Chris Middleton

Personal injury practitioners will be aware that there has been an explosion in the use of rehabilitation (in most cases, physiotherapy) in low value personal injury claims over the past few years. From being a rare feature of low end PI, physio has become almost the default position, even for injuries where recovery is measured in weeks rather than months or years. Only a cynic of the deepest die could possibly suggest that this is anything in the least to do with inflating the value of claims (now that the damages recovered affects the costs recoverable, in CFA and fixed costs cases), or that it could be in the slightest way related to the money which can be made by rehabilitation agencies with financial relationships to solicitors or insurers. Even after setting such unworthy attitudes aside, the cost of rehabilitation is of increasing concern to insurers. This article looks at the scope for challenging such claims, in the context of the Rehabilitation Code.


The purposes of the Code

According to its introduction, the Code

“promotes the collaborative use of rehabilitation and early intervention in the compensation process. The Code’s purpose is to help the injured claimant make the best and quickest possible medical, social, vocational and psychological recovery. This means ensuring that his or her need for rehabilitation is assessed and addressed as a priority, and that the process is pursued on a collaborative basis. Although the objectives of the Code apply whatever the clinical and social needs of the claimant, the best way to achieve them will vary depending on the nature of the injury and the claimant’s circumstances”.


For those who have not already taken the hint, section 1.1 states that

“The purpose of the personal injury claims process is to restore the individual as much as possible to the position they were in before the accident. The Code provides a framework for the claimant solicitor and compensator to work together to ensure that the claimant’s health, quality of life, independence and ability to work are restored before, or simultaneously with, the process of assessing compensation”.


And for those for whom the point really needs hammered home, section 1.2 proclaims that

“Although the Code is recognised by the relevant CPR Pre Action Protocols, achieving the aims are more important than strict adherence to its terms. Therefore, it is open to the parties to agree an alternative framework to achieve the early rehabilitation of the claimant”.


It therefore seems tolerably clear that the Code is designed to promote effective rehabilitation and recovery (bearing in mind in particular that its various provisions apply to high as well as low value cases), rather than as a stick to beat your opponent with. I have been unable to find any reported case suggesting that specific sanctions arise for failing to follow the Code (even though it a failure to do so would seem a relevant consideration in certain contexts e.g. when a court decides an application for an interim payment for rehabilitation). Para 4.2 of the Pre-Action Protocol for Personal Injury Claims says that the Code is “likely to be helpful” with identifying rehabilitation needs, but nothing stronger than that. Similarly, while para 6.7 of the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accident enjoins the parties to consider the Rehabilitation Code “at all stages”, it does not create any explicit sanctions for failing to follow the Code (in contrast to the position with most infractions of the Protocol).

All this suggests that the importance of the Code should not be overstated, and that it should not be relied upon (alone) as a basis for saying what a judge can and cannot award in relation to rehabilitation costs. Nonetheless, the Code does seem to set out what is expected to be standard behaviour (if not a procedural straightjacket) in the relevant type of case. Breaches may therefore carry some weight when courts come to determine awards for rehab costs. Or to put it in less legalistic language: it might be the push a wobbly judge needs to disallow what the claimant is claiming.

The Code and lower value claims
In this article, I will focus on the provisions specifically set out in the Code for what it calls “lower value” claims – i.e. those worth up to £25,000.00. These are set out in sections 4 to 6 of the Code. Section 4.2 suggests that , as well as physiotherapy, the Code will apply to “psychological intervention or other services to alleviate problems caused by the injury” – useful, when the cost of psychotherapy such as CBT or EMDR is often far in excess of the cost of physiotherapy and the like.

However, the introduction recognises that consideration must be given to the merits of the individual case, even in lower-value cases. This may make it difficult for defendants to argue that the Code’s provision for lower value cases set out maxima, as well as minima, for what rehabilitation should consist of.

The independence of the provider
At first blush, section 4.6 and 4.7 indicate that it is strictly verboten for a solicitor (or an expert, or a medico-legal agency) to use his, her or its pet provider (or even someone more loosely connected with it) for rehab:

“The person or organisation that prepares the Triage and, if appropriate, Assessment and Discharge Reports and / or undertakes treatment should, save in exceptional circumstances, be entirely independent of the person or organisation that provided any medico-legal report to the claimant”

“The Triage and the preparation of any subsequent Assessment and Discharge Report and / or the provision of any treatment may be carried out or provided by a person or organisation having a direct or indirect business connection with the solicitor or compensator only if the other party agrees. The solicitor or compensator will be expected to reveal to the other party the existence and nature of such a business connection before instructing the connected organisation”.


Stepping back, however, neither the Code, nor the Protocols, provides any sanction for breaches of these rules. In relation to the position of an agency, section 4.6 refers to CPR 45.29, presumably the bar to recovering an expert’s fees, in soft tissue injury cases, when he or she is linked to an organisation providing treatment that he or she has recommended (see CPR 45.19(2B) and CPR 45.29I(2B)). But this underlines the lack of any sanction for a solicitor referring the claimant to its pet provider. It is particularly hard to see what, if anything, the requirement to disclose any connection to the provider is required to achieve (except perhaps to rub the defendant’s nose in it). In the absence of any apparent sanction, the best a defendant is likely to do when a solicitor fails to disclose a connection to a treatment provider is to nurture the seeds of judicial suspicion, when some other dubious element has already arisen in relation to a claim for rehab treatment.


Raising the need for rehabilitation and the CNF

Pursuant to section 2.3 and 2.4 of the Code, the claimant’s solicitor is obliged to communicate the claimant’s needs to the compensator as soon as practicable, and to provide sufficient information to make a well-informed decision about the need for rehabilitation assistance. Section 3.1 follows on from this by requiring the compensator to contact the claimant solicitor as soon as practicable to seek to work collaboratively on addressing the claimant’s needs.

In the context of lower value claims, the likelihood of these proceeding via the MoJ portal procedure is recognised, at least in soft-tissue injury cases (though it is unclear why a distinction is made in relation to these, as the various Protocols do not apply solely to soft-tissue injuries). Section 4.1 addresses this as follows:

“In all cases, the claimant’s solicitor should consider, with the claimant and / or the claimant’s family, whether there is a need for early rehabilitation. The results of that discussion should be recorded in section C of the electronic Claims Notification Form, which will be transmitted through the Ministry of Justice Claims Portal to commence the claim. That form requires details of any professional treatment recommendations, treatment already received (including name of provider) and ongoing rehabilitation needs”.


Section 4.2, meanwhile requires that,

“[I[n all cases, the claimant solicitor should communicate with the compensator as soon as practical about any rehabilitation needs, preferably by electronic means. The mechanism of completion and transmission of the Claims Notification Form should facilitate this process and should take place before any significant treatment has been commenced.”


Section 4.3 of the Code suggests that

“Where a claimant has decided not to take up a form of treatment that is readily available in favour of a more expensive option, the reasonableness of that decision may be a factor that is taken into account on the assessment of damages”.


These provisions are reinforced by para 6.7 of the RTA Protocol, under which the claimant must set out details of rehabilitation in the CNF, though again without providing any sanction for failing to do so.

In the absence of any express provision that damages for rehab must be disallowed solely because of a failure to set out rehab needs in the CNF, the strongest argument a defendant is likely to be able to run is that damages for rehab costs should be reduced when the failure to notify rehab needs has prevented a defendant from arranging rehab at a lower cost than that incurred by the claimant. Indeed, if the defendant can show that it was willing to fund rehab itself, it is strongly arguable that no damages should be awarded in respect of treatment costs at all (bearing in mind that the controversial – to put it mildly – requirement in Copley v Lawn [2009] EWCA Civ 580 for a defendant, who provides a claimant with a courtesy vehicle, to pay the claimant in damages the cost to it of providing this vehicle, does not apply – expressly at least – to other cases where a defendant funds provision of something to avoid the claimant having to pay for it him or herself).

However, the tensions between the central purpose of the Code, and the use a defendant is likely to wish to make of it, are plain on the face of section 4.1. If a claimant may include details of treatment already received, this suggests that no obligation arises – in every case, at least – to notify the defendant of prospective rehab needs, in order to allow the defendant to fund them. It is difficult to reconcile this with the suggestion in section 4.2 that rehabilitation needs should be communicated before treatment begins. The wording of section 4.3 is too equivocal to give rise to any clear or automatic effect on the damages awarded when rehab needs are not flagged up in the CNF, though it could be argued that the availability of less expensive treatment will be that much harder to establish if the claimant does not tell the defendant at the outset of his or her intention to have treatment.

As this argument will only arise where the claimant has failed to notify the defendant in advance of an intention to undertake physiotherapy, the defendant may also have difficulty persuading a court to disallow rehab costs on this basis, unless it can show (by analogy with the position re courtesy vehicles in Copley) that it could have funded rehabilitation, and perhaps also that it could have funded this for less than the claimant would have paid in his or her home area for treatment. Defendants running this argument would therefore be well advised to have admissible evidence showing who could have provided this treatment, how far from the claimant’s address it could have been provided, what the cost of it would have been, and that they would have paid for the treatment themselves. This evidence must also clearly show the position during the period following the accident, not on some random day months or years into the future.

It is worth remembering that, as with credit hire cases, this is at least arguably a point in mitigation, and that the defendant bears the burden of proving that the claimant could have obtained treatment more cheaply. (This issue applies notwithstanding the requirement in section 5.9 on the reporting agency to
“ensure that all invoices are within reasonable market rates”, or section 6.1’s comment that “the compensator will not be required to pay for treatment that is unreasonable in nature, content or cost”, as the defendant will bear at least a practical burden to show what was reasonable.) These principles will apply to any case where the defendant wishes to challenge the rate at which treatment has been charged, whether or not by reference to the provisions of the Code.

It should also be remembered that section 6.2 requires a defendant to respond within 15 days of disclosure of the triage report, setting out (i) the extent to which the recommendations have been accepted and rehabilitation treatment will be funded, and (ii) justifications for any refusal to meet the cost of recommended rehabilitation and (if appropriate) alternative recommendations. While a claimant who begins treatment, without awaiting this response, is expressly reminded about the risk of not recovering the costs of treatment as a result, the 15 day time limit at least implies how long a claimant is obliged to wait before pressing ahead. A defendant who is tardy in responding to a request for rehabilitation may therefore have difficulty persuading a court that damages for the costs should be limited, even if it can show that treatment could have in fact been provided to the claimant at a lower or no cost.

The specific steps envisaged by the Code, and recovering the costs of these

According to section 4.4 of the Code,

“Unless there is a medico-legal report containing full recommendations for rehabilitation, which both parties are happy to adopt, an initial Triage Report should be obtained to establish the type of treatment needed. In most cases, the Triage Report will be the only report required”.


Section 4.8 envisages that “the assessment agency will be asked to carry out the Triage Report in a way that is appropriate to the needs of the case, which will in most cases be a telephone interview within seven days of the referral being received by the agency”. The report is expected to be “very simple, usually just an email”. The Code envisages that (in section 4.4) that assessment and discharge reports may be required, but only where the parties agree this.

Counter-intuitively, perhaps, when it is not always easy to see how any sort of effective planning can be done for treatment when the claimant is not seen in person, the Code seems to envisage that he default position will be triage by telephone, rather than an assessment report in person. This, however, is likely to be to the defendant’s benefit, as the cost will usually be lower. The Code provides fairly strong support for an argument that an assessment and discharge report should not, in the standard lower-value case at least, be necessary (at least, without the defendant’s agreement in advance to them being produced). If the reports are not generally necessary, it seems to follow that assessment and discharge sessions – regularly charged at above the rate for a standard treatment session – are unnecessary as well.

The obligation to disclose rehabilitation reports
Contrary to the stance commonly taken by claimant solicitors, section 4.9 is unequivocal about the need to disclose reports:

“In all cases, the [triage report] should be published simultaneously or made available immediately by the instructing party to the other side. This applies also to treatment reports [and discharge reports] where the parties have agreed that they are required.”


The bar (in section 4.10) to using the triage report, or any other documents produced during the triage process, in litigation (which does not apply to any assessment or discharge reports – see section 5.7) does not detract from the disclosure requirement. Questionning whether it was necessary to obtain the report, and incur the cost of doing so, is arguably not using the report itself in litigation.

A useful by-product of the disclosure requirement is section 4.9’s recognition that “both parties will have the right to raise questions on the report(s), disclosing such correspondence to the other party”. A defendant, in other words, need not sit there like a lemon when the report is produced, but can ask the treatment provider to explain, for example, why any therapy is required, why a particular amount of therapy is required, or why some cheaper treatment is not sufficient, not least because the triage report should include (among other things) the type of intervention or treatment recommended, the likely cost and duration of treatment, and the expected outcome of such intervention or treatment (section 5.2). Another potential avenue for exploration is envisaged by section 4.11 – the extent of treatment necessary due to the index accident, rather than any other condition.

Indeed, nothing in the Code or the Protocols seems to prevent a defendant from adducing evidence from another provider to suggest, not just that therapy could have been provided at a lower cost, but also that a lesser amount or different type of therapy would have been reasonable.

Many defendants have chosen to concentrate their fire in rehab arguments on claimants’ (admittedly frequent) failure to disclose discharge reports. In the absence of such a report, it is frequently argued that there is insufficient evidence about the nature of the treatment provided (in particular, whether it was provided in person); who provided it (in particular, whether the person in question was HCPC-registered); what the extent and duration of treatment were; whether any treatment was in fact provided by the provider charging for it; and what the specific cost of the treatment to the claimant was, and that rehab charges should be disallowed as a consequence.

When a discharge report has been produced, it is difficult to see how the claimant can avoid disclosing it (pursuant to section 4.9). However, it has to be remembered that section 4.4 (and section 5.6) make a discharge report optional, and indeed something which should usually be provided only if the defendant agrees to it. It should also be borne in mind that the requirements set out in section 5.6 for the contents of any discharge report do not (apart from “[N]umber, type and length of treatment sessions / appointments attended or missed”) include many of the usual defendant requirements, as set out above (and that the other provisions of the Code do not impose any of these requirements either). Again, the primary purpose of the Code, as reflected in section 5.6, seems to be assessing the claimant’s progress, rather than laying out prescriptive requirements if damages are to be recovered for treatment (let alone setting out a ticklist which the defendant can use, if not complied with, to undermine the damages claim).

In light of these factors, and in light in particular of the absence of any express sanction for failing to disclose a discharge report, the Code seems to provide at best tangential support for an argument that such a failure should affect the recoverability of the overall rehabilitation fees (though, if a claimant does not disclose a report, it is easy to see how this would justify damages being denied for the cost of preparing such a report, or for a discharge appointment). This is not to say that the absence of a discharge report – where the defendant has asked for such a report to be prepared at the appropriate point in time – will never be relevant. Cases may arise where its absence will undermine a claim for rehab costs, but probably only in conjunction with other evidence in the case (for example, a failure to disclose other reports or details of treatment, an absence of other evidence post-dating the completion of treatment to show the extent and cost of treatment, and / or the notorious “pro forma invoice”, or other document charging for costs not yet incurred).

Other procedural steps when contesting rehabilitation claims
Defendants must remember that, in their enthusiasm to follow arguments arising from the Code, they must still meet the relevant procedural and evidential requirements if they are to do so effectively. In the context of lower value, quantum only disputes, this means complying with the relevant portal procedure.

All the ingenuity in the world in raising arguments will count for naught if the defendant fails to explain in its stage 2 response why it has reduced a claim for rehab costs (see para 7.41 of the RTA Protocol), if it fails to submit at stage 2 any necessary evidence in support of this, and if it fails to ensure that the relevant reasons and evidence are contained in the Court Proceedings Pack (see para.s 7.64 to 7.67). Rather than trying to squeeze a few shorthand comments into the response form, a document setting out in detail the defendant’s objections may be more persuasive (again, so long as the defendant makes sure that this document is submitted at stage 2 and included in the Court Proceedings Pack).

It is worth bearing in mind that the judges dealing with busy stage 3 lists are unlikely to display the same enthusiasm in determining detailed arguments about recovery of rehab costs as defendants may have for pursuing them. In the eyes of the senior courts, too, the stage 3 procedure is expressly designed to provide summary justice, rather than a microscopic means of evaluating relatively small disputes between parties over the value of cases (see, for example, Phillips v Willis [2016] EWCA Civ 401). A judge itching to get through a stage 3 list is unlikely to even allow an argument to be raised if every procedural i and t have not been respectively dotted and crossed during the the portal procedure. Even if this bridge can be crossed, he or she is unlikely to be interested in a panoply of standard arguments without relevance to the circumstances of the particular case. A sniper-like concentration on the best arguments on the specific evidence is likely to reap more rewards than the legal equivalent of a 21 gun salute.


In summary, the Rehabilitation Code is unlikely to provide the panacea defendants seek to the spiralling cost of treatment. However, sensibly deployed on a proper procedural basis, in conjunction with the other approaches considered in this article (and in conjunction too with some other issues which can arise with rehab costs, for example enforceability arguments when treatment is expressly provided on a credit basis), the Code may provide another useful weapon in the defendant’s armoury.

Chris Middleton