Operational Guidelines: Recovery of Benefits and Assistance (RBA) Scheme

Description of Scheme

The Recovery of Benefits and Assistance (RBA) Scheme recovers the value of certain illness-related social welfare payments from compensation awards made to a person as a consequence of personal injuries claims. The benefits are recovered from the compensator, not from the injured person.

The specified benefits to be recovered under the RBA Scheme are:

• illness benefit
• partial capacity benefit
• injury benefit
• incapacity supplement, that is, the increase of disablement pension payable where a person is permanently incapable of work as a result of an occupational accident or disease and does not qualify for any other social welfare payment
• invalidity pension
• disability allowance
• supplementary welfare allowance.

The commencement date for the RBA Scheme is 1 August 2014.

Legislation

The main provisions are contained in sections 13 and 14 of the Social Welfare and Pensions Act 2013 (No. 38 of 2013). Section 13 inserts Part 11B in the Social Welfare Consolidation Act 2005 (as amended) and section 14 makes some consequential amendments to the Personal Injuries Assessment Board Act 2003 (as amended).

The Social Welfare (Consolidated Claims Payment and Control) (Amendment) (No.2) (Recovery of Certain Benefits and Assistance Regulations 2014 (SI 332 of 2014) specifies the form in which an application for a statement of recoverable benefits and assistance shall be made and specifies the information that must be provided in making such an application.

The Social Welfare (Consolidated Claims Payment and Control) (Amendment) (No.5) (Recovery of Certain Benefits and Assistance Regulations 2014 (SI 497 of 2014)

The Social Welfare (Consolidated Claims Payment and Control) (Amendment) (No.1) (Recovery of Certain Benefits and Assistance Regulations 2015 (SI 177 of 2015)

Social Welfare (No. 2) Act 2019

Administration

The Recovery of Benefits and Assistance Scheme is administered by:

Obligation to pay recoverable benefits and assistance

Where a compensator intends making a compensation payment to a person as a consequence of a non-fatal personal injury, the compensator must pay the Minister for Social Protection an amount equal to the illness-related social welfare payments that have also been paid as a consequence of that personal injury.

However, in the case of a compensation payment arising from a court order or an Injuries Board assessment, the obligation to pay the recoverable benefits and assistance is limited to the total amount of damages assessed in relation to loss of earnings or profits.

A compensator can offset the amount of recoverable benefits and assistance paid to the Minister against the amount of compensation for loss of earnings or profit, but not against any other elements of the compensation claim.

A compensator must pay any recoverable benefits and assistance due to the Minister before making a compensation payment to the injured person.

The amount is recovered from the compensator as they are the liable entity. The injured person’s actual illness related payments (e.g. illness benefit or invalidity pension) are not being repaid and there is no implication for any refund of tax.

Applications for statements of recoverable benefits and assistance

Where a compensator intends making a compensation payment to a person as a consequence of a non-fatal personal injury and that compensation payment does not arise from an Injuries Board assessment, the compensator must apply for a statement before making any compensation payment.

The Injuries Board must apply for a statement of recoverable benefits and assistance before making an order to pay under the Personal Injuries Assessment Board Act 2003 (No. 46 of 2003) (as amended).

Where the compensation payment arises from an Injuries Board assessment, the order to pay issued by the Injuries Board will state the amount of recoverable benefits and assistance.

Note: Where the injured person is under the age of 16 years on the date on which the compensation payment is to be made (or on the date on which the Injuries Board is to issue an order to pay), there is no need to apply for a statement of recoverable benefits and assistance.

Applications for statements should be submitted to:

Applications for statements may also be made by secure e-mail, by prior arrangement with the RBA Section.

The application for a statement of recoverable benefits and assistance will be made on form RBA01. The completed RBA01 must contain the following information for an application for a statement to be processed:

• the name of the injured person
• the date of birth of the injured person
• the address of the injured person and details of their representative (if known)
• details of the personal injury sustained by the injured person
• the date of occurrence of the personal injury sustained by the injured person
• the name and address of the compensator
• where an agent or legal representative is acting on behalf of a compensator, the name and address of the agent or legal representative, as appropriate
• where a compensator or the agent or legal representative of a compensator has assigned a case manager to deal with a claim for compensation by an injured person, the name and address and contact details of the case manager, including their telephone number and electronic mailing address
• where an application for a statement of recoverable benefits is made by a person other than a compensator, the agent or legal representative of a compensator or the case manager assigned to deal with a claim, the name of the person who makes the application
• the reference number assigned to the case by the compensator or the Injuries Board

Where an application for a statement of recoverable benefits and assistance does not include this information, the application will be returned to the compensator or the Injuries Board.

Note: The details of the personal injury should include a brief description of the nature of the incapacity in plain language (e.g. broken left fibula) and should also provide a brief description of how the injury occurred in plain language (e.g. road traffic accident, slip, fall). Compensators must inform the RBA Section of any change to the reference number used to identify a case and any other changes to the information provided on the RBA01.

Statements

The RBA Section will issue a statement of recoverable benefits and assistance to the Injuries Board or the compensator within 25 working days of receiving an application.

The statement of recoverable benefits and assistance will specify:

• the amount of recoverable benefits and assistance paid as a result of the personal injury up to the date of issuing the statement or up to the end of the specified period, whichever is earlier. The amount of recoverable benefits and assistance paid will be broken down by scheme
• where the specified period has not ended and the injured person continues to be in receipt of a specified benefit, their weekly rate of the payment
• where the specified period has not ended and the injured person continues to be in receipt of a specified benefit, the total amount of recoverable benefits that is expected to be paid in each week in the 13 weeks following the date of issue of the statement
• the date up to which the statement is valid
• the unique RBA reference number for the case

When the RBA Section issues a statement to the Injuries Board or the compensator, it will at the same time issue a copy of that statement to the injured person or their representative.

Each RBA case will be given a unique RBA reference number. This number should be quoted in any subsequent communications with the RBA Section.

Note: Where the specified period has elapsed, the statement will not include details of any specified benefit that the injured person may currently be receiving or may be expected to receive in the future.

Validity and renewal of statements

Applications for renewals of statements should be made on Form RBA02. Compensators should only apply for a renewal statement when they are ready to make a compensation payment.

Note: Where it comes to light that any recoverable benefits and assistance have been omitted from a statement, these benefits will be shown on any renewal statement.

On each occasion that the RBA Section issues a new statement to the Injuries Board or a compensator, it will also issue a (renewal) statement to the injured person or their representative and to all other parties to whom a statement has previously issued.

Requests for further information

Section 343P(3) of the Social Welfare Consolidation Act 2005 (inserted by section 13 of the Social Welfare and Pensions Act 2013) requires the RBA Section to issue a statement which specifies the amount of recoverable benefits and assistance. Section 343Q(3) allows a person to whom a statement of recoverable benefits and assistance is issued to request particulars of the manner in which the amount of recoverable benefits and assistance specified in the statement was calculated.

In order to expedite matters and to reduce administrative costs for all involved, the RBA Section will provide particulars of the manner in which the amount of recoverable benefits and assistance was calculated as part of the statement of recoverable benefits. The statement will give a breakdown of the amount of recoverable benefits and assistance paid by scheme and, where recoverable benefits and assistance continue to be paid, will indicate the weekly rate of payment and the total amount that is expected to be paid for each week in the 13 weeks following the date of issue of the statement.

It should not therefore be necessary for a person to whom a statement issues to make a separate application for particulars of the manner in which the amount of recoverable benefits and assistance was calculated.

Appeals and Reviews

Any questions as to whether benefits or assistance are recoverable will be decided by a Deciding Officer in the RBA Section.

Where a compensator or an injured person or their representative to whom a statement is issued is unhappy with a decision as to whether a particular benefit or assistance (or any part thereof) specified in the statement is recoverable, they may appeal that decision to the independent Social Welfare Appeals Office. Appeals should be made in writing to:

No appeal can be made until the amount of recoverable benefits and assistance specified in the statement of recoverable benefits and assistance has been paid to the Minister.

Where an Appeals Officer decides to reduce the amount of recoverable benefits and assistance, the RBA Section will refund the excess paid to the compensator.

In advance of an appeal, a compensator or an injured person to whom a statement is issued may seek to have the decision reviewed. They should set out in detail the facts on which the review is based and enclose any further evidence that they think is relevant to the case.

They should send this to the RBA Section and the decision will be reviewed by a Deciding Officer.

Recovery of benefits and assistance

A compensation payment may arise:

• as a result of a court order or an Injuries Board order to pay
• as a result of an agreement between the compensator and the injured party which is not the subject of a court order or an Injuries Board order to pay

Compensation payments arising from a court order or Injuries Board assessment

Where a compensation payment arises as a result of a court order or an Injuries Board assessment, the compensator is obliged to pay to the Minister either:

• the total amount of compensation assessed in relation to loss of earnings or profit
• the amount of recoverable benefits and assistance specified in the statement of recoverable benefits and assistance, whichever is the smaller amount

Where the compensation payment is the subject of a court order or an Injuries Board assessment and no damages are assessed for loss of earnings or profit – that is, the amount of compensation for loss of earnings or profit is €0 – the compensator has no liability in respect of the RBA Scheme.

The Injuries Board order to pay will specify the amount that the compensator is liable to pay to the Minister for Social Protection and the amount that the compensator is liable to pay to the claimant or injured person.

Compensation payments which do not arise from a court order or Injuries Board assessment

Where a compensation payment does not arise as a result of a court order or an Injuries Board assessment, the compensator is obliged to pay to the Minister the amount of recoverable benefits and assistance specified in the statement of recoverable benefits and assistance.

Reduction of compensation payment to the injured person and discharge of liability

A compensator can offset the amount of recoverable benefits and assistance paid to the Minister against the amount of compensation for loss of earnings or profits to be paid to the injured person, but not against any other element of the compensation payment.

Where a compensator offsets the amount of recoverable benefits and assistance paid to the Minister against the amount of compensation for loss of earnings or profits to be paid to the injured person, the compensator must notify the injured person accordingly.

A claim for compensation for loss of earnings or profits is discharged to the extent of the value of any recoverable benefits and assistance paid to the Minister.

Payments and notifications

Each RBA case is assigned a unique RBA reference number. This should be quoted in all communications with the RBA Section including any payment or remittance advice notes.

Electronic Funds Transfer

Payments of recoverable benefits and assistance may be made by electronic funds transfer (EFT) to the department's bank account:

• Account name: Public Bank Account for Recovery of Certain Benefits and Assistance
• Bank name: Danske Bank
• Branch address: Danske Bank, 7th Floor, The Shipping Office, 20-26 Sir John Rogerson's Quay, Dublin 2, D02 Y049.
• Account no.: 80004006
• BIC: DABAIE2D
• IBAN: IE49DABA95159980004006

The payment narrative must include the RBA reference number and sufficient information to enable the department to identify who the payment is from.

Payment by cheque

Cheques should be crossed and made payable to the Department of Social Protection and should be accompanied by a payment or remittance note which includes the RBA reference number.

Cheques should be sent to:

Compensators should forward a completed RBA20 form to the RBA Section when making a payment of recoverable benefits and assistance.

Compensators should only close their compensation claim file after the RBA20 form has been submitted to the department.

Terminology

A 'compensation payment' is a payment made by a person ('the compensator') who is (alleged to be) liable to any extent in respect of a personal injury (not causing death) which is suffered by another person ('the injured person').

Part 11B of the Social Welfare Consolidation Act 2005 (inserted by section 13 of the Social Welfare and Pensions Act 2013) also refers to a 'relevant compensation payment'. A 'relevant compensation payment' means any part of a compensation payment that is attributable to loss of earnings or profits of an injured person.

A 'compensator' is the person who is (alleged to be) liable to any extent in respect of a personal injury (not causing death) which is suffered by another person ('the injured person'). Typically, the 'compensator' will be the insurance company paying the compensation.

The 'injured person' is the person who has suffered a personal injury or his or her personal representative or any person acting on his or her behalf.

A 'personal injury' includes any disease and any impairment of a person's physical or mental condition.

Application of the RBA Scheme

The RBA Scheme applies to all compensation payments made in respect of personal injuries on or after 1 August 2014 except:

a. compensation payments made in respect of injuries causing death

b. compensation payments made to an injured person:

• by the Hepatitis C and HIV Compensation Tribunal
• by a court of competent jurisdiction to compensate certain persons who have contracted Hepatitis C or HIV within the State from the use of Human Immunoglobulin Anti-D, whole blood or other blood products
• by the Residential Institutions redress Board
• by the Residential Institutions Statutory Fund Board
• under the provisions of the Health (Repayment Scheme) Act 2006
• by the Criminal Injuries Compensation Tribunal
• in relation to a disability caused by thalidomide
• in accordance with the Garda Síochána (Compensation) Acts 1941 to 2003

c. compensation payments made pursuant to a court order or an order of the Injuries Board or a settlement which was made before 1 August 2014.

Note: The RBA Scheme applies to personal injury cases only. There is no requirement to apply for a statement in cases where Ex Gratia payments are made to women who were admitted to and worked in the Magdalene Laundries

Statements

The statement of recoverable benefits and assistance will specify the amount of recoverable benefits and assistance and will provide a breakdown by scheme of the amount of any recoverable benefits and assistance paid.

Where the specified period has not ended and the injured person continues to be in receipt of a specified benefit, the statement will also specify the injured person's weekly rate of payment and the amount of recoverable benefits that is expected to be paid in each week in the 13 weeks following the date of issue of the statement.

Recoverable benefits and assistance

'Recoverable benefits and assistance' means:

• the specified benefits and assistance paid to an injured person as a result of the personal injury in the specified period up to the date of issue of a statement of recoverable benefits and assistance
• the specified benefits and assistance that may be paid to an injured person as a result of the personal injury after the date of issue of the statement of recoverable benefits and assistance until the end of the specified period

Specified benefits

The specified benefits to be recovered under the RBA Scheme are:

• illness benefit
• partial capacity benefit
• injury benefit
• incapacity supplement, that is, the increase of disablement pension payable where a person is permanently incapable of work as a result of an occupational accident or disease and does not qualify for any other social welfare payment
• invalidity pension
• disability allowance
• supplementary welfare allowance

Note: Only the benefits listed above are specified benefits.

Paid as a result of a personal injury

Only specified benefits paid to the injured person as a result of the personal injury are recoverable.

The RBA01 form must provide the date of the personal injury sustained by the injured person and details of that injury. The details of the personal injury should include a brief description of the nature of the incapacity in plain language (e.g. broken left fibula) and should also provide a brief description of how the injury occurred in plain language (e.g. road traffic accident, slip, fall).

Specified period

The specified period in respect of which specified benefits are recoverable begins on the date on which the injured person first becomes entitled to a specified benefit and ends on the earliest of:

• the expiration of the period of 5 years from the date on which the injured person first becomes entitled to a specified benefit
• the date on which the compensator makes a compensation payment in final discharge of any claim made by or in respect of the injured person as a result of the personal injury
• the date on which an agreement is made under which an earlier payment is treated as having been made in final discharge of any such claim

Note: The specified period begins on the date on which the injured person first becomes entitled to payment of a specified benefit, that is, the start date of payment of the benefit. Where a person is paid more than one specified benefit, the latest possible date on which the specified period ends is 5 years from the start date of the first benefit the injured person was paid.

Calculating the amount to be repaid to the Minister and 'offsetting' against compensation for loss of earnings

Where a compensation payment is not made as a result of an Injuries Board assessment or a court order, the compensator must pay the Minister the full amount of the recoverable benefits and assistance specified in the statement of recoverable benefits and assistance.

However, where the compensation payment is made as a result of an Injuries Board assessment or a court order, the obligation to pay the Minister is limited to the total amount of damages in relation to loss of earnings or profits. This means that, where a compensation payment arises as a result of an Injuries Board assessment or a court order, the compensator must pay either:

• the total amount of compensation assessed in relation to loss of earnings or profit
• the amount of recoverable benefits and assistance specified in the statement of recoverable benefits and assistance, whichever is the smaller amount

A compensator can offset the recoverable benefits and assistance paid to the Minister against compensation for loss of earnings or profits. However, the compensator cannot offset the recoverable benefits and assistance against any other element of the compensation payment (e.g. general damages, special damages for medical expenses).

Multiple compensators

Where there is more than one compensator, each compensator is liable to pay the full amount due to the Minister. Compensators should therefore work together to apportion their individual liability to ensure that the full amount due is paid to the Minister.

Compensators must submit an RBA20 form when making a payment of recoverable benefits and assistance. Where there are multiple compensators, the RBA20 should clearly indicate how liability has been apportioned between the compensators.

Each compensator can only reduce the amount of any damages for loss of earnings or profits paid to the injured person by the amount of recoverable benefits and assistance that he or she is paying to the Minister.