Draft Mesothelioma Lump Sum Payments (Conditions and Amounts) (Amendment) Regulations 2018 draft Pneumoconiosis etc. (Workers’ Compensation) (Payment of Claims) (Amendment) Regulations 2018

Sarah Newton Excerpts

Tuesday 20th February 2018 General Committees

[The Minister for Disabled People, Health and Work (Sarah Newton)]

I beg to move,

That the Committee has considered the draft Mesothelioma Lump Sum Payments (Conditions and Amounts) (Amendment) Regulations 2018.

[The Chair]

With this it will be convenient to consider the draft Pneumoconiosis etc. (Workers’ Compensation) (Payment of Claims) (Amendment) Regulations 2018.

[Sarah Newton]

It is a pleasure to serve under your chairmanship, Ms Ryan. The two draft measures will increase the value of lump sum awards payable under the Pneumoconiosis etc. (Workers’ Compensation) Act 1979 and the diffuse mesothelioma payment scheme, which was set up by the Child Maintenance and Other Payments Act 2008. The new amounts will be paid to those who satisfy all the conditions of entitlement on or after 1 April 2018.

The 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 increase the amounts payable from April 2018 by the consumer prices index rate of 3%. The same rate is being applied to some other social security disability benefits and the industrial injuries disablement benefit.

The Government recognise the suffering of individuals and their families that is caused by the serious and often fatal diseases resulting from exposure to asbestos and other listed agents. Individuals affected may be unable to bring a successful claim for civil damages, mainly because of the long time lag between exposure and onset of the disease, which can often stretch for decades. Therefore, by providing lump sum compensation payments through these two schemes, we fulfil an important role to those who have these dust-related diseases. As well as compensating people who cannot make civil claims, the schemes aim to ensure that people with such diseases receive compensation in their lifetime, while they can still benefit from it, without having to await the outcome of civil litigation.

I will briefly summarise the specific purpose of these lump sum compensation schemes. The Pneumoconiosis etc. (Workers’ Compensation) Act provides—for simplicity, I shall refer to this as the 1979 Act scheme—a lump sum compensation payment to those who have one of five dust-related respiratory diseases covered by the scheme, who are unable to claim damages from employers because they have gone out of business and who have not brought any action against others for damages. The five diseases covered by the 1979 Act scheme are diffuse mesothelioma, bilateral diffuse pleural thickening, pneumoconiosis, byssinosis and primary carcinoma of the lung if accompanied by asbestosis or bilateral diffuse pleural thickening.

The 2008 mesothelioma lump sum payment scheme widens the criteria for compensation to those who have contracted diffuse mesothelioma but who are unable to claim compensation for that disease under the 1979 Act scheme—for example, the self-employed or people whose exposure to asbestos was not the result of work.

[Mr Barry Sheerman (Huddersfield) (Lab/Co-op)]

This is a complicated area, and I have a particular interest in it because a brother of mine died after working for British Petroleum and using asbestos in the days when it was not seen as a danger. He died in great agony, and he had a terrible fight with British Petroleum for any compensation at all. Will the new regulation detract from the capacity for people to sue their employers for a decent sum?

[Sarah Newton]

I am very sorry to hear about the hon. Gentleman’s sad loss. It is disappointing to hear of such a large and profitable organisation putting up such a case to resist providing compensation to an employee who was no doubt valued. The regulations were brought in specifically to address that; we know that the onset of these terrible diseases can come after many years, and often after people have left employment. However, once they are diagnosed people can, tragically, die very quickly, and we do not want them to spend their remaining time trying to pursue civil litigation, with a huge fight on their hands. That is why the lump sum payments are available.

Of course, the scheme and the Department will seek to claim back any payments that can be reclaimed through our own civil litigation; but the scheme was set up specifically to address the concern that the hon. Gentleman raised, so that no one else in that situation would have to go through what his brother went through. Today’s regulations are just about increasing the payment by 3%. We are not changing the scheme in any way. I think that Members on both sides of the House welcomed the measures when we introduced them.

[Mr Sheerman]

When people who suffer from such a disease get involved in the system, they face some of the hardest, sharpest lawyers that can be found. My brother had an apprenticeship at BP and worked there all his life. The lawyers found out that when he was in the Army he smoked, and that was extremely damaging. I have never seen sharper, more unscrupulous people than those employed by reputable companies to make sure that they do not pay their workers their just deserts.

[Sarah Newton]

I thank the hon. Gentleman for that further intervention. It is clearly disappointing to hear of such practice, but I understand from the independent advisory board, the Industrial Injuries Advisory Council, that since the introduction of redress in the form set out in the schemes there have been improvements in corporations’ behaviour, because they understand that the Government see the conditions in question as absolutely terrible. There is far greater understanding of those conditions and their causes than there was in the past, and it is expected that corporations will settle swiftly. I am glad if I have been of some reassurance about that.

I think it is important that under both schemes, a claim can be made by a dependant if the person with the disease has died before being able to make a claim. That can give some comfort to the remaining relatives. Payments under the 1979 Act scheme are based on the age of the person with the disease and their level of disablement at the time they are diagnosed. The highest amounts are paid to those who are diagnosed at an early age and with the highest level of disablement. All payments for diffuse mesothelioma under the 1979 Act scheme are made at the 100% disablement rate—the highest rate of payment—owing to the seriousness of the disease. Similarly, all payments under the 2008 scheme are made at the 100% disablement rate and based on age, with the highest payments going to the youngest people with the disease. In the last full year—April 2016 to March 2017—3,620 people received payments under both schemes, totalling just over £50 million.

I am aware that the incidence of diffuse mesothelioma is a particular concern of Members, given that the number of deaths from the disease in Great Britain is at historically high levels. The life expectancy of those who are diagnosed with diffuse mesothelioma is poor, with many people dying within 12 months of diagnosis. Diffuse mesothelioma has a strong association with exposure to asbestos, and current evidence suggests that around 85% of all male mesotheliomas are attributable to asbestos exposures that occurred through work.

The number of cases occurring reflects the long latency period of the disease. Our latest available information suggests that there will continue to be about 2,500 diffuse mesothelioma deaths per year for the rest of this decade before annual cases begin to fall, reflecting the reduction in asbestos exposure after its widespread use before 1980.

The draft regulations increase the levels of support through the statutory compensation schemes. I am sure we can all agree that although no amount of money can ever compensate individuals and families for the suffering and loss caused by diffuse mesothelioma and other dust-related diseases covered by the scheme under the 1979 Act, those who have the diseases rightly deserve some form of monetary compensation.

I am also required to confirm to the House that the provisions are compatible with the European convention on human rights. I am happy to do so.

Before I finish, I put on record my appreciation of the excellent work of the outgoing chair of the Industrial Injuries Advisory Council, Professor Keith Palmer. Professor Palmer’s outstanding work on the council over the past 16 years has included six years as a member and chair of the council’s research working group and, latterly, 10 years as the council’s chair, advising the Secretary of State for Work and Pensions and the Department for Communities in Northern Ireland on the industrial injuries benefit scheme.

During that time, under Professor Palmer’s leadership, the council has written more than 80 reports explaining the often complex scientific evidence underlying its recommendations on work-related diseases. Those reports have included recommendations on work-related musculoskeletal diseases that have gone on to benefit farmers, carpet fitters, floor layers and miners, among others. More recently, prescription has been extended for cancers caused by exposure to ionising radiation. On my own behalf and that of my predecessors, I thank Professor Palmer for his contribution and leadership.

--- Later in debate ---

[Sarah Newton]

I thank the hon. Members for Glasgow South West and for Battersea for welcoming and supporting this really important uprating. I am sure that the increase will be welcomed by the people who are affected.

The hon. Gentleman asked why we are uprating using this particular measure. It is commonly regarded as the best measure of inflation. It is the one that the Treasury uses, the Bank of England uses and the Government use for uprating. There is always this debate about which is the most effective measure, but that is the settled view of the Government. At 3%, it is a decent rise that people will experience.

[Mr Mark Harper (Forest of Dean) (Con)]

On that point about RPI, not only is CPI thought to be better, but the Office for National Statistics—the independent statistics organisation—and the UK Statistics Authority have said that RPI is a flawed measure, and it is not counted as an official UK national statistic because it is so unreliable.

[Sarah Newton]

I thank my right hon. Friend for such a helpful intervention. He knows this matter well, having been the Minister in this place before. I am sure he has had to respond to that question in similar debates, and I thank him for that additional point.

The hon. Member for Battersea asked me a number of questions, and I will try my best to get through them all. If I have omitted to make a timely note, I will follow up any unanswered questions after reading Hansard. First, she asked why impact assessments have not been prepared for the statutory instruments. I remind hon. Members that the statutory instruments do not change any policy or existing scheme; they just uprate the amount that is paid. If there were new measures or policies, it would be absolutely right and proper to do an impact assessment in relation to businesses, charities and voluntary bodies; but as there would be no impact, because all of those assessments would have been done when the legislation was introduced, there is no need to do that.

[Mike Amesbury (Weaver Vale) (Lab)]

Surely there is an impact regarding the disparity between payments to sufferers and dependants? It is important to address that.

[Sarah Newton]

The issue of what the person affected by the condition and their dependants receive was a matter of policy when the initial legislation was introduced.

The hon. Member for Battersea also asked about predictions and whether we still hold to the Health and Safety Executive’s most recent predictions of the annual number of deaths. Predicting life expectancy and death from any condition is an art rather than a science. We must listen to the experts; we very much value the work of the HSE and it stands by that estimate. Let me reassure everyone that as long as people suffer from these conditions and need compensation, the scheme will be there. The estimates are to help us to plan the scheme, but they are in no way a limitation on who is eligible for support.

The hon. Lady made a good point about spouses who might have contracted mesothelioma from washing overalls or clothes, or from being exposed to asbestos other than because they were workers. People who contract mesothelioma through contact with their spouse’s clothing are eligible for an award under the 2008 scheme, and the value of such payments are the same as those made under the 1979 Act.

The hon. Lady also asked about the action that the HSE takes to raise awareness of asbestos. The HSE ran a successful and high-profile campaign from October 2014 to October 2015, and it continues that work by making a lot of information available on its website and in its “Beware Asbestos” app. The matter is regularly highlighted through trade magazines and trade associations; as has been mentioned, people who are self-employed are perhaps not aware of the compensation scheme. Such campaigns are aimed at ensuring that people are aware of the dangers and know about the available support, and that every effort is made to reduce exposure to asbestos. In my conversations with the HSE, which is an arm’s length body, I have been assured that it has the resources it needs to do its work. Its funding does not come solely from the Government, and it assures me that it has the funds that it needs to do the important review. I meet the HSE regularly, and it always has the opportunity to raise the issue of resources with me.

The question of why the Government do not equalise dependants’ payments with those made to people who have the disease has been debated in the past, and it was raised again today. We estimate that the cost of equalisation is about £5 million a year, and it is absolutely right that we prioritise the use of resources where they are needed most: for people who live with the disease. If we were to consider equalisation, in addition to the financial implications, legislative changes would be required. That would be a complex task, because awards to dependants under the 1979 Act include payments made in two parts: a payment for the effects of the illness before death, based on the assessed level of disability and the length of time the person had the illness, and a payment made in cases where the death was caused by the disease. At the moment, we see no legislative opportunity for equalisation, and no priority. We want to ensure that people who would benefit from the compensation in their lifetime come forward now and claim it. There are payments available for dependants.

I thank Members for their contributions, which have helped us all to understand how valuable the regulations are, in that they help some very poorly and very disabled people. We want to ensure that the schemes operate really well, because they can play an important part in people’s lives at a very difficult time. I commend the regulations to the Committee and ask for approval to implement them.

Question put and agreed to.

Resolved,

That the Committee has considered the draft Mesothelioma Lump Sum Payments (Conditions and Amounts) (Amendment) Regulations 2018.

Draft Pneumoconiosis etc. (Workers’ Compensation) (Payment of Claims) (Amendment) Regulations 2018

Resolved,

That the Committee has considered the draft Pneumoconiosis etc. (Workers’ Compensation) (Payment of Claims) (Amendment) Regulations 2018.—(Sarah Newton.)