Mesothelioma Lump Sum Payments (Conditions and Amounts) (Amendment) Regulations 2024

Lord Allan of Hallam Excerpts

Monday 19th February 2024 Grand Committee

[Baroness Finlay of Llandaff (CB)]

My Lords, I also declare that I am a member of the all-party group on asbestos. Following what has been said about schools, which is incredibly important, it is also worth remembering that many of the people who die of mesothelioma have been healthcare workers, because they were in hospitals where the pipe lagging, often done with asbestos, was poorly maintained and loose. When they ran through the corridors, sometimes the basement corridors, to get to emergencies they would have been inhaling this fine dust without realising it. I was one of the junior doctors working in that type of hospital.

The all-party group is desperate—I use that word advisedly—for these regulations and for this compensation scheme to come through. I undertook in the meeting today to make that representation here. I was interested in the Government’s figures, if I heard right, of 2,860 awards in a year, because new cases are estimated to be around 2,700 a year, which tallies completely with the appalling survival rate of only 2% at 10 years. Mesothelioma is an awful malignancy from which people die very quickly. We have heard repeated stories of people who suddenly became ill and were dead within months, so it is devastating. It is also devastating in the younger age groups, who may leave children bereaved of a parent.

The other thing I want to flag up and keep on record is the fact that we still have many school buildings with asbestos in them. That problem has not been solved and I have particularly brought it to the attention of the Government from Wales, where there has been dispute over how it will be ameliorated. As well as this compensation scheme for the victims, we need to remember that prevention is absolutely crucial and to make sure that all buildings where there is asbestos are adequately managed. It may well be that what has been done in many of those schools and hospitals to date has been inadequate, thinking that it could be covered up, because the walls get nails put into them and if children bounce against them, the walls crack. Water can also get in, and you can easily get a leak of asbestos fibres.

There is no current requirement to monitor the air quality in an ongoing way. Individual sampling is inadequate because these fibres will fall to the ground, so a one-off air sample may not detect them. There needs to be continuous air quality monitoring in schools, and I suggest that it might be a preventive and public health measure.

[Lord Allan of Hallam (LD)]

My Lords, the first two instruments are of course welcome in providing the inflation-based uplift, particularly because the schemes do not require that from their inception, so it is certainly welcome that those payments will be made. I have only one question on that, which is to understand how the process of the change occurs around 1 April, as the Minister said would happen. Given the rate of inflation, the 6.7% is quite material.

I am curious to understand whether it is something that the claimant exercises some control over—in other words, if they decide to put in their claim in March, it will be at the lower rate; if they choose to wait until after 1 April, it will be the higher rate—or is there some other mechanism taking place that determines that it has to be before or after the uplift date? That will be a question for a lot of people now that we have the gap between approving the new rates and when those rates kick in. People will have questions about whether they control that or the department does. What is it that determines whether they get the old rate or this new rate, which is materially increased? I say that not to complain but to welcome it—it is extraordinarily welcome—but if somebody applied and found that by applying a week earlier, they had missed out on a significantly higher payment, it would be frustrating. I hope the Minister can deal with that.

On the final instrument, I again thank the Minister for the very clear and comprehensive explanation of how we got there. It touched on questions that I had when I read the instrument. I will play back to the Minister what I think I heard, and perhaps he can confirm in his closing remarks whether I have understood it correctly.

There are around 300 people a year in the category that we are talking about who were technically excluded from the old payment scheme. These people have been getting their money but, in effect, they have been getting it ultra vires. They should not have been getting it, technically; they have been getting it—that is not a complaint; it is extremely welcome if that is the case—but, in September last year, somebody spotted the fact that they should not have been getting it, and now we have 94 people sitting in the queue until we can fix that. Can the Minister confirm that that is the sort of number of people; that they have been getting the money and no one from the group that we are talking about was being turned away; and that it is just that from a technical, legislative point of view, we have been more generous than we should have been? If that is the case, that is great; I am happy to go with that.

I hope the Minister can just clear that up for us and confirm that, extending into the future, from the point of view of understanding whether someone is eligible, there is not a group of people who will not have applied because, under the prior definition, they thought they were ineligible. If it is the case that there is a group of people who are now eligible who were not previously eligible, I am keen to hear from the Minister how we are making sure that they are all made aware of that and encouraged to apply to the scheme.

On balance, these three instruments seem very welcome. They uplift a much-needed payment for people suffering from serious illness. The one question I have is around the mechanism for when that uplift kicks in between now and 1 April. On the third instrument, again, it is welcome, but I just seek reassurance that people in that category have not been turned away and that future claimants will be made aware of their eligibility effectively.

[Baroness Sherlock (Lab)]

My Lords, I thank the Minister for introducing these regulations to the Committee and all noble Lords who have spoken. As we have heard, the Government have decided to increase the lump sum awards payable under the 1979 Act scheme and the 2008 Act scheme by the 12-month CPI rate last September, namely 6.71%. That is obviously very welcome.

We also welcome the fact that the Government have decided to align the definitions of these diseases as set out in the 1979 Act scheme with those in the industrial injuries disablement benefit—it was helpful to get that background and the amplification from the noble Lord, Lord Allan—hence the need for the third instrument we are debating here. It will have the effect of expanding the pool of people who are definitely entitled to the lump sums payable under the 1979 Act to include those with unilateral diffuse pleural thickening and asbestos-related primary lung cancer. This expansion is welcome but, just to follow on from the question from the noble Lord, Lord Allan, for people who are in that queue and waiting for these regs to take effect in order to be able to get it, if they die before they take effect, are we in the position raised by my noble friends in terms of the differential between dependants and other schemes? Can the Minister comment on that?

The Minister is absolutely right that these schemes continue to provide crucial compensation to those who are suffering from these awful diseases and their families. Although money is obviously no substitute for a life, it can help with practical issues, especially if it is paid out fast.

Annual deaths from mesothelioma in Britain increased steeply over the past half-century, mainly due to the widespread industrial use of asbestos from about 1950 to about 1980. That accounts for the current high death rate among men over 70, whose younger working life coincided with the period of peak asbestos use. Thankfully, death rates for those below 65 have been falling. I looked through the latest statistics published by the HSE last July. They showed that there were 2,268 mesothelioma deaths in Great Britain in 2021, which is a fall of 302 from 2020 and below the average of the previous few years.

The HSE says that this reduction remains consistent with the earlier projections that the annual deaths would fall gradually during the 2020s and suggests that the variability in the figures for 2020 and 2021 may have been something to do with Covid, but it also says that predictions suggest that there will continue to be 400 to 500 deaths among females in the 2020s. If I am reading that right, that suggests that while male deaths will continue to fall, female deaths will not. Last year, in the same debate, I asked the Minister whether he could comment on that discrepancy. I did not get an answer. Can he help this year?

It occurred to me to wonder whether this had anything to do with asbestos being uncovered in schools and hospitals, which was mentioned by my noble friend Lady Blower and the noble Baroness, Lady Finlay. After all, there are reports that a lot of asbestos has been found in schools uncovering RAAC, which is not surprising given that that DfE has previously said that 81%, I think, of state schools have asbestos. I gather that attempts are being made to launch studies into the impact on teachers and students. Last year, the Guardian reported that official data had already shown that female former teachers born between 1935 and 1954 have a 40% increased rate of mesothelioma. It also reported that statisticians have now detected a rate of mesothelioma deaths that “borders on statistical significance” among teachers born between 1955 and 1974. I hope fervently that my noble friend Lady Blower will not turn out to be in this cohort.

As the noble Baroness, Lady Finlay, said, there is also a problem in hospitals, and I hope very much that she will not turn out to be caught up in this terrible situation. Last July, the Times reported on the death from mesothelioma of Guru Ghoorah, an NHS nurse, at the age of 45, leaving two children aged four and seven. Four NHS hospital trusts were ordered to make a combined compensation payment to him of £650,000. The thing that struck me about that report, apart from that tragedy, was that it noted that ONS figures state that 177 NHS staff died from mesothelioma between 2002 and 2015 and that occupations are not recorded if a person dies aged more than 75. Two-thirds of mesothelioma deaths occur after that age. Interestingly, the Times reported that a freedom of information request by Sheffield University to NHS Resolution found that, between 2013 and 2022, 360 asbestos-related mesothelioma claims were made against the NHS. Sadly, each of those will have resulted in a death. That suggests a rather higher death rate than the official ONS figures. Can the Minister comment on the risks of asbestos in these settings, which were raised by my noble friend and the noble Baroness, to which the HSE is presumably alert? What action is being taken to protect staff, students and patients? Does he think this will impact mortality rates in future?

Looking at the statistics I was struck again that the north-east always stands out in so many depressing tables. Three of the top 10 geographical areas for male deaths are in the north-east, the region I live in: North Tyneside, South Tyneside and Hartlepool; as are two of the top 10 for women: Newcastle and Sunderland. Of course, these diseases are a product of our industrial past. If my noble friend Lord Jones were here, he would talk about south Wales miners suffering from pneumoconiosis. This debate is an important annual reminder of the price paid by so many people for our industrial heritage, our infrastructure and the society we all benefit from, but it is also a reminder of the need for government and industry to take health and safety seriously. The link between mesothelioma and asbestos was found in the 1960s, but asbestos was still being used widely throughout the 1970s. The schemes that we have been debating today were needed because, as my late and much lamented friend Lord McKenzie of Luton reminded noble Lords in the past, some employers and some people involved in liability insurance did not act as they should have done with regard to their liabilities, hence the need to create these schemes, so this is a good annual prompt to be alert to new and emerging risks to health.

The position of dependants has been raised again by my noble friends Lady Donaghy and Lady Blower. I would be interested to know the Government’s current position on this. My noble friend Lady Blower mentioned the TUC’s figure of £1.5 million as the cost of equalisation. Do the Government agree with that figure? If not, will the Minister tell the Committee the figure the Government have for the cost of equalising payouts to dependants and victims?

Finally, I am sure that the Minister will have seen the reports in the news over the past few days about a new drug breakthrough to treat mesothelioma. Does he have any more information that he can share with us on that?

I am grateful to the staff who have worked on this, to the All-Party Parliamentary Group, to the charities and to all those who work in this space. It is incredibly important that we keep up the work on research, on campaigning and on support. I look forward to the Minister’s reply.

[Viscount Younger of Leckie (Con)]

My Lords, I start by thanking all noble Lords here today for their contributions to this short debate. As has been the case in previous years, it has demonstrated the profound interest in these schemes that is present in the House—indeed, in this Committee.

I should start off by saying this: it is important that we all remain mindful that these debates are about those whose lives have been impacted by these dreadful diseases. I particularly appreciate the attendance of the noble Baronesses, Lady Donaghy and Lady Finlay, who have broken off from their committee; again, it emphasises the importance of this subject.

The Government recognise that the two schemes we are debating today form a crucial part of the support that is available to people suffering from dust-related conditions and their families. It is right that we ensure that the value of these compensation schemes is retained, especially in these difficult times. In addition to ensuring that these awards are uprated for those who first become entitled from 1 April 2024, the Government are also proposing to make changes to the list of diseases that may bring entitlement to compensation under the 1979 Act scheme.

A number of questions were asked. I will attempt to answer them all; I hope that there will not be any duplication in what I say. I shall mark my own homework on that; I am sure that noble Lords will do so too.

First, the noble Baronesses, Lady Blower, Lady Donaghy and Lady Sherlock, referred to equalisation and dependant awards, asking: why do dependants get lower awards than sufferers and when will the Government equalise these award rates? It is clear that whole families can be devastated by these diseases, as I said earlier; that is why dependants can claim compensation following the passing of their loved ones. The Government remain of the view that available funding should be prioritised to those people who are currently living with the disease. This position is in line with the main purpose of these schemes: to provide financial support to people living with certain diseases, and to help them deal with the issues that illness brings. I hope that I have a figure for the noble Baroness, Lady Sherlock; I will address that in a moment.

The noble Baronesses, Lady Sherlock and Lady Blower, asked further questions about disparity, including on the number of recipients of payments under the 1979 scheme who were aged 77 or over and the number aged 37 years and under. They also asked for the breakdown of payments by industry. I can tell the Committee that, in the last full financial year for which published data is available—April 2022 to March 2023—2,460 awards were paid under the 1979 scheme. Some 1,400 of the awards paid—57% of them—were for individuals aged 77 and over, while fewer than five awards paid were for individuals aged 37 and under. Unfortunately, information on the occupational and industry breakdown of recipients of the lump sum schemes is not published and is not readily available; this would require analysis of multiple datasets for the 1979 scheme and the industrial injuries disablement benefit in order to determine occupational and industrial formation. I have probably gone a bit further than the question that was asked but I hope that that is helpful.

The noble Baronesses, Lady Blower and Lady Finlay, asked further questions about equalisation. Around 90% of the payments made under both schemes are paid to sufferers of the diseases covered by the schemes. As I have said already, we are prioritising those living with the diseases.

We estimate that to equalise awards for people diagnosed with the disease and dependants in 2024-25 would require an additional £1.4 million a year from the DEL budget. No provision has been made for this in the current spending review settlement. I think the figure that the noble Baroness, Lady Sherlock, might like to have is the £1.25 million figure that has been raised today.

The noble Baronesses, Lady Finlay and Lady Blower, raised important questions about asbestos in schools and public buildings. I will attempt to address these questions. It is obviously incredibly serious, and the Department for Education expects all local authorities, governing bodies and academy trusts to have robust plans in place to manage asbestos in school buildings effectively in line with their legal duties. Well-maintained and safe school buildings are a priority for the Government, and we have allocated more than £15 billion of capital funding since 2015, including £1.8 billion this financial year. This comes on top of our 10-year school rebuilding programme, which will transform buildings at more than 500 schools. Where there are serious issues with buildings that cannot be managed by responsible bodies, the Department for Education provides additional support on a case-by-case basis.

Moving onto public buildings, the Government agree that continuing to build on the evidence base around the safe management and disposal of asbestos is fundamental in ensuring that the risks posed by its past use are minimised. The Health and Safety Executive has a mature and comprehensive regulatory framework to ensure that legacy asbestos risks in Great Britain are managed that aligns with the best evidence currently available. This is reflected throughout the approaches outlined in the Control of Asbestos Regulations 2012—CAR. Correct implementation of CAR not only ensures management of risks of exposure but will eventually lead to the elimination of asbestos from the built environment without the need for any target deadline.

The noble Baroness, Lady Finlay, raised supporting research into mesothelioma. Research is crucial, as I am sure the noble Baroness will tell me, in the fight against cancer. The Department of Health and Social Care invested around £122 million in cancer research in 2022-23 through the National Institute for Health and Care Research, which I think I mentioned in my opening remarks. For several years, DHSC has been working actively to stimulate an increase in the level of mesothelioma research activity from a rather low base. This includes a formal research priority-setting exercise, a National Cancer Research Institute workshop and a specific call for research proposals through the National Institute for Health and Care Research. I hope that chimes with the knowledge that the noble Baroness no doubt brings to this Committee.

In 2018, the British Lung Foundation launched the UK’s first Mesothelioma Research Network, the MRN, with the involvement of key stakeholders, including DHSC. The vision of MRN is to improve outcomes for people affected by mesothelioma by bringing researchers together and therefore driving research progress and improving the quality of research. The network is supported by a £5 million donation from the Victor Dahdaleh Foundation, which matches the funding given to Imperial College London by the Government to establish the National Centre for Mesothelioma Research. I could say more about this, but it might be better if I write more to the noble Baroness on this important matter. I suspect she knows a lot of it, but it is important, and I will copy in all Members of this Committee.

The noble Lord, Lord Allan of Hallam, asked which cases might lose out on the uprated rates if they are paid before April. Perhaps I can provide some form of reassurance. The uprating regulations apply only in relation to any case in which a person first fulfils the conditions of entitlement to a payment under the 1979 Act scheme on or after 1 April 2024. As the cases being held will have first become entitled to a payment under the 1979 Act scheme before 1 April 2024, the amount they will receive is unaffected by the uprating. I hope that clarifies that. I think I might have mentioned that in my opening remarks, but I just say it to re-clarify it.

The noble Lord, Lord Allan, and the noble Baroness, Lady Sherlock, asked about historic claimants paid ultra vires. I reassure both of them that their understanding of my understanding or perhaps my understanding of their understanding is correct, whichever way around that reads best.

The noble Lord, Lord Allan, asked whether anybody has missed out. I probably covered that okay in my previous responses, but perhaps to go a bit further the department understands that historic claims made for these two conditions will have already received lump sum payments. As a result, to reclarify, these claimants have not missed out on a payment because this change was not made sooner.

The noble Baroness, Lady Sherlock, asked whether in situations where a sufferer dies before a successful claim is paid the lump sum payment is paid to the estate of the deceased at the same rate. If someone with the disease makes a claim but dies before payment is made, the payment is made to their estate at the same rate that they would have received had they received their payment while they were alive.

The noble Lord, Lord Allan of Hallam, asked who will benefit from this change and whether this will benefit only new claims or historic claims. I think have covered that. The noble Lord may wish to rise if I have not.

[Lord Allan of Hallam (LD)]

I am grateful to the Minister. The question also relates to the previous answer that he gave. If somebody in the new category that we are talking about had applied in August last year, they would have received the payment; however, had they applied in October, they would be held in the queue. We want to understand that a person who has been held in the queue because they applied in October—at that point, the department understood that it did not have the legal authority—will not lose out in any way, particularly if, sadly, they have passed away between their application and now, the point at which we can release the funds because we have passed this statutory instrument. I do not want to delay this any longer; the faster we get it, the better.

[Viscount Younger of Leckie (Con)]

Absolutely. That was my understanding too. My understanding is that they would not lose out, given the case raised by the noble Lord. If that is not correct for any reason, I will certainly write to him; however, I have made it clear that nobody will lose, and I should stick to that point.

The noble Baroness, Lady Sherlock, asked about gender differences. Her question was interesting; she asked it last year but did not get an answer, I think. There is always a degree of uncertainty in predicting future disease incidence, but the annually published data from the HSE show that annual mesothelioma deaths were broadly similar in the period from 2012 to 2020 but lower in 2021. Before that, annual deaths had been rising steadily since the late 1960s, but current projections suggest that annual mesothelioma deaths in both males and females are expected to decline over the long term as a consequence of past reductions in asbestos exposure for both males and females.

How soon the decline in annual deaths will become evident is expected to be different, with deaths among males declining during the 2020s and deaths among females remaining broadly level during that period before starting to decline. The reason for this lies in different patterns of asbestos exposure in males and females in the past—the noble Baroness will appreciate that, I think—with heavy exposures being reduced or eliminated sooner in specific industries where fewer females worked, such as shipbuilding, insulation work and asbestos product manufacturing.

The noble Baroness, Lady Sherlock, asked about regional variations. Some asbestos exposures, such as during construction work, were widespread across all regions whereas other exposures, for example those I alluded to earlier associated with shipyards and asbestos product factories, were associated with particular regions. Of course, those regions still tend to have higher mortality rates today, sadly.

I should make a point of clarification to do with equalisation. We estimate that to equalise awards for people diagnosed with the disease and dependants in 2024-25 would require an additional £1 million to £4 million a year—I think I said £1.4 million and I apologise for that—from the DEL budget and no provision has been made for that in the current spending review settlement.

With that, I hope I have answered all the questions.