Mesothelioma Lump Sum Payments (Conditions and Amounts) (Amendment) Regulations 2022
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Baroness Stedman-Scott
That the Grand Committee do consider the Mesothelioma Lump Sum Payments (Conditions and Amounts) (Amendment) Regulations 2022.
The Parliamentary Under-Secretary of State, Foreign, Commonwealth and Development Office and Department for Work and Pensions (Baroness Stedman-Scott) (Con)
My Lords, these statutory instruments will increase the value of lump sum awards payable under the Pneumoconiosis etc. (Workers’ Compensation) Act 1979 and the diffuse mesothelioma payment scheme, which was established by the Child Maintenance and Other Payments Act 2008.
These two schemes stand apart from the main social security benefits uprating procedure. However, through these statutory instruments, we will increase the amounts payable by the September 2021 consumer prices index of 3.1%. This is the same rate that is being applied to industrial injuries disablement benefit and other disability benefits under the main social security uprating provisions. These new amounts will be paid to those who satisfy the conditions of entitlement for the first time on or after 1 April 2022.
The Government recognise the tremendous suffering of individuals and their families caused by the serious and often fatal diseases resulting from exposure to asbestos or other listed agents. The individuals affected, and their families, may not be able to bring a successful claim for civil damages in relation to their disease. This is mainly due to the long latency period of their condition and the fact that their former employer may no longer exist. They can, however, still claim compensation through these schemes.
These schemes also aim, where possible, to ensure that people with prescribed diseases receive compensation in their lifetime while they themselves can still benefit from it, without first having to await the outcome of civil litigation, which can take a long time. While improvements in health and safety procedures have restricted the use of asbestos and provided a safer environment for its handling, the legacy of its widespread use is still with us. That is why we are ensuring that financial compensation from these schemes is available to those affected.
I will briefly summarise the specific purpose of the two compensation schemes. The Pneumoconiosis etc. (Workers’ Compensation) Act 1979 scheme—which for simplicity I shall refer to as the 1979 Act scheme—provides a lump sum compensation payment to individuals who have one of five dust-related respiratory diseases covered by the scheme, who are unable to claim damages from employers because they have gone out of business and who have not brought any action against another party for damages. The five diseases covered by the 1979 Act scheme are diffuse mesothelioma, bilateral diffuse pleural thickening, pneumoconiosis, byssinosis and primary carcinoma of the lung, if accompanied by asbestosis or bilateral diffuse pleural thickening.
The 2008 mesothelioma lump-sum payments scheme, which I will refer to as the 2008 scheme, was introduced to provide compensation to people who contracted diffuse mesothelioma but who were unable to claim compensation under the 1979 Act because, for example, they were self-employed or their exposure to asbestos was not due to their work. The 2008 scheme allows payments to be made quickly to people with diffuse mesothelioma at their time of greatest need. Under each scheme, a claim can be made by a dependant if the person with the disease has died before being able to make a claim.
The rates payable under the 1979 Act scheme are based on the level of the disablement assessment and the age of the person with the prescribed disease at the time the disease is diagnosed. The highest amounts are paid to those diagnosed at an early age and with the highest level of disablement. All payments for diffuse mesothelioma under the 1979 Act scheme are automatically made at the 100% disablement rate, the highest rate of payment, reflecting the serious nature of the disease. Similarly, all payments for this condition under the 2008 scheme are made at the 100% disablement rate and based on age, with the highest payments going to the youngest people with the disease. In the last full year for which data is available, April 2020 to March 2021, 2,270 awards were paid under the 1979 Act, totalling £34.4 million, and 400 people received payments under the 2008 Act, totalling £8 million. Overall, 2,670 awards were made across both schemes in 2020-21 and expenditure was £42.4 million.
As noble Lords will be aware, the Covid-19 pandemic has presented unprecedented challenges across government. I am particularly mindful of the tremendous impact it has had on many of our most vulnerable customers. I would like to share some actions we have taken to try and maintain services for customers during this time.
In March 2020 we temporarily suspended all face-to-face assessments to protect the health of claimants and staff. In order to qualify for payment under the 1979 Act, customers must have an entitlement to IIDB, so some customers will have been impacted by the suspension of face-to-face assessments. We have continued to process IIDB claims for people with fast-track prescribed diseases within average processing times, as those claims can be assessed on paper without the need for a face-to-face assessment.
To minimise disruption to our most vulnerable customers, we also introduced changes to the pre-pandemic processes of both DWP and our assessment provider, CHDA. These changes enabled DWP to undertake in-house reviews and enabled CHDA to increase paper-based assessments for some respiratory disease cases and undertake small volumes of video assessments for customers with specific claims and conditions.
Face-to-face IIDB assessments resumed for most customers in April 2021. However, we are continuing to assess some people on paper evidence wherever possible. Journey times for some claimants will have been increased because of this increase in paper-based assessments. Our healthcare providers are having to submit more requests for supporting medical evidence from the NHS, such as new X-rays and scans. This process can take some time in normal circumstances, but with the additional pressures on the healthcare sector it is taking longer than usual.
While a paper-based scheme and a limited number of video assessments will continue to be appropriate for some of our claimants, they will not be suitable for all. Face-to-face examinations are usually required for IIDB to confirm the nature and severity of disablement an individual may have. For example, disablement may need to be confirmed by testing lung function. These assessments can often be made only with the claimant present and can involve spending an hour, sometimes longer, in an enclosed private space with a healthcare professional. For this reason, some of the respiratory disease claims that cannot be assessed by paper continued to be suspended until earlier this year due to the additional risks in undertaking these assessments. They have now resumed with extra safety measures in place.
As a result of delays, some customers making claims for the lump-sum schemes will have had a birthday while waiting for an assessment, meaning that their award was at a lower rate. To ensure that no customer was unfairly disadvantaged as a result, from 19 August we began to award one-off special payments to put these claimants back into the position they would have been in had they not been affected by the suspension of services.
I turn now to lung health more generally. While we expect the number of people diagnosed with mesothelioma to begin to fall in the coming years, this Government are well aware that there will still be many people who develop this and other debilitating respiratory diseases in the coming years. That is why we are committed to working with our agencies and arm’s-length bodies to improve the lives of people with respiratory diseases.
The Covid-19 pandemic has presented major challenges for all healthcare systems. The NHS published a Cancer Services Recovery Plan, which was developed with the Cancer Recovery Taskforce. The plan aims to prioritise long-term plan commitments, which identified respiratory disease as a clinical priority, and will support recovery, including the delivery of targeted lung health checks.
We remain committed to returning the number of people waiting over 62 days to start treatment to pre-pandemic levels, as per the 2022-23 planning guidance, and to continuing to increase referrals by encouraging patients to come forward. Additional funding of £1.5 billion has been confirmed for expanding treatment capacity across all elective care next year, and £2.3 billion for diagnostics over the next three years. The plan makes it clear that cancer will be a priority for that funding. We need to work together to make sure that this happens. There is a focus on personalised stratified follow-up as part of out-patient transformation. Cancer has been identified as leading the way on patient-initiated follow-up, and the strategy sets out plans for all specialities to develop this.
The 2021/22 Priorities and Operational Planning Guidance, published by the NHS in March 2021, includes plans for tackling the backlog of non-urgent treatment, such as services for lung disease patients, as well as plans that aim to stabilise total waiting lists and eliminate waiting times of two years or more. The Department of Health and Social Care has made available £1.5 billion to assist local teams to increase their capacity and invest in other measures to achieve these priorities. The spending review 2021 announced £2.3 billion to increase the volume of diagnostic activity and open community diagnostic centres to provide more clinical tests for patients, including those with lung diseases.
Baroness Wilcox of Newport (Lab)
My Lords, I thank the Minister for introducing these regulations to the Committee and I am pleased to hear her references to additional support for people during the Covid-19 pandemic, which may otherwise have left them severely disadvantaged. However, more can always be done.
We have heard that the Government have decided to increase the amounts set out in the mesothelioma lump sum payments regulations by 3.1%, the rate of inflation as measured in September 2021 by the CPI. I will not repeat the figures quoted by the noble Baroness, Lady Janke, but I concur with her points regarding the gaps between this uprating and the exponential increases in the cost of living. This is an extremely vulnerable group of people in our society. I urge the Minister to look again.
Current high death rates among males aged 70 and above reflect the fact that this generation had the greatest potential for asbestos exposure in younger working life during the period of peak asbestos use in the 1950s, 1960s and 1970s. Death rates among those under 65 have now been falling for some time. The most recent deaths in this younger age group are among the generation who started working life during the 1970s or later, when asbestos exposures were starting to be much more tightly controlled.
These kinds of diseases are a result of our industrial past and today I am proud to put in the official record the name of one south Wales miner who toiled underground man and boy to bring wealth and prosperity to the whole UK from the 1950s to the 1980s, until the year-long miners’ strike put paid to future employment for him and many like him. He was my dear late stepfather, Terrence John Howells, who luckily escaped the wrath of lung disease but was taken early by ischemic heart disease after a lifetime of working hard in the harshest of conditions underground, his face and hands covered in blue scars that were the permanent reminders of the toll that that industry left upon its workers.
Pneumoconiosis, in particular—also known as dust or black lung—was another industrial disease known as a silent killer, clogging and destroying the tissue of lungs and robbing thousands of men in particular of their futures. It was more prevalent in south Wales than anywhere else in the UK because of the young age at which mining was embarked on there. It ensured that families would see their fathers, husbands, brothers and sons fade through slow and painful illness. These compensation measures we are discussing must never be spoken about without remembering the context of the suffering of so many families and the consequences of these dreadful industrial diseases.
As well as reflecting on our industrial past and what people gave and endured in working in heavy industry, we must also reflect on the negligence towards health and safety matters. We need a strong Health and Safety Executive, but the number of health and safety inspectors has dropped by a third under this Government. There were 1,495 inspectors with the Health and Safety Executive in 2009-10, but just 978 in 2017-18, after falling every year in a row. Funding was slashed from £239 million to £136 million over the same period. Can the Minister tell us how confident she is that the HSE is sufficiently well resourced both to manage the risks to employees as we move out of the pandemic and to be mindful of the health risks we may encounter in the future, so that future generations will be better protected than my dear stepfather and his comrades were in their working lives?
In her speech on this matter last year my noble friend Lady Sherlock raised several important issues with the Minister that remain unaddressed a year later, so I will reiterate them on her behalf. There is a lack of parity between the levels of compensation being offered to sufferers and to their dependants, and we look forward to hearing a restatement of the Government’s rationale for this decision. Similarly, will she address the impact of disparity on women, who are often the dependants? Is there a cost estimate of providing equal payments? I look forward to the Minister’s response to these questions.
Baroness Stedman-Scott (Con)
My Lords, as the noble Baroness, Lady Wilcox, reminded us of her relative, I start by saying that this is about people—people who contracted the disease through no fault of their own. We must be mindful of that. I remember that Lord Kirkwood, from the Liberal Benches, lost his dear wife to this. We must remember that this is about people.
The noble Baroness, Lady Janke, asked whether the 3.1% increase was adequate. The CPI in the year to September is the latest figure that the Secretary of State can use for the uprating review to allow her to meet the DWP’s hard IT deadlines. Using a consistent period for uprating each year means that, over time, the index balances out. As to whether it is adequate, certain disability benefits, including the industrial injuries benefits, are being uprated by the rate of the consumer prices index in September, which was 3.1%. This increase matches the increasing industrial injuries disablement benefit, to which the 1979 Act scheme is linked, as the lump-sum schemes we are debating today provide compensation payments to people who have become disabled through these debilitating diseases. We believe that it is appropriate to uprate the payments in line with other disability benefits.
Both noble Baronesses asked what the Government are doing to help with the cost of living. We have raised the national living wage, given nearly 2 million families an extra £1,000 a year through our cut to the universal credit taper and increased work allowances, frozen fuel duty for the 12th year running and invested £200 million in successful holiday activity, and will maintain the energy price cap to at least the end of 2022 to protect millions of people and ensure they pay a fair price for their energy—in spite of the rising cost of wholesale energy.