Mesothelioma Lump Sum Payments (Conditions and Amounts) (Amendment) Regulations 2019

Lord McKenzie of Luton Excerpts

Thursday 14th February 2019 Lords Chamber

[Lord McKenzie of Luton (Lab)]

My Lords, this has been a full debate, and many contributors to it have had at least indirect experience of this wretched condition. I will comment on a few contributions before going on to my script.

The noble Lord, Lord Freyberg, referred to the historically long-latency circumstances and the need to make sure people understand that occupational lung disease is not a thing of the past—I agree with that. The noble Baroness, Lady McIntosh, asked how people get information about what is available. The short answer is through campaign groups, trade unions, and people like the noble Lord, Lord Alton, who has been involved in this for a long time; they are a good and reliable source of information about what is going on, as is, I am sure, the HSE. The noble Lord, Lord Wigley, talked about quarrymen; this has cropped up in the past from time to time, but as yet there has been no resolution. I am grateful to the noble Lord, Lord Alton, whose knowledge of where we are on this and the history of it is second to none; I know some of it but have nothing like the wealth of experience that he brings. My noble friend Lady Donaghy asked about cross-departmental spend, and reminded us that we are dealing with heart-breaking circumstances. This is perhaps not the usual sort of debate we have.

We thank the Minister for introducing these two regulations, which we are discussing together. Obviously we will be supporting each of them. One is specifically concerned with mesothelioma and the 2008 regulations, and the other with the Pneumoconiosis etc. (Workers’ Compensation) Act 1979, which encompass other dust-related diseases.

As we have heard, they each make provision for lump sum compensation to people suffering from these diseases or for compensation for their dependants. I am not sure whether many noble Lords are aware of some very recent publicity about a situation local to me. Vauxhall Motors in Dunstable was prosecuted successfully for the death of a spouse; her husband worked at the plant, and because she hugged him when he came home at night, that—the nexus—was enough to give her mesothelioma. It is a tragic situation, but one of many. I am sure that Vauxhall will be properly dealt with.

Another point arises from that. It has sometimes been suggested that knowledge of mesothelioma is relatively modern—it is not. Some of the press reports on this refer to the fact that it goes back to the 1960s, if not earlier. Frankly, we were faced with circumstances where employers, and certainly those involved in liability insurance, did not do what they should have done with regard to their responsibilities.

In the case of the workers’ compensation Act 1979, the provisions apply to one of a range of diseases we have heard about which have been caused through accident or exposure in employment. These must have generated a claim to IIBD and not have given rise to a civil action against a former employer. The diseases in question are pneumoconiosis, byssinosis, diffuse mesothelioma, bilateral diffuse pleural thickening and primary carcinoma of the lung when accompanied by asbestosis. I understand that it may still be possible to get compensation for an asbestos-related disease under the 2008 scheme even if it is ineligible under the 1979 scheme. The later scheme does not require a work nexus: the oft-cited example of a family member washing clothes is now made much more poignant by the press reports to which I just referred.

The 2008 payments scheme is for no-fault compensation and includes coverage of the self-employed. Although monetary compensation is no substitute for a life, it can help with practical issues, especially if available speedily. We should note at this point that the diseases covered very much reflect our industrial past and a careless approach to matters of health and safety. Unfortunately, we have not heard from my noble friend Lord Jones, who normally contributes powerfully to these debates, but we have heard from others.

I note with approval the point made by the Minister in the other place in praise of the Health and Safety Executive—in stark contrast to the prior contribution of David Cameron on such matters, who determined that Britain’s health and safety culture would be killed off for good by the Government. It is a pity that, notwithstanding the Minister’s intervention, the HSE has seen dramatic budget cuts.

Mesothelioma is a type of cancer that covers the lining of the body’s organs. It is invariably caused by exposure to asbestos and results in death. It is a long-latency condition, as we have identified, and can emerge 40 to 50 years after contact with asbestos. To be fair, in introducing the regulations, the Minister let us know how many individuals have died and the forward projections.

As was debated in the other place, asbestos is still present in many structures, particularly in our schools—not to mention in this building. The Government used to have in place robust communications about the dangers of asbestos and messages about how it should be treated. What is the current position?

The level of compensation payable has been increased by 2.4% in accordance with the September 2018 consumer prices index. Can the Minister confirm that indexing of the 1979 and 2008 Acts compensation amounts has been routinely carried out, notwithstanding that there is no statutory obligation to do so? Several noble Lords, including the noble Baroness, Lady Thomas, at this end, pressed the Government on why the uprating had not been made statutory—on reflection, that is an entirely reasonable point.

A key difference between the two sets of regulations is that the mesothelioma regulations have a schedule only for sufferers and dependants. The pneumoconiosis schedule is for both, and also reflects the degree of disablement. The noble Lord, Lord Alton, introduced some very important data about the differential between those two scales. In the case of mesothelioma, the compensation schedules reflect the fact that it has been treated as invariably fatal.

I have some questions for the Minister, the first of which she has already answered. When the 2008 scheme was devised, it was determined that levels of payments would be funded from recoveries from civil action until such amounts matched levels of payment under the 1979 Act. What are the current levels of recovery? What drives the quantum of lump sum payments under the 1979 Act?

[Baroness Buscombe]

Can the noble Lord repeat the question?

[Lord McKenzie of Luton]

Yes, I should speak up. What are the current levels of recovery under the 1979 Act? Also, what drives the quantum of lump sum payments under that Act, which created the schedule in the first place? We know what the uprating is about.

The annual question posed is about bringing payments for dependants up to the level payable to sufferers. I join those who say it is time that we should do this. Debate in the other place on the regulations was in part conflated with arrangements in the 2012 Act, which I think was introduced only in 2019. Historically, as we know, there were concerns about low levels of compensation made available for these long-latency diseases. Focus for a long while was on the traceability of employer liability policies and, although progress was made, it was considered that in too many cases employers and their insurers were avoiding liability. I understand that this led to the diffuse mesothelioma payment scheme, introduced in 2014 and led by the noble Lord, Lord Freud, who deserves credit for his difficult negotiation with the insurance sector.