The Code is voluntary, but it is recognised by the relevant personal injury Pre-Action Protocols. Its purpose is not to determine damages. It provides a framework in which the claimant’s solicitor and the compensator can address health, independence, quality of life and return to work while the compensation claim continues. The Code places its aims above strict adherence to a prescribed process and permits the parties to agree another framework where that would better achieve early rehabilitation.
That flexibility is one of its strengths. It is also the reason the Code can be honoured in correspondence while being ignored in substance.
Rehabilitation begins before the expert report.
The most common mistake is waiting for medico-legal evidence before asking what the claimant needs.
The Code does not require an expert report at the initial stage. The claimant’s solicitor should discuss rehabilitation with the claimant or family as soon as practicable, considering immediate treatment, aids, adaptations and employment adjustments. The compensator needs enough information to make a reasoned decision, including the functional effect of the injuries and the nature of any continuing disability. This demands more than writing “physiotherapy may be required” on a notification form. A useful request explains what the claimant cannot presently do, what treatment has already been offered, whether work is at risk and what delay is likely to mean in practical terms.
The compensator has a corresponding responsibility to consider rehabilitation from the earliest practicable stage. When a claimant solicitor makes a rehabilitation request, the Code provides for a response within 21 days, either accepting it or giving reasons for refusal. The process can continue even where liability has not been agreed. In severe cases, waiting for a final liability position may sacrifice the period in which intervention could do best.
Lower-value claims still require judgement.
For lower-value injuries, the Code generally anticipates a proportionate triage process. Where an existing medico-legal report does not contain recommendations that both parties are prepared to adopt, an initial Triage Report may identify the treatment required. The assessment will often be brief and may be conducted by telephone. Brief does not mean careless.
The assessor should be appropriately qualified, experienced and subject to suitable clinical governance. The triage provider should ordinarily be independent of any organisation that supplied the medico-legal report. Any direct or indirect business connection with the solicitor or compensator should be disclosed and agreed before instruction. The report is intended to sit outside the litigation process. It should address rehabilitation rather than liability, diagnosis or prognosis. Neither party should use the triage exercise as a covert means of gathering evidence for the claim. The task is to identify need, not to strengthen one side’s forensic position.
In practice, that separation is sometimes blurred. A document becomes problematic when it reads like a miniature expert report, comments on credibility or records an unnecessarily detailed account of the accident. Treatment providers and assessors must understand the purpose for which they have been instructed.
Following disclosure of the Triage Report, the compensator should respond within days, stating what treatment will be funded and explaining any refusal. The claimant may begin treatment beforehand but bears the risk that the cost will not be recovered unless funding has been agreed.
Serious injury requires more than a referral.
For medium, severe and catastrophic injury, the Code envisages an Immediate Needs Assessment carried out by a suitably qualified case manager or rehabilitation professional. The parties should try to agree the assessor, the instructions and the method of referral, subject always to the claimant’s agreement. The quality of the assessment depends heavily on the quality of the instruction.
A case manager cannot produce an individual plan from a generic referral and an incomplete bundle. Where possible, they should communicate with NHS clinicians and review relevant discharge information, treatment records and existing recommendations. The plan should identify specific and attainable goals, expected duration, likely cost and anticipated clinical or return-to-work outcomes.
An Immediate Needs Assessment is not a diagnosis, prognosis or opinion on legal liability. Its purpose is to examine medical and social need and recommend treatment. The Code anticipates that, in most cases, the assessment and report will be completed within 21 days of referral. The compensator should then respond within 21 days, identifying the recommendations accepted, the funding offered and the reasons for any refusal.
The case manager’s relationship with the claimant is therapeutic. Their independence should not change according to which party pays the invoice. A business connection with either side should be revealed at the earliest opportunity.
Where practice goes wrong
The Code works badly when rehabilitation is treated as an administrative stage rather than a continuing clinical process.
One failure is delay disguised as investigation. Another is approving a predetermined number of sessions without considering whether the treatment matches the claimant’s actual barriers to recovery. In more complex cases, concentrating upon one therapy while ignoring psychological symptoms, housing, mobility, family demands or vocational needs produces a plan that appears active but changes little.
There is also a tendency to confuse funding with control. The claimant is not obliged to undergo treatment. Recommendations should be discussed with the claimant, aligned where possible with existing NHS care and reviewed as circumstances change. Rehabilitation imposed without informed participation is unlikely to succeed.
Conversely, the compensator is not required to pay for treatment that is unreasonable in nature, content or cost. Collaboration does not mean accepting every recommendation without question. It means addressing disagreement promptly, providing reasons and proposing workable alternatives.
Agreed rehabilitation funding is generally not treated as recoverable from the claimant if the claim later fails, is discontinued or involves contributory negligence, unless fraud or fundamental dishonesty is proved. That protection matters because early treatment should not be paralysed by fear that the eventual liability decision may go the other way.
The Code is at its best when everyone remembers what it is for. It is not an early quantum exercise, a source of evidence or a convenient route to a preferred provider. It is a method of preventing the litigation timetable from becoming the claimant’s treatment timetable.
A claim can be valued later. Lost rehabilitation time is not so easily restored.
