David Erwin, Associate in the Higgs LLP Personal Injury team, explains the importance of the 2015 Rehabilitation Code
As personal injury lawyers, we know the importance of the 2015 Rehabilitation Code.
Since its inception five-and-a-half years ago, the Code has guided the personal injury claims process with one simple objective – to restore the individual as much as possible to the position they were in before the accident.
It covers all aspects of recovery from medical to social, vocational to psychological.
It is voluntary but the Personal Injury Pre-Action Protocol requires it to be considered in personal injury claims.
The Code was agreed between representatives of those assisting claimants and the defendant insurers and their representatives.
For it to work effectively, it needs parties on both sides to work together to implement rehabilitation at an early stage in the litigation process, sometimes before liability has even been determined.
The need for rehabilitation is the overriding priority and all parties must acknowledge that and collaborate to make that happen. That collaborative approach must be followed throughout the claim.
For the injured party, having this framework in place is hugely beneficial as it ensures the most important thing – their recovery – is central to all discussions.
Importantly, the Code can be used even where liability is not agreed, particularly in catastrophic and other severe cases.
If the claim later fails for any reason, rehab costs are not to be repaid by the claimant, unless there has been dishonesty on his or her part.
At the outset of the claim, the duty is on the claimant solicitor to consider early rehab needs, which includes working to keep employment open. They should then communicate to the compensator, who should reply within 21 days.
There is an equal duty on the compensator to consider whether the claimant would benefit from rehab.
For lower value cases the claimant solicitors may arrange for treatment without getting agreement from the compensator first. However, the compensator will not be obliged to pay for treatment which is unreasonable in nature, content or cost.
The claimant’s rehabilitation needs will be recorded by the solicitor in section C of the Claims Notification Form in the MoJ Portal. This is most often for physiotherapy and can be assessed by a simple triage report, usually over the phone. The compensator has a duty to consider funding recommended treatment and to explain why if it disagrees.
In more severe injury cases, an Initial Needs Assessment (INA) is carried out to assess rehab needs.
This is carried out by a suitably qualified individual, the case manager, acting outside the claims process. That person’s identity should be agreed between parties and the chosen person must be agreed by the claimant. Ideally the case manager should be retained to implement the rehab plan.
The claimant always has the final say as to the case manager in the event of a reasonable dispute.
The INA covers injuries, incapacity, availability of NHS and any health insurance treatment, best possible treatment plan, target outcomes and return to work.
The INA is sent to both parties simultaneously and the compensator is required to pay for it within 28 days of receipt.
The compensator responds within 21 days and considers funding. They must justify any refusal and suggest alternatives. If there is disagreement, general interim payments should be considered, so that the claimant can pay for treatment direct.
The overriding purpose of an INA is to assess the claimant’s medical and social needs with a view to recommending treatment.
You can see that the collaborative approach is emphasised throughout, especially in the case of severe and catastrophic cases, where the parties will discuss an agreed approach towards treatment, often meeting for that purpose.
It is all geared to ensuring the injured person receives the rehab they need to restore quality of life and earning capacity as soon as possible – and as much as possible.
