Mesothelioma Lump Sum Payments (Conditions and Amounts) (Amendment) Regulations 2015

Lord Bourne of Aberystwyth Excerpts

Wednesday 25th February 2015 Grand Committee

Moved by

[Lord Bourne of Aberystwyth]

That the Grand Committee do consider the Mesothelioma Lump Sum Payments (Conditions and Amounts) (Amendment) Regulations 2015.

Relevant document: 20th Report from the Joint Committee on Statutory Instruments

[Lord Bourne of Aberystwyth (Con)]

My Lords, I beg to move that the Grand Committee do report to the House that it has considered the draft Pneumoconiosis etc (Workers’ Compensation) (Payment of Claims) (Amendment) Regulations 2015, and the Mesothelioma Lump Sum Payments (Conditions and Amounts) (Amendment) Regulations 2015. I am required to confirm to the Committee that these provisions are compatible with the European Convention on Human Rights, and I am happy to do so.

These two regulations will increase by 1.2% the lump sum amounts payable under the Pneumoconiosis etc. (Workers’ Compensation) Act 1979 and the diffuse mesothelioma scheme set up by the Child Maintenance and Other Payments Act 2008. These new amounts will be paid to those who first satisfy all the conditions of entitlement on or after 1 April 2015. These two schemes stand apart from the main social security benefits uprating procedure and there is no legislative requirement to review the level of payments each year. None the less, I am happy to confirm the increase of the amounts payable for 2015 by the consumer price index. This is the same 1.2% rate that is being applied to industrial injuries disablement benefit and some other social security disability benefits under the main social security uprating provisions.

The Government recognise that people suffering from diseases as a result of exposure to asbestos or one of a number of other listed agents may be unable to bring a successful claim for civil damages relating to their disease. This is mainly due to the long latency period between exposure and onset of the disease, often stretching back decades. Also, even pursuing a claim can take some time. We therefore fulfil an important role by providing lump sum compensation payments to sufferers of certain asbestos-related diseases through these two schemes. This does not debar a civil claim, which can still be pursued. These government schemes also aim to ensure that sufferers receive compensation while they themselves can still benefit from it, without first having to await the outcome of civil litigation.

--- Later in debate ---

[Baroness Sherlock (Lab)]

My Lords, I thank the Minister for his explanation of these regulations, and all noble Lords who have spoken. It is a privilege to be gathered with the same cast of people with whom we have debated these issues over the past couple of years. This is a terribly cruel disease. Some of the stories that we heard from the noble Lord, Lord Alton, and my noble friend Lady Donaghy, which reminded us of the ways people contracted these conditions, should give us pause for thought about what we are missing today. As the Minister has indicated, there is no requirement to uprate these payments. We welcome the uprating by 1.2%, particularly since it is broadly in line with increases to some other social security disability benefits and industrial disablement benefits.

The point raised by the noble Lord, Lord Avebury, on whether the Government would consider putting these upratings on to a statutory footing, was also raised by my honourable friend Kate Green when these regulations were considered in another place. As she noted when the regulations were considered last year in a Delegated Legislation Committee in another place, the then Minister for Disabled People said that the Government were actively reviewing the way that the uprating could be done. Kate Green asked how that was getting on. The answer she got this year was that the matter was still under review. Could the Minister tell the Committee something about the nature of that review and how much longer it might take? Could he share the barriers found during the past year to putting this uprating on a statutory footing in the way described by the noble Lord, Lord Avebury? Has the Minister any sense of the timescale for when that might be resolved?

Secondly, I want to revisit the question of differential treatment of dependants and sufferers under the scheme, also raised by the noble Lord, Lord Avebury. This came up when these regulations were being uprated last year. Dependants receive lower awards than sufferers in these two schemes, in three broad ways. The cut-off age for dependants to be in receipt of an award is 67 for dependants, compared with 77 for in-life claims. Some in-life claimants can receive a 10% enhancement under the 1979 scheme, although not, I acknowledge, under the 2008 scheme.

Awards for sufferers are also set at a higher level than those for dependants. As we discussed last year, that is at odds with the treatment of civil claims for mesothelioma compensation in the courts, where dependants receive higher awards. Because sufferers live for such a short time, as the Minister acknowledged, this can become a real problem. I very much agree with my noble friend Lady Donaghy about the fact that when someone is diagnosed, often the last thing that people want to do is spend the little bit of time left to them having to worry about money. Because the awards are lower to dependants, though, there could be pressure on a sufferer to spend that bit of time trying to sort out a claim because they are worried about what will happen to their dependants. Because the amount is lower if the claim does not get in before they die, that can add to the pressure on them. Have the Government been able to think any more about that?

As was mentioned by the noble Lord, Lord Avebury, when my noble friend Lord McKenzie was the Minister in 2010 he began to eliminate that difference in treatment and began to work towards equalising payments for dependants and sufferers. However, there has been no progress since then in narrowing the gap. When we debated the uprating last year, the noble Lord, Lord Freud, said that the Government were also keeping this issue under review. I had hoped that the Minister would come back to it. Perhaps he can tell us how that review is going: is there any intention to revisit it? Since he told us that we are now looking at deaths from mesothelioma peaking in 2018, the amount of time for this to be addressed is beginning to run out. Can the Minister tell us anything today?

Finally, before I come on to the points raised by the noble Lord, Lord Alton, I have a brief question about education. When the noble Lord, Lord Freud, wrote last year after our uprating discussion to all of us who had contributed to the debates, he mentioned an awareness-raising campaign due to launch in Autumn 2014 with a budget of £1.3 million. He also kindly gave details about what the campaign would cover and how it would be run. Will the Minister update the Committee as to whether the campaign was launched and is proceeding in line with the information given in that letter a year ago? How will the campaign be evaluated and will the evaluation be published?

I turn to the Mesothelioma Act 2014 and the important points raised by the noble Lord, Lord Alton. The question of 3% is very important. We spent a huge amount of time in this House at every stage when the Bill was going through discussing the appropriate level. We negotiated in careful detail about the amount of the levy, who would be covered, what the backdating period would be and the levels of the payment. We were absolutely reassured that that was the most that could possibly be afforded. So be it.

When the Bill then went to another place, the amount of compensation was raised from 75% to 80%, which was very welcome, but the question of the level of the levy was raised then. On Report in another place, my honourable friend Kate Green moved an amendment to enshrine the 3% in law. The response given by the then Minister for Disabled People was:

“Three per cent. is 3% and we have no intention of moving away from it”.––[Official Report, Commons, Mesothelioma Public Bill Committee, 12/12/2013; col. 117.]

and that the amendment was therefore unnecessary.

Now, of course, the amount has come out at 2.2%. When the order was debated in another place, the Minister said that it is not a target, it is a cap. What has happened to move from what was clearly a flat 3% to something that becomes a cap, not a target, in the intervening period? One indication being given, as has been suggested, is that the take-up rate is lower than expected. I very much hope that the Minister can give us some information to help us to understand why the take-up rate is so low and what action the Government are taking to look into either the success rate or the coverage, the reach, being taken into non-traditional areas—a point made by my noble friend Lady Donaghy. That would be very helpful.

If more money is available, there are plenty of ways in which it could be spent, which were pushed for when the Bill was going through Parliament but we were told that the money was not there. The noble Lord, Lord Alton, made a point about research, to which he has returned more than once on the Floor of the House. The noble Lord, Lord Avebury, made a point about entry. There was much pressure on the Government at the time to backdate claims to earlier than 25 July 2012, which was the date eventually settled on. Did the Government consider that?

I echo the request from the noble Lord, Lord Alton, and my noble friend Lady Donaghy for more information about what is happening. If the Minister can give information about the categories of workers affected, can he also give us further information about those who were not workers at all, whom we discussed at length, such as spouses? There was much discussion when the Bill was going through of spouses who had contracted mesothelioma from washing the overalls and work clothes of people of people who contracted it, but who were not covered because they were not workers. Is there any more information about that? I thank all noble Lords who have spoken, and I look forward to the Minister’s reply.

[Lord Bourne of Aberystwyth]

My Lords, I thank noble Lords for their helpful contributions to the debate. The Government recognise that the two schemes form an important part of the support available to sufferers of mesothelioma and certain other dust-related diseases, and the regulations will ensure that the value of those schemes is maintained. As the noble Baroness, Lady Sherlock, said, there is no statutory liability to uprate them but, like other noble Lords, I am pleased that this has been managed this year as it was last year.

Let me try to deal with the many valid points raised. In so far as I cannot supply information, or if I miss anything, I will ensure that we write to all noble Lords who have participated in the debate. I will try to take the points in the order in which they were raised.

I thank the noble Lord, Lord Alton, for his support and acknowledgement of the assistance that we have provided. We believe that the impact will be greatest in 2018. That is our best information but we will double check that, and will certainly write to noble Lords if that is inaccurate. We do not intend to make an annual impact assessment but we will look at whether it is possible. We certainly will have access to the indication of the estimates of the people who are likely to contract the disease, and I hope that we are able to do something around those in terms of the increase as it comes each year—hopefully, it will—to indicate that in some sort of impact assessment.

[Lord Alton of Liverpool]

I am extremely grateful to the noble Lord for intimating that at least the proposal will be looked at. It is pretty clear from all the interventions that have been made in these proceedings that it would be incredibly helpful if a narrative could be provided annually, along with these upratings, of where we stand on the broader horizon of the issues that have been referred to during the debate. For me, it would be a very useful outcome of these proceedings if we could have an undertaking that an impact assessment will be provided routinely each year.

[Lord Bourne of Aberystwyth]

I can certainly undertake to look at this and I hope that we will be able to do so. I need to go back to the department to make sure that it can be done, but the noble Lord can have my undertaking that we will certainly look at that.

The measure currently being used is the CPI, and many people have suggested that that could be put on a statutory basis. We are still looking at that and certainly have not ruled it out. That would require a statute, but we are continuing to look at the evidence as to whether it is something that we should be doing. In the mean time, we have flexibility and I think the record speaks for itself: we have been seeking to do what we can.

The noble Lord was keen to push for more research money for projects on mesothelioma. Like him, I was delighted to see that Aviva and Zurich have agreed to pay £1 million to the British Lung Foundation, which does fantastic work. I remember the work that it did when I was in the National Assembly for Wales. It is indeed an excellent organisation. We have set up a partnership that includes patients and clinicians to identify mesothelioma research priorities, and the results were published in December. I will make sure that those are circulated to noble Lords so that they have a record of what is happening in that connection.

I turn to the 3% levy, which has been raised by many noble Lords: the noble Lord, Lord Alton, my noble friend Lord Avebury and the noble Baroness, Lady Sherlock. It is a cap, and setting it at 3% was a hard-fought agreement with the insurance industry. It is not, as it were, a budget; it is a cap and it was set at that level because we wanted to ensure that there would be sufficient funds in the scheme to pay out the money. We have to take account of the cost of the scheme, and that is what the agreement was—it was not to fund research. However, I hope that other insurance companies will follow the excellent example set by Aviva and Zurich, which I have mentioned.

[Lord Alton of Liverpool]

My Lords, I am sorry to interrupt the noble Lord again, but this is an important point. It seems grievously unfair on the two companies that the noble Lord has rightly referred to, which for purely voluntary reasons have stepped forward and provided £1 million of funding to the British Lung Foundation, when there are around 125 insurance companies involved in this. The two companies that have provided these resources have asked why other companies are not being required to do the same. There is a question of equity here, apart from anything else. I am sure that the Minister will agree that, welcome though the £1 million is, even the one suggestion that I have made, which would require £2.5 million to bring it forward to clinical trials, indicates that the sum really is a drop in the ocean. When compared with all other cancers, mesothelioma has traditionally always been at the bottom of the league table in terms of private and public funding.

[Lord Bourne of Aberystwyth]

I think that the noble Lord is being a little inventive in suggesting that we should compel other insurance companies to follow the voluntary effort being made by two. I certainly commend that effort but it is a voluntary one, and there is always room for voluntary effort. We would not want to see insurers having to pass on additional costs of the scheme to their customers. As I say, a hard-fought, robust agreement has been made with the insurance industry. That is not to say that it cannot ever be revisited but, as things stand at the moment, it was set as a cap, not as a budget.

[Lord Avebury]

My Lords, I agree with the Minister that you cannot compel the rest of the insurance companies involved to pay money when two companies have voluntarily come forward and made contributions, but perhaps he would write to the 125 other companies asking whether they consider that they are in any way morally obliged to follow the lead which has been set by those two companies and make a voluntary contribution.

[Lord Bourne of Aberystwyth]

I do not undertake to write to the 125 companies involved, but we will make sure that a copy of the debate and a covering note is sent to the Association of British Insurers so that it can pass it on. The noble Lord made a very fair point.

Equalisation with dependants has been raised. The rules on the status of dependants and the amounts they get are not straightforward because it depends slightly on the nature of the dependency, when the sufferer died and so on. We certainly have not ruled out equalisation but it is not a top priority. The top priority is to get money to sufferers quickly, which we do under the 1979 and 2008 Act schemes. That remains our priority. I am not saying that equalisation will never be looked at. I think that the noble Lord, Lord Avebury, along with other noble Lords, asked about an indicative estimate of the cost. It is about £2 million per annum. We will review the situation in more detail and I will write to noble Lords on that issue.

I acknowledge the work the noble Baroness, Lady Donaghy, has done as a former president of the TUC and, indeed, the role of the TUC in campaigning on this issue. It has certainly done more than its ration in this regard. The noble Baroness usefully highlighted some of the hazardous industries which are not immediately obvious, such as the jewellery repair business, which she mentioned, and gave the example of a warehouseman who was exposed to the substance we are discussing while sweeping up.

The noble Baroness, Lady Sherlock, referred to publicity on this issue and the campaign mentioned by my noble friend Lord Freud on a previous occasion. My honourable friend the Minister for Disabled People helped to launch the current £1.13 million Health and Safety Executive asbestos awareness campaign in October 2014, to which the noble Baroness referred. The campaign aims to help at-risk workers recognise that asbestos is relevant to them and their work, encourages them to seek reliable information on how they can protect themselves and encourages safer working with asbestos through behavioural change. The campaign is not due to end until March 2015, and a full evaluation will be undertaken before any decision is made about a further campaign so that we are able to take that information onboard in framing any future campaign. However, we will, of course, report back after the evaluation has concluded. I do not have a date for that, but I suspect that the evaluation will be completed some time in the spring or early summer of this year.

I think that I have covered the points made by the noble Baroness, Lady Donaghy. I am very grateful to the noble Baroness, Lady Sherlock, for her comments on, and general support for, the uprating. As I say, we have not ruled out the statutory footing and I have just referred to the awareness campaign. I think that I have dealt with the other points that she raised. Do we think that the low uptake is a communications issue? I do not think so. Specialist health workers and clinicians support sufferers and are fully aware of the nature of asbestos. Our schemes are in addition to that. However, I am not being complacent. Obviously, we will make an assessment of the current campaign. We also make use of social media to ensure that we get messages across.

I think that I have dealt with the points that noble Lords have made. This is a really important issue. I am very pleased that we have been able to bring in uprating at 1.2%. I will write to noble Lords with the points that I have mentioned and any other points that I have missed. In the mean time, I commend the uprating of the payment scales and ask for noble Lords’ approval to implement them.

Motion agreed.