24/07/2020
On 27 April 2020, the Secretary of State for Health and Social Care announced the availability of new death in service benefits for eligible NHS and social care staff providing vital frontline work during the COVID-19 pandemic. The NHS and Social Care Coronavirus Life Assurance Scheme (England) 2020 (England Scheme) was set out in England and funding was provided to devolved administrations in Scotland, Wales and Northern Ireland.
This has been welcomed by many, particularly those who are not a member of the NHS Pension Scheme.
Questions remain though as to eligibility for the Scheme, and the amount and the impact of such a lump sum payment on any prospective civil claim that may later be brought (or other pension or life assurance schemes) across the jurisdictions of the United Kingdom and Ireland?
Here we provide a brief guide to the key aspects of the Scheme across the four jurisdictions of the UK and in Ireland:
England | Wales | Scotland | Northern Ireland | Republic of Ireland
Under the England Scheme, in the event of a staff member dying in the course of their work - where it can be reasonably concluded the person’s death was caused by coronavirus in the course of their work and they first exhibited symptoms within 14 days of being exposed - a lump sum payment of £60,000 will be made to their estate.
This is a time limited scheme providing cover for the duration of the pandemic which is backdated to 25 March 2020. The Scheme opened for claims on 20 May 2020. The ‘Scheme information for England claimants’ states that “the scheme will remain open until the relevant NHS workforce provisions of the Coronavirus Act 2020 expire. Ministers will then give notice that the Scheme is to close, and a six-month period will allow any final claims to be made and settled.”
Eligibility of the award for members of staff employed in the NHS and social care is fairly widely defined and includes frontline staff “exposed to a high risk of contracting coronavirus in circumstances where they could not reasonably avoid that risk by virtue of the nature and location of the work which they are contracted to carry out” who:
Within adult social care, the England Scheme covers all staff employed by an organisation registered by the Care Quality Commission (CQC) to provide personal care and accommodation for persons who require nursing or personal care. In addition, members of the social care workforce in non-CQC registered organisations are also eligible, if their employer receives public funding.
The payments of £60,000 are treated as effectively a death in service benefit as opposed to compensation arising from a negligence claim. Accordingly, any such payment will not impact upon any prospective civil claim which may be brought by the deceased’s estate. It also does not affect any other right under any other existing pension or life assurance scheme.
This is set out explicitly within the Scheme rules, the pertinent clause being:
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“Part 6 General 9. Effect on existing rights and benefits. 9.1. A payment under paragraph 6.1 does not affect any right, privilege or benefit acquired or accrued under any existing registered pension scheme, contract or court order that arises from the said death. 9.2. The benefits of this Scheme are in addition to and do not replace any right to payment that the member may have under any registered pension scheme, contract or court order.” |
Contacts: Joy Middleton and Adam Minns
The NHS and Social Care Coronavirus Life Assurance Wales Scheme 2020 (Wales Scheme) with the £60,000 payment has now been confirmed.
The Wales Scheme opened on 19 June 2020. The current Wales Scheme end date is 25 March 2022 but this can be extended by the Welsh Ministers.
Other than the time limit for claims the Wales Scheme rules substantively mirror the England Scheme.
The Wales Scheme has almost identical application to that in England. It applies to the same fairly wide ambit of frontline staff as the England Scheme as outlined above. The main difference is that it applies in the adult social care context to all staff employed by a registered care provider registered under section 7 of the Regulation and Inspection of the Social Care (Wales) Act 2016 rather than the CQC in England.
As in the England Scheme, the payments of £60,000 are treated as effectively a death in service benefit as opposed to compensation arising from a negligence claim. Accordingly, any such payment will not impact upon any prospective civil claim which may be brought by the deceased’s estate. It also does not affect any other right under any other existing pension or life assurance scheme. The same clause as outlined above applies to the Wales Scheme as it does the England Scheme.
Contacts: Joy Middleton and Adam Minns
The Scottish Government has introduced the NHS Scotland and Social Care Coronavirus Life Assurance Scheme 2020 (Scotland Scheme) to ensure that all NHS staff and social care workers who provide frontline services during the COVID-19 pandemic, are covered. The Scotland Scheme is effective from 17 March 2020 and will continue until revoked.
In respect of the NHS, it extends to all persons employed or engaged by one of the fourteen regional Health Boards or seven Special Health Boards (including the Scottish Ambulance Service); staff covered by the NHS Scotland Two Tier Agreement (contracted out catering and domestic services etc.,) the NHS support organisations; and GP Practices including GP Partners, their staff and locum practitioners.
Rather than payment of a fixed sum, it provides (a) £60,000; plus (b) an amount equal to two times the relevant annual salary (together with a six month pension entitlement or a long term pension for those with at least two years’ service) in the event of death in service of an eligible deceased person. This amount will be reduced by the amount of any other death in service sum (or pension) received under the NHS Scotland pension schemes.
In respect of social care workers, the Scotland Scheme provides a death in service lump sum of £60,000 in the event of death in service of an eligible deceased person. However, this amount cannot be reduced by the amount of any death in service lump sum received by the recipient from any other source.
Eligibility for the Scotland Scheme is limited to those employed by or providing services on behalf NHS Scotland; and those providing social care services in the course of their employment, during the period of the COVID-19 outbreak, and is determined by the following criteria:
It is important to note that the death in service payment is an employment benefit and will not impact upon any future civil claim in Scotland. A surviving relative will still have the right to pursue a wrongful death claim if it is alleged that the death occurred as a result of negligent actions. Each case will turn on its individual facts.
Contact: Stephanie Canda
The Northern Ireland Executive has yet to implement a similar benefit scheme at the time of writing to that of England and Scotland.
Although funding for a similar life assurance scheme for frontline workers has been provided to the Executive, the most recent comment by the Health Minister, Robert Swann, was made on 27 April 2020. At that time he was reportedly considering which model would be the “best fit” and the Department of Health stated they were committed to developing a “fair and effective scheme for providing life assurance”.
However, there have been no updates on further developments on this issue. The Department of Health released a framework for the rebuilding of health services on 9 June but there was no mention of a life assurance scheme.
With regards to the impact that any life assurance or death benefit scheme may have on other civil claims, pension schemes or private life assurance policies held by affected frontline workers in Northern Ireland, it is simply too early to say with any certainty.
However, we consider it unlikely that any proposed scheme will be interpreted differently to those of England, Scotland and Wales with regard to its impact on civil claims.
Contacts: Amanda Wylie and Gareth McKee
In relation to frontline medical workers, the Health Service Executive (HSE) has confirmed that no changes have been made to death in service benefit for HSE and other public health service employees, and pension entitlements are unaffected by COVID-19. In addition, on 22 July 2020 the Minister for Health announced a specific scheme for the families of frontline health workers (including agency workers) who die due to COVID-19. The scope and details of the proposed scheme are awaited.
The position in Ireland is consistent with the position in England and Scotland in terms of the impact of any death in service benefits on civil claims. Section 50 of the Civil Liability Act 1961 provides that in assessing damages, no account shall be taken of “any sum payable on the death of the deceased under any contract of insurance”. Section 2 of the Civil Liability (Amendment) Act 1964 deals with the same issue when assessing damages for personal injury not causing death. This was challenged and upheld in the High Court case of Greene v Hughes Haulage [1997].
Contact: David Strahan
The benefit has been put in place to recognise the sacrifices made by healthcare workers going on to the front line where there was an inherently higher risk of exposure to the virus. The payments are not to be treated as compensation and cannot be considered when compensation claims are made. Whilst the application forms seek confirmation of exposure, mere confirmation of being in a place or role with a higher risk of exposure cannot in itself be read as negligent exposure. The form also operates against the backdrop of the Health and Safety Executive’s legal requirement on employers to report any case of COVID-19 infection or COVID-19 fatality to/of an employee under the RIDDOR scheme where there is “reasonable evidence” that the infection was as a result of occupational exposure.
We anticipate that the courts will frown upon any suggestion by claimant firms that this is seen of some kind of admission. Equally, the courts will not tolerate any interference by insurance firms in the submission of these forms which would fly in the face of the spirit in which this benefit was intended.
Contacts: Joy Middleton and Greg Woods
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