Infected Blood Compensation Framework Study: Terms of Reference

Michael Ellis Excerpts

Thursday 23rd September 2021 Written Statements

[The Paymaster General (Michael Ellis)]

On 20 May my predecessor, my right hon. Friend the Member for Portsmouth North (Penny Mordaunt), announced the appointment of Sir Robert Francis QC to carry out an independent study to look at options for a framework for compensation for victims of infected blood. The study will make recommendations for compensation, before the infected blood inquiry reports. Terms of reference of the study were to be finalised following consultation between Sir Robert and those infected and affected. The consultation period concluded in August, and Sir Robert wrote to my predecessor with his recommendations.

Sir Robert’s consultation received a positive response from the infected and affected community. A total of 447 formal responses were submitted (including from many of the legal representatives of infected and affected core participants of the inquiry), along with over 150 further representations, primarily personal accounts from the infected and affected on how this tragedy has affected their lives. These accounts were of great assistance to Sir Robert in reviewing the draft terms of reference. Sir Robert wishes to express his gratitude to the many individuals who contributed to the consultation, in many cases having to relive the awful experiences they have suffered over so many years, and I would like to echo his gratitude.

Sir Robert’s recommendations identify the key issues that the study should consider. They offer assurance to the infected and affected communities that the matters of most concern to them will be considered by the study. I am therefore happy to accept Sir Robert’s recommendations in full, and I am today publishing the following terms of reference without amendment:

Rationale for compensation

To consider the rationale for compensation as a matter of general principle and in relation to any particular classes of compensation, recognising that it is not for the study to pre-empt the determination by the infected blood inquiry as to what, if any, rationale is supported by the evidence it has received;

Independent advice to the Government

Give independent advice to the Government regarding the design of a workable and fair framework for compensation for individuals infected and affected across the UK to achieve parity between those eligible for compensation regardless of where in the UK the relevant treatment occurred or place of residence. While the study is to take into account differences in current practice and/or law in the devolved Administrations, it is not asked to consider whether delivery of that framework should be managed centrally or individually by the devolved Administrations;

Scope of compensation

To consider the scope of eligibility for such compensation (including the appropriateness or otherwise of any conditions such as “cut-off” dates), and whether it should be extended beyond infected individuals and their partners, to include for example affected parents and children, the wider affected family (e.g. siblings), and significant non-family carers and others affected, either because of the impact of caring responsibilities or the effects of bereavement or some other impact; to include consideration of former and new partnerships/marriages; and whether the estate of any individual who has died should be eligible for compensation;

Categories of injury and loss

To consider the injuries, loss and detriments that compensation should address, in relation to the past, present and future, including:

(a) the physical impact and consequences of infections (including the effect of any treatment, and potential future adverse effects);

(b) infections that cleared naturally; and the risk of any significant or long-term side effects of treatment (such as liver damage, increased risk of cancer) even if they are yet to materialise;

(c) the mental health, social and financial impacts (including access to financial services)—both actual and in terms of loss of opportunities—suffered by both the infected and affected; and

(d) other types of loss if appropriate;

Types of award and method of assessment

To consider:

(a) the extent to which any framework should offer compensation on the basis of an individualised assessment and/or fixed sums or a combination of these (including consideration of the position of an individual who was both infected, and affected by another individual’s infection);

(b) whether awards should be by way of final lump sums, periodical payments or both;

(c) whether an individual should be required to prove matters (if so what types of matters, by what means, and to what standard);

(d) whether there should be any limitation by way of time or other bar on entitlement or claim, and whether any existing time bars should be maintained;

(e) the extent to which compensation should be limited to matters currently recognised by the law (taking into account any differences in the law across the UK) on damages and evidence as recoverable for the purposes of compensation, or, if not, the basis on which broader matters should be taken into account;

Measures for compensation

To consider the measures for compensation, looking at other national schemes (for example, the compensation tribunal established in the Republic of Ireland) to examine their merits or otherwise, and experiences, both as to form (i.e. administration/process) and the substance of compensation;

Relationship with current schemes

To consider the relationship between a compensation framework and other receipts and payments by individuals, including: (a) the pre-existing financial support schemes; (b) legal claims; (c) welfare benefits and tax;

Options for administering the scheme

To consider options for administering the scheme (including but not limited to what bodies, organisations or tribunals might need to be established to facilitate such administration); what principles, aims or criteria etc might underpin the development of an appropriate scheme; and any ancillary matters which should be considered such as interim payments, publicity of the scheme, outreach to potential claimants, and support;

Other issues

To consider other issues that, in the course of his investigations, Sir Robert considers relevant; and

Reporting to Government by February 2022

To submit to the Government its report and recommendations as quickly as possible and no later than the end of February 2022, to provide the Government with advice on potential options for compensation framework design.

Sir Robert and his team will now begin the more detailed conversations and analysis to look into the detail of the issues raised by the infected and affected community. This will allow him to produce a set of comprehensive recommendations to the complex issues involved.

I, like my predecessor, am deeply committed to ensuring that Sir Brian Langstaff’s independent public inquiry has all the resources it needs to complete its work; in Sir Brian’s words, “as quickly as thoroughness permits”. The infected blood scandal continues to claim the lives of infected people, and those directly affected have waited too long for answers, and for justice.

[HCWS305]