Social Security Administration (Northern Ireland) Act 1992 (c. 8)

(The document as of February, 2008)

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(g) the [S.I. 1975/1504 (N.I. 16).] Child Benefit (Northern Ireland) Order 1975;

(h) the [1971 c. 8 (N.I.).] Family Income Supplements Act (Northern Ireland) 1971;

(i) the [S.I. 1977/2156 (N.I. 27).] Supplementary Benefits (Northern Ireland) Order 1977;

(j) the Contributions and Benefits Act;

(k) this Act.

Part IIIII Overpayments and Adjustments of Benefit

Misrepresentation etc.

69 Overpayments - general

(1) Where it is determined that, whether fraudulently or otherwise, any person has misrepresented, or failed to disclose, any material fact and in consequence of the misrepresentation or failure--

(a) a payment has been made in respect of a benefit to which this section applies; or

(b) any sum recoverable by or on behalf of the Department in connection with any such payment has not been recovered,

the Department shall be entitled to recover the amount of any payment which the Department would not have made or any sum which the Department would have received but for the misrepresentation or failure to disclose.

(2) Where any such determination as is referred to in subsection (1) above is made on an appeal or review, there shall also be determined in the course of the appeal or review the question whether any, and if so what, amount is recoverable under that subsection by the Department.

(3) An amount recoverable under subsection (1) above is in all cases recoverable from the person who misrepresented the fact or failed to disclose it.

(4) In relation to cases where payments of a benefit to which this section applies have been credited to a bank account or other account under arrangements made with the agreement of the beneficiary or a person acting for him, circumstances may be prescribed in which the Department is to be entitled to recover any amount paid in excess of entitlement; but any such regulations shall not apply in relation to any payment unless before he agreed to the arrangements such notice of the effect of the regulations as may be prescribed was given in such manner as may be prescribed to the beneficiary or to a person acting for him.

(5) Except where regulations otherwise provide, an amount shall not be recoverable under subsection (1) above or regulations under subsection (4) above unless--

(a) the determination in pursuance of which it was paid has been reversed or varied on an appeal or revised on a review; and

(b) it has been determined on the appeal or review that the amount is so recoverable.

(6) Regulations may provide--

(a) that amounts recoverable under subsection (1) above or regulations under subsection (4) above shall be calculated or estimated in such manner and on such basis as may be prescribed;

(b) for treating any amount paid to any person under an award which it is subsequently determined was not payable--

(i) as properly paid; or

(ii) as paid on account of a payment which it is determined should be or should have been made,

and for reducing or withholding any arrears payable by virtue of the subsequent determination;

(c) for treating any amount paid to one person in respect of another as properly paid for any period for which it is not payable in cases where in consequence of a subsequent determination--

(i) the other person is himself entitled to a payment for that period; or

(ii) a third person is entitled in priority to the payee to a payment for that period in respect of the other person,

and for reducing or withholding any arrears payable for that period by virtue of the subsequent determination.

(7) Circumstances may be prescribed in which a payment on account by virtue of section 5(1)(s) above may be recovered to the extent that it exceeds entitlement.

(8) Where any amount paid is recoverable under--

(a) subsection (1) above;

(b) regulations under subsection (4) or (7) above; or

it may, without prejudice to any other method of recovery, be recovered by deduction from prescribed benefits.

(9) Where any amount paid in respect of a married or unmarried couple is recoverable as mentioned in subsection (8) above, it may, without prejudice to any other method of recovery, be recovered, in such circumstances as may be prescribed, by deduction from prescribed benefits payable to either of them.

(10) Any amount recoverable under the provisions mentioned in subsection (8) above shall, if the county court so orders, be enforceable as if it were payable under an order of that court.

(11) This section applies to the following benefits--

(a) benefit as defined in section 121 of the Contributions and Benefits Act;

(b) subject to section 70 below, income support;

(d) disability working allowance;

(e) any social fund payments such as are mentioned in section 134(1)(a) or (2) of the Contributions and Benefits Act; and

(f) child benefit.

70 Special provision as to recovery of income support

(1) Where--

(a) a direction under section 124(1) of the Contributions and Benefits Act is revoked; and

(b) it is determined by an adjudication officer that, whether fraudulently or otherwise, any person has misrepresented, or failed to disclose, any material fact and in consequence of the misrepresentation or failure a payment of income support has been made during the relevant period to the person to whom the direction related,

an adjudication officer may determine that the Department shall be entitled to recover the amount of the payment.

(2) In subsection (1) above "the relevant period" means--

(a) if the revocation is under subsection (3) of section 124 of the Contributions and Benefits Act, the period beginning with the date of the change of circumstances and ending with the date of the revocation; and

(b) if the revocation is under subsection (4) of that section, the period during which the direction was enforced.

(3) Where a direction under section 124(1) of the Contributions and Benefits Act is revoked, the Department may certify whether there has been misrepresentation of a material fact or failure to disclose a material fact.

(4) If the Department certifies that there has been such misrepresentation or failure to disclose, it may also certify--

(a) who made the misrepresentation or failed to make the disclosure; and

(b) whether or not a payment of income support has been made in consequence of the misrepresentation or failure.

(5) If the Department certifies that a payment has been made, it may certify the period during which income support would not have been paid but for the misrepresentation or failure to disclose.

(6) A certificate under this section shall be conclusive for the purposes of this section as to any matter certified.

(7) Section 69(3) and (6) to (11) above apply to income support recoverable under subsection (1) above as they apply to income support recoverable under section 69(1) above.

(8) The other provisions of section 69 above do not apply to income support recoverable under subsection (1) above.

Adjustments of benefits

71 Overlapping benefits - general

(1) Regulations may provide for adjusting benefit as defined in section 121 of the Contributions and Benefits Act which is payable to or in respect of any person, or the conditions for its receipt, where--

(a) there is payable in his case any such pension, allowance or benefit as is described in subsection (2) below; or

(b) the person is, or is treated under the regulations as, undergoing medical or other treatment as an in-patient in a hospital or similar institution.

(2) Subsection (1)(a) above applies to any pension, allowance or benefit payable out of public funds (including any other benefit as so defined, whether it is of the same or a different description) which is payable to or in respect of--

(a) the person referred to in subsection (1);

(b) that person's wife or husband;

(d) the wife or husband of any adult dependant of that person.

(3) Where but for regulations made by virtue of subsection (1)(a) above two persons would both be entitled to an increase of benefit in respect of a third person, regulations may make provision as to their priority.

(4) Regulations may provide for adjusting benefit payable to or in respect of any person where there is payable in his case any such benefit as is described in subsection (5) below.

(5) Subsection (4) above applies to any benefit payable under the legislation of any member State other than the United Kingdom which is payable to or in respect of--

(a) the person referred to in that subsection;

(b) that person's wife or husband;

(d) the wife or husband of any adult dependant of that person.

72 Income support and other payments

(1) Where--

(a) a payment by way of prescribed income is made after the date which is the prescribed date in relation to the payment; and

(b) it is determined that an amount which has been paid by way of income support would not have been paid if the payment had been made on the prescribed date,

the Department shall be entitled to recover that amount from the person to whom it was paid.

(2) Where--

(a) a prescribed payment which apart from this subsection falls to be made from public funds in the United Kingdom or under the law of any other member State is not made on or before the date which is the prescribed date in relation to the payment; and

(b) it is determined that an amount ("the relevant amount") has been paid by way of income support that would not have been paid if the payment mentioned in paragraph (a) above had been made on the prescribed date,

then--

(i) in the case of a payment from public funds in the United Kingdom, the authority responsible for making it may abate it by the relevant amount; and

(ii) in the case of any other payment, the Department shall be entitled to receive the relevant amount out of the payment.

(3) Where--

(a) a person (in this subsection referred to as A) is entitled to any prescribed benefit for any period in respect of another person (in this subsection referred to as B); and

(b) either--

(i) B has received income support for that period; or

(ii) B was, during that period, a member of the same family as some person other than A who received income support for that period; and

(c) the amount of the income support has been determined on the basis that A has not made payments for the maintenance of B at a rate equal to or exceeding the amount of the prescribed benefit,

the amount of the prescribed benefit may, at the discretion of the authority administering it, be abated by the amount by which the amounts paid by way of income support exceed what it is determined that they would have been had A, at the time the amount of the income support was determined, been making payments for the maintenance of B at a rate equal to the amount of the prescribed benefit.

(4) Where an amount could have been recovered by abatement by virtue of subsection (2) or (3) above but has not been so recovered, the Department may recover it otherwise than by way of abatement--

(a) in the case of an amount which could have been recovered by virtue of subsection (2) above, from the person to whom it was paid; and

(b) in the case of an amount which could have been recovered by virtue of subsection (3) above, from the person to whom the prescribed benefit in question was paid.

(5) Where a payment is made in a currency other than sterling, its value in sterling shall be determined for the purposes of this section in accordance with regulations.

Housing benefit

73 Overpayments of housing benefit

(1) Except where regulations otherwise provide, any amount of housing benefit paid in excess of entitlement may be recovered by the Department, the Department of the Environment or by the Housing Executive in such manner as may be prescribed.

(2) Regulations may require the Department of the Environment or the Housing Executive to recover such an amount in such circumstances as may be prescribed.

(3) An amount recoverable under this section is in all cases recoverable from the person to whom it was paid; but, in such circumstances as may be prescribed, it may also be recovered from such other person as may be prescribed.

(4) Any amount recoverable under this section may, without prejudice to any other method of recovery, be recovered by deduction from prescribed benefits.

Social fund awards

74 Recovery of social fund awards

(1) A social fund award which is repayable shall be recoverable by the Department.

(2) Without prejudice to any other method of recovery, the Department may recover an award by deduction from prescribed benefits.

(3) The Department may recover an award--

(a) from the person to or for the benefit of whom it was made;

(b) where that person is a member of a married or unmarried couple, from the other member of the couple;

(c) from a person who is liable to maintain the person by or on behalf of whom the application for the award was made or any person in relation to whose needs the award was made.

(4) Payments to meet funeral expenses may in all cases be recovered, as if they were funeral expenses, out of the estate of the deceased, and (subject to section 69 above) by no other means.

(5) In this section--

"married couple" means a man and woman who are married to each other and are members of the same household;
"unmarried couple" means a man and woman who are not married to each other but are living together as husband and wife otherwise than in prescribed circumstances within the meaning of section 133 of the Contributions and Benefits Act.

(6) For the purposes of this section--

(a) a man shall be liable to maintain his wife and any children of whom he is the father;

(b) a woman shall be liable to maintain her husband and any children of whom she is the mother;

(c) a person shall be liable to maintain another person throughout any period in respect of which the [S.I. 1980/870 (N.I. 8).] first-mentioned person has, on or after 24th June 1980 (the date of the making of the Social Security (Northern Ireland) Order 1980) and either alone or jointly with a further person, given an undertaking in writing in pursuance of immigration rules within the meaning of the [1971 c. 77.] Immigration Act 1971 to be responsible for the maintenance and accommodation of the other person; and

(d) "child" includes a person who has attained the age of 16 but not the age of 19 and in respect of whom either parent, or some person acting in the place of either parent, is receiving income support.

(7) In subsection (6) above--

(a) the reference to children of whom the man is the father includes a reference to children of whom he has been adjudged to be the father;

(b) the reference to children of whom the woman is the mother includes a reference to her illegitimate children.

(8) A document bearing a certificate which--

(a) is signed by a person authorised in that behalf by the Secretary of State; and

(b) states that the document apart from the certificate is, or is a copy of, such an undertaking as is mentioned in subsection (6)(c) above,

shall be conclusive of the undertaking in question for the purposes of this section and section 101 below; and a certificate purporting to be so signed shall be deemed to be so signed until the contrary is proved.

Great Britain payments

75 Recovery of Great Britain payments

Without prejudice to any other method of recovery--

(a) amounts recoverable under any statutory provision having effect in Great Britain and corresponding to a statutory provision mentioned in section 69(8) above shall be recoverable by deduction from benefits prescribed under that subsection;

(b) amounts recoverable under any statutory provision having effect in Great Britain and corresponding to section 73 above shall be recoverable by deduction from benefits prescribed under subsection (4) of that section; and

(c) amounts recoverable under Part III of the Great Britain Administration Act shall be recoverable by deduction from benefits prescribed under subsection (2) of section 74 above and subsection (3) of that section shall have effect in relation to such awards as it has effect in relation to awards out of the social fund under this Act.

Adjustment of child benefit

76 Child benefit - overlap with benefits under legislation of other member States

Regulations may provide for adjusting child benefit payable in respect of any child in respect of whom any benefit is payable under the legislation of any member State other than the United Kingdom.

Part IVPart IV Recovery from Compensation Payments

77 Interpretation of Part IV

(1) In this Part of this Act--

"benefit" means any benefit under the Contributions and Benefits Act except child benefit and, subject to regulations under subsection (2) below, the "relevant benefits" are such of those benefits as may be prescribed for the purposes of this Part of this Act;
"certificate of deduction" means a certificate given by the compensator specifying the amount which he has deducted and paid to the Department in pursuance of section 78 below;
"certificate of total benefit" means a certificate given by the Department in accordance with this Part of this Act;
"compensation payment" means any payment falling to be made (whether voluntarily, or in pursuance of a court order or an agreement, or otherwise)--
(a)
to or in respect of the victim in consequence of the accident, injury or disease in question, and
(b)
either--
(c)
by or on behalf of a person who is, or is alleged to be, liable to any extent in respect of that accident, injury or disease; or
(ii)
in pursuance of a compensation scheme for motor accidents,

but does not include benefit or an exempt payment or so much of any payment as is referable to costs incurred by any person;
"compensation scheme for motor accidents" means any scheme or arrangement under which funds are available for the payment of compensation in respect of motor accidents caused, or alleged to have been caused, by uninsured or unidentified persons;
"compensator", "victim" and "intended recipient" shall be construed in accordance with section 78(1) below;
"payment" means payment in money or money's worth, and cognate expressions shall be construed accordingly;
"the recoupment provisions" means this Part and section 101 of the Great Britain Administration Act;
"relevant deduction" means the deduction required to be made from the compensation payment in question by virtue of the recoupment provisions;
"relevant payment" means the payment required to be made to the Department by virtue of the recoupment provisions;
"relevant period" means--
(a)
in the case of a disease, the period of 5 years beginning with the date on which the victim first claims a relevant benefit in consequence of the disease; or
(b)
in any other case, the period of 5 years immediately following the day on which the accident or injury in question occurred;

but where before the end of that period the compensator makes a compensation payment in final discharge of any claim made by or in respect of the victim and arising out of the accident, injury or disease, the relevant period shall end on the date on which that payment is made;
"total benefit" means the gross amount referred to in section 78(1)(a) below.

(2) If statutory sick pay is prescribed as a relevant benefit, the amount of that benefit for the purposes of this Part of this Act shall be a reduced amount determined in accordance with regulations by reference to the percentage from time to time specified in section 154(1)(a) of the Contributions and Benefits Act (percentage of statutory sick pay recoverable by employers by deduction from contributions).

(3) For the purposes of this Part of this Act the following are the "exempt payments"--

(a) any small payment, as defined in section 81 below;

(b) any payment made to or for the victim under Article 3 of the [S.I. 1980/704 (N.I. 6).] Criminal Justice (Northern Ireland) Order 1980 ;

(i) in consequence of an action under the [S.I. 1977/1251 (N.I. 18).] Fatal Accidents (Northern Ireland) Order 1977; or

(ii) in circumstances where, had an action been brought, it would have been brought under that Order;

(d) without prejudice to section 6(4) of the [1979 c. 17.] Vaccine Damage Payments Act 1979 (which provides for the deduction of any such payment in the assessment of any award of damages), any payment made under that Act to or in respect of the victim;

(e) any award of compensation made to or in respect of the victim by the Secretary of State under Article 3 or 10 of the [S.I. 1988/793 (N.I. 4).] Criminal Injuries (Compensation) (Northern Ireland) Order 1988;

(f) any payment made in the exercise of a discretion out of property held subject to a trust in a case where no more than 50 per cent. by value of the capital contributed to the trust was directly or indirectly provided by persons who are, or are alleged to be, liable in respect of--

(i) the accident, injury or disease suffered by the victim in question; or

(ii) the same or any connected accident, injury or disease suffered by another;

(g) any payment made out of property held for the purposes of any prescribed trust (whether the payment also falls within paragraph (f) above or not);

(h) any payment made to the victim by an insurance company within the meaning of the [1982 c. 50.] Insurance Companies Act 1982 under the terms of any contract of insurance entered into between the victim and the company before--

(i) the date on which the victim first claims a relevant benefit in consequence of the disease in question; or

(ii) the occurrence of the accident or injury in question;

(i) any redundancy payment falling to be taken into account in the assessment of damages in respect of an accident, injury or disease.

(4) Regulations may provide that any prescribed payment shall be an exempt payment for the purposes of this Part of this Act.

(5) Except as provided by any other statutory provision, in the assessment of damages in respect of an accident, injury or disease the amount of any relevant benefits paid or likely to be paid shall be disregarded.

(6) If, after making the relevant deduction from the compensation payment, there would be no balance remaining for payment to the intended recipient, any reference in this Part to the making of the compensation payment shall be construed in accordance with regulations.

(7) This Part of this Act shall apply in relation to any compensation payment made after 3rd September 1990 (the date of the coming into operation of Article 24 of the [S.I. 1989/1342 (N.I. 13).] Social Security (Northern Ireland) Order 1989 which, with Schedule 4 to that Order, made provision corresponding to that made by this Part) to the extent that it is made in respect of--

(a) an accident or injury occurring on or after 1st January 1989; or

(b) a disease, if the victim's first claim for a relevant benefit in consequence of the disease is made on or after that date.

Recovery from damages, etc. of sums equivalent to benefit

78 Recovery of sums equivalent to benefit from compensation payments in respect of accidents, injuries and diseases

(1) A person ("the compensator") making a compensation payment, whether on behalf of himself or another, in consequence of an accident, injury or disease suffered by any other person ("the victim") shall not do so until the Department has furnished him with a certificate of total benefit and shall then--

(a) deduct from the payment an amount, determined in accordance with the certificate of total benefit, equal to the gross amount of any relevant benefits paid or likely to be paid to or for the victim during the relevant period in respect of that accident, injury or disease;

(b) pay to the Department an amount equal to that which is required to be so deducted; and

(c) furnish the person to whom the compensation payment is or, apart from this section, would have been made ("the intended recipient") with a certificate of deduction.

(2) Any right of the intended recipient to receive the compensation payment in question shall be regarded as satisfied to the extent of the amount certified in the certificate of deduction.

Payments, deductions and certificates

79 Time for making payment to Department

The compensator's liability to make the relevant payment arises immediately before the making of the compensation payment, and he shall make the relevant payment before the end of the period of 14 days following the day on which the liability arises.

80 The certificate of total benefit

(1) It shall be for the compensator to apply to the Department for the certificate of total benefit and he may, subject to subsection (5) below, from time to time apply for fresh certificates.

(2) The certificate of total benefit shall specify--

(a) the amount which has been, or is likely to be, paid on or before a specified date by way of any relevant benefit which is capable of forming part of the total benefit;

(b) where applicable--

(i) the rate of any relevant benefit which is, has been, or is likely to be paid after the date so specified and which would be capable of forming part of the total benefit; and

(ii) the intervals at which any such benefit is paid and the period for which it is likely to be paid;

(c) the amounts (if any) which, by virtue of the recoupment provisions, are to be treated as increasing the total benefit; and

(d) the aggregate amount of any relevant payments made on or before a specified date (reduced by so much of that amount as has been paid by the Department to the intended recipient before that date in consequence of the recoupment provisions).

(3) On issuing a certificate of total benefit, the Department shall be taken to have certified the total benefit as at every date for which it is possible to calculate an amount that would, on the basis of the information so provided, be the total benefit as at that date, on the assumption that payments of benefit are made on the days on which they first become payable.

(4) The Department may estimate, in such manner as it thinks fit, any of the amounts, rates or periods specified in the certificate of total benefit.

(5) A certificate of total benefit shall remain in force until such date as may be specified in the certificate for that purpose and no application for a fresh certificate shall be made before that date.

(6) Where a certificate ceases to be in force, the Department may issue a fresh certificate, whether or not an application has been made to it for such a certificate.

(7) The compensator shall not make the compensation payment at any time when there is no certificate of total benefit in force in respect of the victim, unless his liability to make the relevant deduction and the relevant payment has ceased to be enforceable by virtue of section 92 below.

81 Exemption from deduction in cases involving small payments

(1) Regulations may make provision exempting persons from liability to make the relevant deduction or the relevant payment in prescribed cases where the amount of the compensation payment in question, or the aggregate amount of two or more connected compensation payments, does not exceed the prescribed sum.

(2) Regulations may make provision for cases where an amount has been deducted and paid to the Department which, by virtue of regulations under subsection (1) above, ought not to have been so deducted and paid, and any such regulations may, in particular, provide for the Department to pay that amount to the intended recipient or the compensator or to pay a prescribed part of it to each of them.

(3) The reference in section 77(3)(a) above to a "small payment" is a reference to a payment from which by virtue of this section no relevant deduction falls to be made.

(4) For the purposes of this section--

(a) two or more compensation payments are "connected" if each is made to or in respect of the same victim and in respect of the same accident, injury or disease; and

(b) any reference to a compensation payment is a reference to a payment which would be such a payment apart from section 77(3)(a) above.

82 Multiple compensation payments

(1) This section applies where--

(a) a compensation payment (an "earlier payment") has been made to or in respect of the victim; and

(b) subsequently another such payment (a "later payment") falls to be made to or in respect of the same victim in respect of the same accident, injury or disease (whether by the same or another compensator).

(2) In determining the amount of the relevant deduction and payment required to be made in connection with the later payment, the amount referred to in section 78(1)(a) above shall be reduced by the amount of any relevant payment made in connection with the earlier payment, or, if more than one, the aggregate of those relevant payments.

(3) In relation to the later payment, the compensator shall take the amount of the reduction required by subsection (2) above to be such as may be specified under section 80(2)(d) above in the certificate of total benefit issued to him in connection with that later payment.

(4) In any case where--

(a) the relevant payment made in connection with an earlier payment is not reflected in the certificate of total benefit in force in relation to a later payment, and

(b) in consequence, the aggregate of the relevant payments made in relation to the later payment and every earlier payment exceeds what it would have been had that relevant payment been so reflected,

the Department shall pay the intended recipient an amount equal to the excess.

(5) In determining any rights and liabilities in respect of contribution or indemnity, relevant payments shall be treated as damages paid to or for the intended recipient in respect of the accident, injury or disease in question.

83 Collaboration between compensators

(1) This section applies where compensation payments in respect of the same accident, injury or disease fall (or apart from the recoupment provisions would fall) to be made to or in respect of the same victim by two or more compensators.

(2) Where this section applies, any two or more of those compensators may give the Department notice that they are collaborators in respect of compensation payments in respect of that victim and that accident, injury or disease.

(3) Where such a notice is given and any of the collaborators makes a relevant payment in connection with such a compensation payment, each of the other collaborators shall be treated as if the aggregate amount of relevant payments specified in his certificate of total benefit, as in force at the time of that relevant payment, or in a fresh certificate which does not purport to reflect the payment, were increased by the amount of that payment.

84 Structured settlements

(1) This section applies where--

(a) in final settlement of a person's claim, an agreement is entered into--

(i) for the making of periodical payments (whether of an income or capital nature) to or in respect of the victim; or

(ii) for the making of such payments and one or more lump sum payments; and

(b) apart from this section, those payments would fall to be regarded for the purposes of the recoupment provisions as compensation payments.

(2) Where this section applies, the recoupment provisions (other than this section) shall have effect on the following assumptions, that is to say--

(a) the relevant period in the case of the compensator in question shall be taken to end (if it has not previously done so) on the day of settlement;

(b) the compensator in question shall be taken--

(i) to have been liable to make on that day a single compensation payment of the amount referred to in section 78(1)(a) above (reduced or increased in accordance with such of the recoupment provisions as would have applied in the case of a payment on that day); and

(ii) to have made from that single payment a relevant deduction of an amount equal to it; and

(3) The intended recipient shall not by virtue of anything in this section become entitled to be paid any sum, whether by the compensator or the Department, and if on a review or appeal under section 93 or 95 below it appears that the amount paid by a compensator in pursuance of this section was either greater or less than it ought to have been, then--

(a) any excess shall be repaid to the compensator instead of to the intended recipient; but

(b) any deficiency shall be paid to the Department by the intended recipient.

(4) Where any further compensation payment falls to be made to or in respect of the victim otherwise than under the agreement in question, subsection (2)(a) above shall be disregarded for the purpose of determining the end of the relevant period in relation to that further payment.

(5) In any case where--

(a) the person making the periodical payments ("the secondary party") does so in pursuance of arrangements entered into with another (as in a case where an insurance company purchases an annuity for the victim from another such company), and

(b) apart from those arrangements, that other ("the primary party") would have been regarded as the compensator,

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