Mesothelioma Lump Sum Payments (Conditions and Amounts) (Amendment) Regulations 2020

Lord McKenzie of Luton Excerpts

Tuesday 3rd March 2020 Grand Committee

[Lord Freyberg (CB)]

My Lords, much has been done to raise awareness of this disease and to improve the lives of people affected by it. This is thanks to a great deal of political support and work by colleagues in this House and the other place. I refer here to my noble friend Lord Alton, who gave his customary forensic analysis of the issue, the noble Lords, Lord Giddens and Lord Wills, and the noble Baroness, Lady Blackstone; and in the other place, Mike Kane, Tracey Crouch and the late Paul Goggins. My noble friend Lord Alton highlighted the invaluable work led by the British Lung Foundation and others.

Although we may expect the decline in heavy industry and mining over the last century to have eradicated occupational lung disease, people are still affected by exposure to harmful substances at work. As my noble friend Lord Alton mentioned, the Health and Safety Executive estimates that occupational lung disease results in around 12,000 deaths a year. For mesothelioma, there is currently no cure. Patients often have a short life expectancy and experience complex, debilitating symptoms.

A recent case regarding a former doctor in Coventry, Dr Kate Richmond, who is 44 with two young children and has only months to live, highlights that we must continue to strive so that employers are responsible for ensuring that effective measures are in place to control exposure to hazardous substances and must comply with the Control of Substances Hazardous to Health Regulations 2002. Last November, during the High Court hearing of Dr Richmond’s case against University Hospitals Coventry & Warwickshire NHS Trust, Judge Master Davison found that she had been negligently exposed to asbestos. Dr Richmond’s exposure as a trainee during the demolition of Walsgrave Hospital was due to

“frequently using underground tunnels in which there were pipes covered with asbestos lagging in poor condition.”

It resulted in a number of people who work for the NHS raising concerns about their working environment. This underscores the calls to fix capital funding to upgrade NHS facilities—and similarly in our schools. If we cannot get it right in-house and have the NHS lead by example, how can we expect others to take steps to remove harmful materials from the workplace?

The regulations under debate today are the annual revision to the rates for the lump-sum compensation payments to people with mesothelioma or pneumoconiosis or to their surviving dependants. The payments are dependent on the age of the person at the time of diagnosis or, if unknown, at the date of the claim. Typically, the payments are uprated each year in line with inflation. The total amount of the levy to be charged for 2019-20 is £33.3 million. I notice that the proposal is to increase the lump-sum payment in line with the consumer prices index, currently 2.4%. I do not know whether that is standard Treasury practice for compensation schemes, but the RPI inflation rate currently stands at 4%. My first question to the Minister is, as in the previous debate, whether this is too small an increase and whether this is the right measure to uprate these schemes.

In last year’s debate the Minister stated,

“I know that in previous debates on increasing the value of these lump sums, noble Lords have raised the subject of equalising the payments made to dependants who claim after the death of someone who had the disease with those made to people who have the disease and claim in their lifetime. However, I must tell noble Lords that we do not intend to equalise payments. The Government’s view remains that it is most important that the available funding is given to the people with the condition who would most benefit from it.”—[Official Report, 14/2/19; col. 1968.]


I am raising this matter again, as have the noble Baroness, Lady Thomas, and the noble Lord, Lord Alton, in light of the case highlighted earlier, given the relative youth of the doctor and her dependent children. Does the Minister still regard not equalising compensation payments as fair? Does the state not have a duty of care to frontline professionals working in the public sector? It seems particularly churlish not to invest in capital assets such as hospitals and schools and then to potentially disadvantage dependants on the grounds that this is taxpayers’ money. In this case, the doctor will have to spend her last months fighting the Government for compensation to ensure that her children are properly taken care of when the household they live in loses its mother and her salary sooner than would otherwise have been the case.

Turning to research, prevention and diagnosis, I welcome the NHS lung health check programme mentioned today by the Minister. It has been offered in some parts of England from autumn 2019 and aims to help diagnose lung cancer at an earlier stage when treatment may be more successful. I also welcome last week’s announcement by the University of Glasgow and NHS Greater Glasgow and Clyde which are set to benefit from a £5 million European research award to refocus research efforts on mesothelioma. The project, led by Professor Kevin Blyth, will help scientists across the UK to develop new research tools, resources and infrastructure to improve their understanding of cancer, including rare and hard-to-treat cancers, helping to find better ways to treat them. Professor Blyth said in the launch press release:

“It’s been difficult to build a network of scientists with enough cases of the disease to build a thorough understanding of how to best treat mesothelioma. And this has left people with the disease very few treatment options.”


Now that the UK has left the European Union, how do we retain collaborative cancer research with the EU and other research-focused countries? What steps are the Government taking to safeguard vitally important research initiatives such as this one, which rely upon data sharing across borders? The Government have said that they will diverge and have their own data protection scheme in the future. Could that prove to be detrimental to research efforts, innovation and of course patients in the UK? I also flag the publication of the EU’s artificial intelligence white paper, published on 19 February 2020.

What steps are the Government taking to ensure that communities such as Glasgow which are disproportionately affected by mesothelioma are not going to be left behind if they fail to agree a sensible way forward which enables research and innovation to flourish in the post-transition period? Glasgow has some of the highest rates of mesothelioma in the world due to the previous widespread use of asbestos in the shipbuilding industry.

Finally, the main focus today is on the people affected by these devastating diseases who currently have little hope due to the lack of treatment options available. It is for them that we must approve these regulations and continue to do all we can to support them.

[Lord McKenzie of Luton (Lab)]

My Lords, I thank the Minister for introducing these regulations. I love this debate each year here in this Room. It is incredibly powerful, compassionate and knowledgeable, and we should take it to the Chamber so that the wider world can listen to it. We have heard from the noble Baroness, Lady Thomas, about long latency and issues where there is no known cause, which are therefore incredibly difficult to diagnose and treat. I think that that is the situation in a number of cases. We have also heard from the noble Lord, Lord Alton, who is a stalwart of these occasions with his knowledgeable contributions. He spoke in praise of the British Lung Foundation and explained what it has been doing. We heard from the noble Lord, Lord Wigley, and my noble friend Lord Jones about slate quarrymen, reflecting the very real issues that for the noble Lord, Lord Wigley, are deeply personal, which enhances our debate. The noble Lord, Lord Freyberg, had questions for the Minister about collaborative research and what might be lost by our departure from Europe.

As we have heard, the mesothelioma lump sum payments regulations have uprated the lump sum payments for sufferers and their dependants in line with the September 2019 consumer prices index, which was 1.7%. We recognise the fact that the Government have reviewed the rates to maintain their value in line with inflation, although they are actually under no statutory obligation to do so, a point which I think has been made.

The Child Maintenance and Other Payments Act 2008 made provisions to fast-track up-front lump sum payments for people diagnosed with diffuse mesothelioma and their dependants. The scheme was introduced in recognition of the challenges that people can frequently face in obtaining compensation from one source or another and the fact that sufferers usually die within months of being diagnosed. It operates alongside the scheme established under the Pneumoconiosis etc. (Workers’ Compensation) Act 1979, with the one difference being that the 2008 provisions assume 100% disability. That is not the case for pneumoconiosis.

These dust-related diseases are very much a reflection of our industrial past and the carelessness with which employers approached health and safety. The 2008 scheme provides for payments to be made to dependants where a person has died from mesothelioma before a claim can be completed. We are told that the 2008 Act payments are made from a compensation recovery mechanism which are then recovered from any subsequent successful civil compensation claim. This being the case, can the Minister tell us what levels of compensation have in fact been recovered in recent years and how do they relate to the 2008 Act payments? The 2008 scheme provides a one-off payment to sufferers who have no occupational link to the disease or who are self-employed. They include, for example, sufferers who live in close proximity to a workplace containing asbestos, those exposed to asbestos in the environment and to family members exposed via workers’ clothing. Payments can be made to dependents but not at the same rate as sufferers, which is a bone of contention that I will come on to.

Mesothelioma is a type of cancer that develops in the lining covering the outer surface of some of the body’s organs and is usually linked to asbestos exposure. Mesothelioma mainly affects the lining of the lungs, although it can affect the lining of other organs as well. It takes some years to develop, but it is usually rapidly fatal following the onset of symptoms. Unfortunately, it is rarely possible to cure mesothelioma, although treatments can help to control the symptoms. That is why it has been important to hear about some of the developments in research. It may take some while, but we need to keep the pressure up, so the engagement that noble Lords have with those involved is incredibly important.

According to the NHS website, more than 2,600 people are diagnosed with mesothelioma each year in the UK. Most cases are diagnosed in people aged 60 to 80, and men are affected more commonly than women. Last year, the Minister said that deaths from mesothelioma are at a historically high level, as we have heard again today, and the widespread use of asbestos in the decades after World War II means that this issue may be with us for some time to come, sadly.

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We have talked about equalising dependant payments. I have said that it is about making sure that the money goes to those with the disease and, via different payment methods and amounts, to those who have lost people.

[Lord McKenzie of Luton]

I am trying to understand whether the compensation recovery mechanism produces more than, less than or the same as the money needed for the 2008 arrangements and whether there is a surplus which might be applied to equalisation. I am not sure that the Minister has dealt with that point; perhaps she will come on to it.

[Baroness Stedman-Scott]

I have had a number of detailed questions about data, which I will come to.

The noble Lord, Lord Alton, mentioned the insurance industry’s funding for mesothelioma research. Again, I will cover that in the letter.

I have had numerous requests for information: industry led, geographically led and fiscally led, whether there are surpluses or anything else, and about the number of claimants in the slate quarry. I hope noble Lords will understand that I am not able to give them that information at the moment, but I will work with officials to get a complete set of data, where it is available, and I will cover the points raised. Information on the slate quarrymen awards is held by the department. It might be difficult to get, but we will have a go.

The noble Lord, Lord McKenzie, asked what proportion of the amounts paid under the 1979 Act and 2008 Act schemes is recoverable from claims for civil damages. In 2018-19, a total of £24.5 million was recovered. In the current financial year to December 2019, £21.9 million has been recovered. The net cost of the 1979 and 2008 Act schemes to the Government in 2018-19 was £28.2 million.

The noble Lord asked about the number of cases of mesothelioma and requested a breakdown by profession. I will include that in the data that I send out.

Dependants receiving compensation are mostly women. I was asked whether we had considered equality issues. The intention of the scheme was to compensate those who had contracted the disease as a result of their working environment. Historically, those who worked in hazardous environments tended to be men, and this is reflected in the current gender balance of claims.

The noble Lord, Lord McKenzie, asked about the levy on the insurance industry and the cap rate of 3% of gross written premium. The levy is reviewed annually using estimates based on management information from the scheme administrator. The levy for 2019-20 is £33.3 million, which is below the cap of 3% of the employer liability gross written premium.

Trade deals were raised and the need to make sure that no opportunity is given for asbestos-related issues to arise. Our standards in the UK are very high and we have no intention of lowering them.

The noble Lord, Lord McKenzie, asked also about progress on employer liability tracing. I will need to write to him about that once I have found out.

As last year, this has been a wide-ranging debate which has shown this Committee’s interest in and commitment to the people who have suffered this dreadful disease. I thank Members for their many and helpful contributions. I think that I have dealt with a lot of the questions raised, but, as I have promised, I will go through Hansard with my officials and make sure that every noble Lord gets an answer to their questions. The Government recognise the important role played by these schemes in providing financial support to people diagnosed with mesothelioma and the other dust-related diseases covered by them. The regulations will ensure that the value of the schemes is maintained. I commend the uprating of the payment scales and ask for approval to implement it.