Mrs Justice Lambert DBE has handed down her judgment, following a hearing in July 2023, making a declaration clarifying the calculation to be used where there has been a second/subsequent reclassification of ASHE 6115 (In the Part 8 Claim brought by the National Health Services Litigation Authority, Re ASHE 6115 and the Second Reclassification [2023] EWHC 2959 (KB)). 

Many periodical payments are indexed by reference to ASHE 6115, the standard occupational category for Care Assistance and Home workers as published annually by the Office of National Statistics. Two sets of data are published: the “first release” figures for the year of publication and the “revised” figures for the previous year. Both figures are used in calculating the annual payment due to claimants by way of a periodical payment linked to ASHE 6115. 

The standard occupational codes (SOC) are, however, subject to reclassification every decade and the weighting used for the new classifications differ. This means that figures under the new classification are not like for like with the original figures agreed. 

The first reclassification following the drafting of the model order was in 2010. However, the Office of National Statistics (ONS), did not publish all of the data that had been anticipated in the model order causing an issue with the calculation to be used. An amendment to the model order was therefore made to to allow reclassification calculations to be undertaken using the data that the ONS actually published (RH v University Hospitals Bristol NHS Trust [2013] EWHC 29 (QB)).

This amendment dealt only with the issue of the first reclassification. It came to light following the second reclassification in 2020 that where reclassification was being undertaken for the second time, the wording in the model order provides for the reclassification to be undertaken using the gross hourly wage rate for ASHE 6115 at the time of settlement, rather than the gross wage rate applied following reclassification in 2010. Evidence was provided to the court that this was not the intention of those involved in RH and that the intention was that the gross wage rate following reclassification in 2010 should be used. 

Accordingly in this decision, in order to rectify this drafting issue, Mrs Justice Lambert DBE has made the declaration that the following words be inserted into the model order at paragraph 6.1.3:

1. “and A will be the numerical value of AR calculated when reclassification last occurred.” 

No formal amendment is required to existing PPOs: Mrs Justice Lambert DBE confirms that all is required is acceptance by the claimant or Deputy that the amendment is applicable in his/her case. This itself does not need to be positive acceptance, rather the absence of objection. 

She also leaves room for further amendments to be made to the model order in due course should further issues become apparent.