This might seem like an obscure question but it could be important for a case of mine.

A former nurse who was getting IB + REA (no IIDB because below 14%) reached 65 and his income changed to RP + RA.

He started to get a NHS Injury Benefit when he was 65 (he had to give up his job as a nurse about 20 years when he broke his back at work). This benefit is paid under the NHS Injury Benefit Regulations 1995 to compensate NHS workers who are still suffering disablement as a result of an accident while working for the NHS. It seems that this Injury Benefit overlaps with IIDB/REA/RA and is only payable if entitlement would be more than the person is receiving in IIDB/REA/RA. While on REA my customer's income was too high, but when he reached 65 and REA dropped to RA his income was low enough to qualify for the NHS Injury Benefit, which he has been receiving for 2 years now.

The NHS Pensions Division has now written to him to advise that they have made a mistake and he is not entitled to the Injury Benefit and that he has been overpaid £4,250 (although they are not asking him to repay any money because it was their mistake). Apparently their solicitors have advised them that the regulations do not allow them to commence or terminate an award of Injury Benefit unless entitlement is triggered by an overlapping award (i.e. IIDB/REA/RA) starting or stopping (i.e. a reduction alone is not enough to trigger a start/stop of Injury Benefit). They are arguing that IIDB,REA and RA are all the same benefit and therefore a switch from REA to RA is just a reduction in the same benefit, not the start of a new benefit. I need to check on the exact wording of the NHS Injury Regs but this is how the issue has been explained to me.

The interdependence of IIDB, REA and RA are obvious but I think an argument could be put that they are separate benefits. CPAG annotated regs (p312) states in the notes to Schedule 7 of the SSCBA 1992 "REA replaced the misnamed Special Hardship Allowance and is a benefit in its own right, rather than a mere supplement to disablement benefit". There are similar passages in the notes elsewhere but I can't find anything in the regs that makes this point clear. A colleague of mine thinks there used to be a regulation that listed all social security benefits which might have helped clarify whether REA and REA were benefits in their own right but I can't find anything. My questions are:

1. Does anyone know of any reg or caselaw which might clarify this matter?
2. If not, what substance is there to my argument?
3. Should I get out more?

In addition, if anyone else has come across this particular issue I would be interested in your views. I got the impression from speaking to the NHS Pensions Division that this might be a widespread trawl that was going on because of a recent change in their legal interpretation of the regs so other ex-NHS staff are likely to be affected.

The flip side to my customer's case is that there are also ex-NHS staff who have been underpaid NHS Injury Benefit (e.g. if REA is awarded in addition to IIDB and this increase in income triggered Injury Benefit stopping) who would prefer the new interpretation to mine. I'll contact Unison to see if they have come across this.

Section 106 of the SSC&B Act 1992 is in the following terms: -

“Benefits and increases subject to qualifications as to time
Schedule 7 to this Act shall have effect in relation—
(a) to unemployability supplement;
(b) to disablement gratuity;
(c) to increases of disablement pension during hospital treatment;
(d) to reduced earnings allowance;
(e) to retirement allowance; and
(f) to industrial death benefit,
for all of which the qualifications include special qualifications as to time”.

This, in my view, suggests that each is a separate benefit.

However, paragraph 13(2) of schedule 7 of the Act clinches it for me. It states: -

‘If the day before a person ceases under sub-paragraph (1) above to be entitled to reduced earnings allowance he is entitled to the allowance (by virtue either of one award or of a number of awards) at a weekly rate or aggregate weekly rate of not less than £2.00, he shall be entitled to a benefit, to be known as “retirement allowance”’.

Thanks nevip. Couldn't agree with you more (unless of course I get a customer who has been underpaid in which case you couldn't be more wrong!).

Not sure how much a can of worms this is/might be but I have contacted Unison and will update if there is anything to report.