in a case where, in relation to any head of compensation listed in column 1 of the table in Part 2 of schedule 12—
(a)any of the compensation payment is attributable to that head, and
(b)any recoverable assistance is shown against that head in column 2 of the table in Part 2 of schedule 12.
(2)The compensator must make the calculation mentioned in subsection (4).
(3)Any claim of a person to receive the compensation payment is to be treated for all purposes as discharged if—
(a)the person is paid the amount (if any) of the compensation payment calculated in accordance with this section, or
(b)in a case in which the amount of the compensation payment so calculated is nil, the person is given a statement saying so by the person who would (apart from this section) have paid the gross amount of the compensation payment.
(4)For each head of compensation listed in column 1 of the table in Part 2 of schedule 12, so much of the gross amount of the compensation payment as is attributable to that head is to be reduced (to nil, if necessary) by deducting the amount of the recoverable assistance or (as the case may be) the aggregate amount of the recoverable assistance shown against it in column 2 of the table.
(5)Subsection (4) is to have effect as if a requirement to reduce a payment by deducting an amount which exceeds that payment were a requirement to reduce that payment to nil.
(6)The amount of the compensation payment calculated in accordance with this section is the gross amount of the compensation payment less the sum of the reductions made under subsection (4) (and, accordingly, may be nil).
(7)For the purposes of this Part—
(a)the gross amount of the compensation payment is the amount of the compensation ignoring the application of this section or section 94K, and
(b)the amount of any recoverable assistance is the amount specified in the certificate of recoverable assistance.
(1)This section applies instead of subsections (1) to (6) of section 94J where the compensation payment is a payment under the Diffuse Mesothelioma Payment Scheme.
(2)The scheme administrator of the Diffuse Mesothelioma Payment Scheme must make the calculation mentioned in subsection (3).
(3)The gross amount of the compensation payment—
(a)is to be reduced by the amount of the recoverable assistance, and
(b)accordingly, is to be reduced to nil in any case where the amount of the recoverable assistance is equal to or greater than the gross amount of the compensation payment.
(4)Any claim of a person to receive the compensation payment is to be treated for all purposes as discharged if—
(a)the person is paid the gross amount of the compensation payment less the amount of the recoverable assistance, or
(b)in a case in which the amount of the recoverable assistance is equal to or greater than the gross amount of the compensation payment, the person is given a statement by the scheme administrator stating that the compensation payment is reduced to nil.
(1)A person who makes a compensation payment calculated in accordance with section 94J or 94K must give a statement to the person to whom the payment is made setting out—
(a)that the payment has been so calculated, and
(b)the date on which the payment is made.
(2)If the amount of a compensation payment calculated in accordance with section 94J or 94K is nil, a person giving a statement saying so is to be treated for the purposes of this Act as making a compensation payment on the day on which the person gives the statement.
(3)Where a person—
(a)makes a compensation payment calculated in accordance with section 94J or 94K, or
(b)if the amount of the compensation payment so calculated is nil, gives a statement saying so,
the person is to be treated, for the purpose of determining any rights and liabilities in respect of contribution or indemnity, as having paid the gross amount of the compensation payment.
(4)A person who makes a compensation payment must fulfil the duty under subsection (1) in a way that leaves the person to whom the payment is made with a record of the information which that person can show to, or otherwise share with, others.
(5)The amount of any recoverable assistance is to be disregarded by—
(a)a compensator in calculating the gross amount of the compensation payment, and
(b)a court in making any assessment of damages in respect of the accident, injury or disease giving rise to the compensation payment.
(1)A certificate of recoverable assistance must be reviewed by the Scottish Ministers at the request of a person mentioned in subsection (2) provided that—
(a)the compensation payment has not been made,
(b)the compensator has not made a payment to the Scottish Ministers under section 94E, and
(c)the requirements prescribed in regulations made under subsection (5) are satisfied.
(2)The persons referred to in subsection (1) are—
(a)the compensator who applied for the certificate,
(b)where the compensation payment would be reduced under section 94J or 94K—
(i)the injured person,
(ii)another person who would receive the compensation payment in respect of the injured person.
(3)But the scheme administrator of the Diffuse Mesothelioma Payment Scheme may not apply for a review under this section.
(4)A certificate of recoverable assistance may be reviewed by the Scottish Ministers on their own initiative provided that—
(a)the compensation payment has not been made,
(b)the compensator has not made a payment to the Scottish Ministers under section 94E, and
(c)the requirements prescribed in regulations made under subsection (5) are satisfied.
(5)The Scottish Ministers are to make regulations prescribing—
(a)the period within which a request for a review under this section may be made,
(b)the cases and circumstances in which such a request may be made,
(c)the cases and circumstances in which the Scottish Ministers may undertake a review on their own initiative.
(6)If the Scottish Ministers decide that something purporting to be a request for a review is not valid because the requirements prescribed in regulations made under subsection (5) are not satisfied, they must inform the person who purported to make the request for a review of—
(a)the decision,
(b)the reasons for it.
(7)Following a review under this section the Scottish Ministers must—
(a)either—
(i)confirm the certificate of recoverable assistance,
(ii)subject to subsection (8), issue a new certificate containing such variations as they consider appropriate, or
(iii)revoke the certificate, and
(b)give the persons mentioned in paragraphs (a) and (b) of subsection (2) notice of—
(i)the result of the review,
(ii)the reason for that result.
(8)The Scottish Ministers may not vary the certificate so as to increase the total amount of recoverable assistance unless it appears to them that the variation is required as a result of the person who applied for the certificate supplying them with incorrect or insufficient information.
(9)The Scottish Ministers must fulfil their duty to a person under subsection (7)(b) in a way that leaves the person with a record of the information which the person can show to, or otherwise share with, others.
(10)Section 94D applies in relation to a new certificate issued under this section as it applies to the original certificate.
(1)A certificate of recoverable assistance—
(a)must be reconsidered by the Scottish Ministers at the request of a person mentioned in subsection (2) if the condition mentioned in subsection (4) is satisfied,
(b)may be reconsidered by the Scottish Ministers on their own initiative if the condition mentioned in subsection (4) is satisfied.
(2)The persons referred to in subsection (1) are—
(a)the compensator who either—
(i)applied for the certificate of recoverable assistance under section 94C(1), or
(ii)was issued with the certificate of recoverable assistance under section 94F(2),
(b)where the compensation payment has been reduced under section 94J or 94K—
(i)the injured person,
(ii)another person who has received the compensation payment in respect of the injured person (or whose claim to receive the compensation payment has been treated as discharged under section 94J or 94K).
(3)But the scheme administrator of the Diffuse Mesothelioma Payment Scheme may not apply for a reconsideration under this section.
(4)The condition referred to in paragraphs (a) and (b) of subsection (1) is satisfied if—
(a)in a case in which there is a claim giving rise to the compensation payment, that claim has been finally disposed of, and
(b)any liability to the Scottish Ministers under section 94E(1) has been discharged.
(5)For the purposes of subsection (4)(a), the circumstances in which a claim is to be treated as finally disposed of include the circumstances where an award of damages has been made under or by virtue of—
(a)section 32A(2)(a) of the Senior Courts Act 1981,
(b)section 12(2)(a) of the Administration of Justice Act 1982,
(c)section 51(2)(a) of the County Courts Act 1984.
(6)A certificate of recoverable assistance may only be reconsidered on the grounds that—
(a)any amount, rate or period specified in the certificate is incorrect,
(b)the certificate specifies relevant assistance which is not recoverable assistance,
(c)the payment in relation to which the certificate was issued is not a compensation payment because it was not made in consequence of any accident, injury or disease suffered by the injured person.
(7)The Scottish Ministers may by regulations make provision about the manner in which and the period within which a request for a reconsideration may be made.
(8)Following a reconsideration under this section the Scottish Ministers must—
(a)either—
(i)confirm the certificate of recoverable assistance,
(ii)subject to subsection (9), issue a new certificate containing such variations as they consider appropriate, or
(iii)revoke the certificate, and
(b)give the persons mentioned in paragraphs (a) and (b) of subsection (2) notice of—
(i)the result of the reconsideration,
(ii)the reasons for that result,
(iii)the right to appeal against the reconsideration to the First-tier Tribunal under section 94O (except where the person is the scheme administrator of the Diffuse Mesothelioma Payment Scheme).
(9)The Scottish Ministers may not vary the certificate so as to increase the total amount of recoverable assistance unless it appears to them that the variation is required as a result of the person who applied for the certificate supplying them with incorrect or insufficient information.
(10)The Scottish Ministers must fulfil their duty to a person under subsection (8)(b) in a way that leaves the person with a record of the information which the person can show to, or otherwise share with, others.
(11)Section 94D applies in relation to a new certificate issued under this section as it applies to the original certificate.
(1)A person who has received a notice of reconsideration under section 94N(8)(b) may appeal to the First-tier Tribunal for Scotland against the reconsideration.
(2)But the scheme administrator of the Diffuse Mesothelioma Payment Scheme may not appeal to the First-tier Tribunal under this section.
(3)An appeal may only be brought—
(a)where, following a reconsideration, either—
(i)a certificate of recoverable assistance has been confirmed under section 94N(8)(a)(i), or
(ii)a new certificate has been issued under section 94N(8)(a)(ii), and
(b)on the grounds that—
(i)any amount, rate or period specified in the certificate is incorrect,
(ii)the certificate specifies relevant assistance which is not recoverable assistance, or
(iii)the payment in relation to which the certificate was issued is not a compensation payment because it was not made in consequence of any accident, injury or disease suffered by the injured person.
(4)In determining an appeal under this section, the First-tier Tribunal must take into account any decision of a court relating to the same or any similar issue arising in connection with the accident, injury or disease in question.
(5)On an appeal under this section, the First-tier Tribunal may—
(a)confirm the amount, rates or periods specified in the certificate of recoverable assistance,
(b)specify any variations that are to be made to the certificate, or
(c)order the Scottish Ministers to revoke the certificate.
(6)On receiving the decision of the First-tier Tribunal under subsection (5), the Scottish Ministers must, in accordance with that decision—
(a)confirm the certificate,
(b)issue a new certificate containing such variations as the First-tier Tribunal has specified, or
(c)revoke the certificate.
(7)Section 94D applies in relation to a new certificate issued under this section as it applies to the original certificate.
(1)This section applies in cases where a new certificate of recoverable assistance is issued as a result of a reconsideration under section 94N or an appeal under section 94O.
(2)Where the amount which has been paid to the Scottish Ministers under section 94E is greater than the amount which should have been payable on the basis of the new certificate, the Scottish Ministers are liable to pay the compensator the difference between the two amounts.
(3)Where the amount which has been paid to the Scottish Ministers under section 94E is less than the amount which should have been payable on the basis of the new certificate, the compensator is liable to pay the Scottish Ministers the difference between the two amounts.
(4)Where liability arises under subsection (2) or subsection (3), the Scottish Ministers must send to the compensator and the person to whom the compensation payment was made a statement showing—
(a)the total amount which has been paid to the Scottish Ministers,
(b)the amount which should have been paid,
(c)the difference between these two amounts, and
(d)whether a payment equal to that difference is due by the Scottish Ministers to the compensator or by the compensator to the Scottish Ministers.
(5)Where the amount of the compensation payment made by the compensator was reduced under section 94J or 94K, the compensator must—
(a)recalculate the amount of the compensation payment under section 94J or 94K to take account of the new certificate of recoverable assistance, and
(b)if that recalculation results in an increase to the compensation payment, pay the additional amount to the person to whom the compensation payment was made.
(6)The compensator is only liable to pay the amount referred to in subsection (5)(b) once the compensator has received payment from the Scottish Ministers.
(7)Where subsection (8) applies, the compensator may—
(a)recalculate the compensation payment under section 94J or 94K to take account of the new certificate of recoverable assistance, and
(b)require the repayment to the compensator by the person to whom the compensator made the compensation payment of the difference (if any) between the payment made and the payment as so recalculated.
(8)This subsection applies where—
(a)the amount of the compensation payment made by the compensator was calculated under section 94J or 94K,
(b)the compensator is liable to make a payment under subsection (3), and
(c)the new certificate of recoverable assistance issued after the reconsideration or appeal was required as a result of—
(i)the injured person or other person to whom the compensation payment was made supplying information to the compensator knowing it to be incorrect or insufficient, and
(ii)the compensator supplying that information to the Scottish Ministers without knowing it to be incorrect or insufficient.
(9)The Scottish Ministers may by regulations make provision about the timescales for payment of any amount due under this section.
(1)This section applies where—
(a)a compensation payment in the form of a lump sum payment (an “earlier payment”) is made to or in respect of the injured person, and
(b)subsequently another such payment (a “later payment”) is made to or in respect of the same injured person in consequence of the same accident, injury or disease.
(2)The liability arising under section 94E in relation to the making of the later payment is to be reduced by any amount paid in satisfaction of that liability as it arose in relation to the earlier payment.
(3)Where—
(a)the certificate of recoverable assistance in force at the time of a later payment does not reflect that a payment has been made in satisfaction of the liability arising under section 94E in relation to an earlier payment, and
(b)as a result, the aggregate of the payments made in satisfaction of the liability arising under section 94E is greater than the amount which would have been payable had that payment been so reflected,
the Scottish Ministers are liable to pay the compensator who made the later payment the difference between the two amounts.
(4)Where the Scottish Ministers are liable under subsection (3) , they must send to the compensator who made the later payment and the person to whom the compensation payment was made a statement showing—
(a)the total amount which has already been paid to the Scottish Ministers,
(b)the amount which should have been paid, and
(c)the difference between these two amounts, which will be paid to the compensator by the Scottish Ministers.
(5)Where subsection (3) applies the compensator must—
(a)recalculate the amount of the compensation payment under section 94J, and
(b)if that recalculation results in an increase to the compensation payment, pay that increase to the person to whom the compensation payment was made.
(6)Where both the earlier payment and the later payment are made by the same compensator, the compensator may—
(a)calculate the aggregate of the earlier payment and the later payment,
(b)calculate what would have been the reduction made under section 94J(4) if that aggregate amount had been paid at the date of the later payment, on the basis that—
(i)the aggregate amount will be taken to be the gross amount of the compensation payment,
(ii)the part of the aggregate amount that is attributable to a head of compensation listed in column 1 of the table in Part 2 of schedule 12 will be taken to be the part of the gross amount of the compensation payment attributable to that head, and
(iii)the amount of any recoverable assistance shown in column 2 of that table will be taken to be the amount determined in accordance with the most recent certificate of recoverable assistance,
(c)deduct from the reduction calculated under paragraph (b) the amount of the reduction under section 94J(4) from any earlier payment, and
(d)deduct from the later payment the net reduction calculated under paragraph (c) (and accordingly, the later payment may be nil).
(7)Where the compensation payment is recalculated under subsection (5) or (6), the compensator must inform the person to whom the payment has been made of that recalculation.
(8)The compensator is only liable to pay the amount referred to in subsection (5)(b) once the compensator has received payment from the Scottish Ministers.
(9)The Scottish Ministers may by regulations—
(a)make provision about the timescales for payment of any amount due under this section,
(b)make further provision for any case in which two or more compensation payments in the form of lump sum payments are made by two or more compensators to or in respect of an injured person in consequence of the same accident, injury or disease.
(1)This section applies where—
(a)in final settlement of an injured person’s claim, an agreement is entered into for the making of—
(i)periodical payments (whether of an income or capital nature), or
(ii)such periodical payments and lump sum payments, and
(b)apart from the provisions of this section, those payments would be treated as compensation payments under this Part.
(2)Where this section applies—
(a)the compensator is treated as making a single compensation payment on the day of settlement equal to the total amount of all payments to be made under the agreement referred to in subsection (1)(a),
(b)if it has not already ended, the relevant period for that compensation payment is treated as ending on the day of settlement,
(c)payments under the agreement referred to in subsection (1)(a) will not be treated as being compensation payments when they are paid,
(d)subsections (5) and (7) of section 94P do not apply.
(3)Where a payment is due to or in respect of the injured person otherwise than under the agreement referred to in subsection (1)(a), the modification mentioned in subsection (2)(b) is to be disregarded in determining the end of the relevant period in relation to that payment.
(4)Where a person making periodical payments is doing so as a result of an arrangement with another person who would otherwise have been liable to make the payments under the agreement referred to in subsection (1)(a), that other person is to be treated as the compensator for the purposes of this Part instead of the person making the payments.
(5)In this section, “day of settlement” means—
(a)if the agreement referred to in subsection (1)(a) is approved by a court, the day on which that approval is given, and
(b)otherwise, the day on which the agreement is entered into.
(1)Subsection (2) applies where a court makes an order for a compensation payment to be made in any case, unless the order is made with the consent of the injured person and the person by whom the compensation payment is to be made.
(2)The court must, in the case of each head of compensation listed in column 1 of the table in Part 2 of schedule 12 to which any of the compensation payment is attributable, specify in the order the amount of the compensation payment which is attributable to that head.
(1)The Scottish Ministers may by regulations make provision about the information to be provided to the Scottish Ministers where compensation is sought in respect of any accident, injury or disease suffered by an individual.
(2)Regulations under subsection (1) may in particular—
(a)require prescribed information about the injured person to be provided by—
(i)anyone who is, or is alleged to be, liable in respect of the accident, injury or disease,
(ii)anyone acting on behalf of such a person,
(iii)the scheme administrator of the Diffuse Mesothelioma Payment Scheme,
(iv)anyone acting on behalf of that scheme administrator,
(b)require prescribed information about the accident, injury or disease to be provided by—
(i)a person who receives or claims recoverable assistance, or
(ii)where that person has died, that person’s personal representative as specified in the regulations,
(c)allow the Scottish Ministers to request information about the amount and composition of the payment to be provided to the Scottish Ministers by any person who makes a payment (whether or not on that person’s own behalf) in consequence of or which is referable to any expenses incurred by reason of any accident, injury or disease,
(d)require that information is to be given in the manner, at the place and within the period prescribed.
(1)The Scottish Ministers may by regulations make provision about the investigation of any matter relating to the application of this Part to a payment to or in respect of an individual in consequence of any accident, injury or disease suffered by that individual.
(2)Regulations under subsection (1) may in particular include provision—
(a)about persons who are to be authorised to carry out such investigations on behalf of the Scottish Ministers,
(b)about the terms on which that authorisation may be given,
(c)about the powers which may be exercised by an authorised person in relation to—
(i)obtaining prescribed information from prescribed persons,
(ii)accessing prescribed electronic information held by prescribed persons,
(iii)entering prescribed premises,
(d)creating offences relating to—
(i)intentionally delaying or obstructing an authorised person in the exercise of any functions conferred by the regulations,
(ii)refusing or neglecting to comply with any requirement relating to the provision of information or access to electronic information.
(3)The maximum penalty that may be provided for in regulations under subsection (1) creating an offence is, on summary conviction, a fine not exceeding level 3 on the standard scale.
(1)The Scottish Ministers may by regulations modify this Part to make provision about the relationship between this Part and the relevant UK provisions in circumstances where both this Part and the relevant UK provisions apply to a payment to or in respect of an individual in consequence of any accident, injury or disease suffered by that individual.
(2)In this section—
“injured person’s address” means the address first notified in writing to the compensator by or on behalf of the injured person as that person’s residence or, if the injured person has died, by or on behalf of the person entitled to receive the compensation payment as the injured person’s last residence,
“relevant UK provisions” means—
where the injured person’s address is in Northern Ireland, any enactment making provision corresponding to this Part (or about the application of this Part) and having effect in Northern Ireland,
where the injured person’s address is in England or Wales, any enactment making provision corresponding to this Part (or about the application of this Part) and having effect there.
(3)A reference in this section in relation to the relevant UK provisions to—
(a)the compensator means a compensator within the meaning of those provisions,
(b)the injured person means an injured person within the meaning of those provisions,
(c)the compensation payment means a compensation payment within the meaning of those provisions.
(1)The Scottish Ministers may by regulations modify this Part to make provision about the recovery of payments due from a compensator in circumstances where—
(a)the relevant UK provisions apply to a payment to or in respect of an individual in consequence of any accident, injury or disease suffered by that individual, and
(b)immediately before making a compensation payment the compensator—
(i)is not resident and does not have a place of business in a part of the United Kingdom other than Scotland, but
(ii)is resident or has a place of business in Scotland.
(2)In this section—
(a)“relevant UK provisions” has the same meaning as in section 94V,
(b)a reference in relation to the relevant UK provisions to—
(i)the compensator means a compensator within the meaning of those provisions,
(ii)the compensation payment means a compensation payment within the meaning of those provisions.”.
(3)After schedule 11 insert—
(introduced by section 94A(2))
1Any payment made to or for the injured person under—
(a)section 249 of the Criminal Procedure (Scotland) Act 1995,
(b)section 130 of the Powers of Criminal Courts (Sentencing) Act 2000,
(c)section 175 of the Armed Forces Act 2006,
(d)section 8 of the Modern Slavery Act 2015,
(e)Chapter 2 of Part 7 of the Sentencing Act 2020.
2Any payment made in the exercise of a discretion out of property held subject to a trust in a case where no more than 50% by value of the capital contributed to the trust was directly or indirectly provided by persons who are, or are alleged to be, liable in respect of—
(a)the accident, injury or disease suffered by the injured person, or
(b)the same or any connected accident, injury or disease suffered by another person.
3Any payment made out of property held for the purposes of any prescribed trust (whether the payment also falls within paragraph 2 or not).
4(1)Any payment made to the injured person by an insurer under the terms of a contract of insurance entered into between the injured person and the insurer before—
(a)the day on which the injured person first claims assistance in consequence of the disease in question, or
(b)the occurrence of the accident or injury in question.
(2)In this paragraph, “insurer” means a person who has permission under Part 4A of the Financial Services and Markets Act 2000 to effect or carry out contracts of insurance.
(3)Sub-paragraph (2) must be read with—
(a)section 22 of the Financial Services and Markets Act 2000,
(b)any relevant order under that section,
(c)schedule 2 of that Act.
5Any redundancy payment falling to be taken into account in the assessment of damages in respect of an accident, injury or disease.
6So much of any payment as is referable to expenses.
| Column 1: head of compensation | Column 2: assistance |
|---|---|
| 1. Compensation for earnings lost during the relevant period | Scottish Child Payment |
| 2. Compensation for cost of care incurred during relevant period | Daily living component of Adult Disability Payment |
| Care component of Child Disability Payment | |
| Pension Age Disability Payment | |
| 3. Compensation for loss of mobility during relevant period | Mobility component of Adult Disability Payment |
| Mobility component of Child Disability Payment”. |
Commencement Information
I1S. 19 not in force at Royal Assent, see s. 27(2)
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