Infected Blood Compensation Scheme Regulations 2024

Lord Ponsonby of Shulbrede Excerpts

Monday 21st October 2024 Lords Chamber

Moved by

[Lord Ponsonby of Shulbrede]

That the Regulations laid before the House on 23 August be approved.

Relevant document: 2nd Report from the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument)

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Ponsonby of Shulbrede) (Lab)]

My Lords, I start by reminding the House why we are here. The infected blood scandal is a mark of shame on the British state. The infected blood inquiry’s final report, published on 20 May, shed light on the trauma inflicted on thousands of people across the country, through no fault of their own. People were given contaminated blood or blood products, contracted HIV, hepatitis C and hepatitis B, and then for years had their voices ignored. People who loved, knew and cared for someone who was infected—those who were affected—similarly had their voices ignored. This did nothing but compound the trauma of all involved.

The infected blood inquiry’s second interim report set out 18 recommendations on compensation, informed by Sir Robert Francis’s 2022 compensation scheme study. The inquiry was unequivocal that a compensation scheme must be set up immediately. The regulations we are debating are essential for delivering that compensation scheme and getting money to people as quickly as we can.

The scheme is based on the recommendations and principles put forward by the inquiry. In line with these, and supported by the advice from the inquiry response expert group and the engagement exercise that Sir Robert Francis undertook in June, the Government have sought to design a fair and comprehensive compensation scheme that will be quick and simple for eligible applicants to access. We support the shared determination across the House to deliver compensation as swiftly as possible and with the minimum possible delay. These regulations are a significant step towards that.

I turn first to eligibility. The scheme and the regulations define people who are eligible as infected people, in line with recommendation 2 of the inquiry’s second interim report. This covers people infected with HIV, hepatitis C and hepatitis B, including people directly infected by treatment with blood, as well as people indirectly infected via transmission from a directly infected person.

Secondly, the regulations establish a core route for claiming compensation as an infected person. The core route provides compensation under five awards, or categories of loss, as set out in recommendation 6 of the inquiry’s report. These awards include an injury impact award, a social impact award, a care award, a financial loss award and an autonomy award, which together will comprise the total compensation award to be given to infected individuals, or to the estates of any deceased individuals, to recognise the wide-ranging harm resulting from their infection.

Earlier this year, the Victims and Prisoners Act established the Infected Blood Compensation Authority in law to deliver the scheme, and with these regulations we are providing the authority with the legal powers needed to begin making payments. The regulations also provide further detail on how the Infected Blood Compensation Authority will accept applications and pay awards.

Since the authority was established in law, it has been working hard to design and implement effective, simple and secure processes for members of the community, with their input, to claim the compensation that they so clearly deserve. Last week, the Infected Blood Compensation Authority reached out to the very first claimants under the infected blood compensation scheme. The authority is taking a “test and learn” approach, which will ensure it can take on board feedback and improve the service before it opens its full compensation service. This is a significant step towards our shared intention to begin payments by the end of this year and ultimately will ensure that the service is as fast and as simple as possible when it opens for everyone. I hope this step provides confidence that we, and the authority, are absolutely committed to driving forward progress with the scheme in a way that puts the infected blood community at the heart of our work. The Government expect the authority to begin making payments by the end of this year.

I will speak now to the concerns raised by the Secondary Legislation Scrutiny Committee, which I believe noble Lords may wish to raise in today’s debate. As the committee noted, the infected blood scandal stretches back over many decades and access to records, such as medical records, may not be possible or may be very challenging. Where this is the case, the authority will need to make objective decisions relying on the evidence that is available to determine, on the balance of probabilities, that treatment with infected blood occurred. The authority will provide assistance to those who believe their medical records have been lost or destroyed, and evidencing eligibility will be easier, faster and more compassionate than, for example, through any court proceedings.

The committee also raised concerns around the complexity of the regulations and the Explanatory Memorandum not being clear enough to explain the practical operation of the scheme. Given the complexity of the regulations, we were aware that they would not enable individuals to understand the scheme. That is why, alongside the publication of the regulations and the Explanatory Memorandum, the Government published a detailed policy paper in August on how the compensation scheme will operate, setting out what individuals can expect to receive, including case study examples. Additionally, the Infected Blood Compensation Authority will aim to ensure that appropriate advice and support are available to assist people with managing their compensation awards, accessing financial services and accessing benefits advice where relevant.

Thirdly, the committee raised a concern regarding how claimants will receive payments. As set out in recommendation 10 of the infected blood inquiry’s second interim report, the regulations include an option for members of the community to choose between receiving payments as periodic compensation or as a lump sum. Providing people who are due compensation with a choice in how they receive their money is something the infected blood community has highlighted as important to claimants. The regulations include a mechanism for electing for periodic compensation payments or a lump sum, responding to the wishes of those who have told us they want this option.

We have also provided an alternative for those currently receiving support scheme payments through the infected blood support schemes. The IBSS route was developed following the recommendations of Sir Robert Francis, who undertook engagement with representatives of the infected blood community in June.

The biggest concern raised in this engagement was around the continuation of the existing support scheme payments. Following Sir Robert’s recommendations, the Government have agreed that support scheme payments will continue for life for those who elect the IBSS route. This route will be available for those who applied to be registered on a support scheme on or before 31 March 2025 and delivered as part of the compensation package.

In a tariff-based scheme designed to be fast, fair, consistent and secure, we hope that people will be satisfied that they have been provided with full and fair compensation, as the scheme sets out. However, should this not be the case, the regulations make provision concerning review of decisions made by the authority and for appeals to the First-tier Tribunal.

I know that this House is in complete agreement when it comes to paying long-overdue compensation to those impacted by this harrowing scandal. Following the passing of the Victims and Prisoners Act, these regulations are the next substantial step towards getting money into the hands of those who deserve it. However, the work is far from finished and I pay tribute to the noble Baroness, Lady Brinton, for providing the opportunity for the House, through the regret amendment that she has laid, to recognise that there is more work to be done to establish the scheme for parents, children, siblings and carers. I reassure the House that a second set of regulations will provide for other elements of the compensation scheme, including compensation payments to people who are affected and for claims outside the core route. Subject to parliamentary approval, the Government are aiming for the second set of regulations to be in place by 31 March 2025 to support our intention that people who are affected can start receiving payments in 2025.

I hope that colleagues will join me in supporting these regulations and I beg to move.

Amendment to the Motion

Moved by

--- Later in debate ---

The Government have said they will bring forward the necessary regulations for this large cohort of people when parliamentary time permits. However, as the Minister knows, those people see time moving relentlessly on and some are very worried they may not live long enough to receive the compensation promised to them. I am the first to recognise how much work is involved in collecting and collating the names and other information necessary to determine eligibility under the heading of “an affected person” and how complicated the regulations will inevitably have to be. However, without stealing the thunder of the noble Baroness, Lady Brinton, I press the Minister on this issue: is it possible for him to go further than the words “when parliamentary time permits” and give us a sense of a more precise timescale for laying the second set of regulations? Can he also shed a clearer light on when payments are likely to be made to the qualifying individuals?

[Lord Ponsonby of Shulbrede (Lab)]

I thank both the noble Baroness, Lady Brinton, and the noble Earl, Lord Howe, for their very thoughtful discussion of the regulations. I recognise they have both had long experience of these issues. As the noble Baroness, Lady Brinton, said, the three of us were involved in the passing of the Victims and Prisoners Act, which was a precursor to these regulations.

In response to the very last question of the noble Earl, the Government are aiming for a second set of regulations to be in place—regarding affected people—by 31 March 2025. It is our intention that people who are affected can start receiving payments in 2025. That was in my original speech and that is the Government’s commitment.

I will make a general point before I start trying to answer some of the individual questions. It is in the best interests of everybody that the House continues to work collaboratively on this issue—both for infected and affected people. All sides of the House acknowledge the British state has failed the victims, and these regulations are a step on the road to addressing the infected victims.

Of course I will agree to meet the noble Baroness, Lady Brinton, and the noble Earl, Lord Howe, if he so wishes. I will write with detailed answers if I fail to answer any of the questions—no doubt I will fail to answer some.

As the noble Earl quite rightly said as he introduced his comments, these regulations are fulfilling one element of Sir Brian Langstaff’s report. A lot of the questions have been about the second element: the affected people. As he rightly said, 69 of the 74 recommendations were accepted.

On the bulk of the speech by the noble Baroness, Lady Brinton, which was about the affected people, the timetable available to develop these regulations was necessarily limited. The regulations prioritise people who are infected as a result of the infected blood scandal. Where people have sadly died, the recommendations make provisions for claims under their estate. This ensures the Infected Blood Compensation Authority can start delivering the compensation scheme for the infected, as per its statutory function.

The Government’s decision to split, and therefore sequence, infected and affected regulations was taken with the reassurance that it would allow orderly implementation of the legal framework without impacting or delaying the delivery timetable for payments to infected and affected victims. Subject to parliamentary approval, the Government are aiming for the second set of regulations to be in place by 31 March next year, as I mentioned, with an expectation of beginning payments by the end of the year.

The noble Baroness, Lady Brinton, also asked about the eligibility of affected siblings and children. The scheme’s definition of siblings is based on the recommendations made in Sir Robert Francis’s compensation framework study. The definition recognises the likely heightened impacts on a sibling living with an infected person during childhood. This is not to dismiss or deny the suffering of those who were adults when their siblings were infected. Individuals who were adults when their sibling was infected may be eligible for compensation through the scheme as a carer. Siblings will be eligible where under the age of 18 they lived in the same household as an infected person for the period of at least two years after the onset of the infection. Similarly, the scheme’s definition of children of the infected person is based on the recommendations made in Sir Robert Francis’s compensation framework study. The scheme recognises the likely heightened impact on a child who was under 18 while living with a parent who was infected.

I hope that provides some clarity to the noble Baroness. However, I will also acknowledge the examples she gave of the terrible effects on affected people and the terrible experiences, some of which she spoke about. It is absolutely not right to suggest that affected people are somehow second-class citizens. That is not right; it is just a practical decision which the Government have made to try and progress these matters as soon as possible. These regulations are for the infected group, but I have set out as clearly as I can what the Government’s intentions are for the affected group.

The noble Earl, Lord Howe, spoke about the complexity of regulations and the Explanatory Memorandum. Work is under way on a second set of regulations. We will take on board the committee’s helpful feedback when drafting the Explanatory Memorandum for those regulations. We recognise the point made by the SLSC on the complexity of these regulations, but it is absolutely the Government’s intention to carefully consider the committee’s report and findings.

The noble Earl asked about the two channels of funding: the core route and the IBCS route. This is an additional level of complexity, but it was recommended by Sir Robert Francis because it was the wish of the infected group that the existing method of funding should continue. Because we accepted that recommendation, that inevitably adds to the complexity.

The noble Earl also asked about psychological illness, and in particular whether recommendations were accepted by the report. I am afraid I do not know the answer to that, but I will write to the noble Earl and the noble Baroness about it.

The noble Earl also raised Treloar’s school and unethical experimental research on certain young children. It is absolutely not the intention that this particular scandal should lead to any delay in the rollout of infected or affected compensation, but we recognise the particular, scandalous nature of what happened to those victims.

In conclusion, we regard the timetable as realistic. In opposition, we worked constructively with the then Government, and we have continued working as practically as possible to try to move the timetable forward. All of us across this House must continue to work collaboratively. These regulations ensure that we can finally deliver compensation to those who fought so hard; they deserve nothing less. I beg to move.

[Baroness Brinton (LD)]

My Lords, I thank both the noble Earl, Lord Howe, and the Minister for their contributions to this debate. We are all broadly on the same page. I do not think there is a difference on the principles of moving ahead, and certainly absolutely no intention on my part to try to slow down or block the approval of the regulations today.

I will not go through the arguments we have all made, but the key thing the Minister did not cover was the issue of communication, which seems to me to be the most important thing moving forward. If there is confusion and distress on the one hand, and complexity and a large number of recommendations being modified on the other, it is absolutely understandable that the affected and the infected may have concerns about what is going on. I really hope that when we meet, the Minister will talk to us about what he plans to do.

I pay personal tribute to the noble Earl, Lord Howe, for the way he worked with the communities over the years. That baton has clearly been handed over to the other side of the House. We need to rebuild trust; there are a lot of very distressed people out there at the moment. With that, I beg leave to withdraw my amendment.