Mesothelioma Bill [HL]

Debate between Lord McKenzie of Luton and Lord Avebury

Wednesday 5th June 2013 Grand Committee

[Lord McKenzie of Luton]

My Lords, we have added our Front Bench names to Amendments 1 and 4 and concur with the two amendments of my noble friend Lord Howarth. I think that the arguments have been fully and effectively made and I do not think that I need to add anything. I take the Minister’s reply to be, “Yes, but not quite yet”, and that is comforting. It is a good way to start our deliberations today.

We are all grateful that we have now seen a draft of the scheme. It arrived this morning at 11.55 am, according to my machine. I wish to make the point that should there arise, after we have had a chance to study it, issues that we might otherwise have parsed today as these amendments go through, we could perhaps use our next opportunity to revisit them. This is not to slow up the overall process but to ensure that we make best use of the draft that we have.

We have also added our names to Amendment 6, about the annual report to Parliament. I concur with my noble friend’s list of issues to be covered. I would add that later in our deliberations we will consider our broader amendment which refers to the possibility of an oversight committee to oversee very much the same type of issues as my noble friend raised, in particular to deal with the issue that the noble Lord, Lord Avebury, raised. One of the concerns that we have throughout the Bill is the extensive engagement and powers that the insurance industry has—the administrator, the technical committee, ELTO setting up the portal. The oversight committee would be one way of at least addressing that scope in the interests of the sufferers. I think that that is for debate on Monday.

My noble friend’s Amendment 3 requires the Secretary of State to publish proposals and make a Statement to Parliament before establishing the scheme. Clause 1(3) currently requires the Secretary of State to,

“publish the scheme as amended from time to time”.

Does the Minister take this requirement as covering my noble friend’s aspiration in Amendment 3? If so, will he put that on the record?

[Lord Avebury]

My Lords—

Pneumoconiosis etc. (Workers’ Compensation) (Payment of Claims) (Amendment) Regulations 2013

Debate between Lord McKenzie of Luton and Lord Avebury

Thursday 7th March 2013 Grand Committee

[Lord Avebury]

My Lords, I echo what the noble Lord, Lord Wigley, has said about the commitments that were made two years ago and about the inconsistency of the Government’s response to the demands that were made, I think in both Houses, at that time. When the equivalent to this order was debated two years ago there was criticism by the noble Lord, Lord McKenzie, and my noble friend Lord German of the gap which had developed between payments under the Child Maintenance and Other Payments Act 2008 to living mesothelioma sufferers and to their dependants after they had died. As the noble Lord, Lord Wigley, has said, it may take some time before a claim is submitted. Very ill patients may not be capable of addressing the matter in time. Equally, it is very awkward for relatives of the sufferer or for the local Asbestos Victims Support Group to get a signature from a patient who may be in great pain and on the point of dying, so that a claim can be submitted on his behalf.

The result was that in 2011, there were 2,952 in-life claims and 270 dependency claims. The Minister gave some statistics about the payments made to these individuals but it would be useful if, when he winds up, he could say something about the rates of claims submitted and separate them into in-life and dependency for 2013 and for the years up to the plateau which he says will occur in 2016. I think that that is a year later than we had previously been told.

In 2011, the average in-life payment was £15,204, while the average dependency payment was £9,026, which is trivial enough compensation when you think about someone who has got this frightful disease and even more so for the widow who has gone through the traumatic experience of seeing her husband die in excruciating pain. Of course, these payments are intended to tide the patient or the widow over pending the settlement of a claim which may lie against the former employer in whose service the exposure to asbestos occurred. For some patients, however, as the noble Lord has explained, the discrepancy is actually widening this year. One would have no hint of this from either the order or the Explanatory Memorandum, but the widow of a mesothelioma victim aged 67 at the time of his death will get £7,180 in 2013, compared with the equivalent figure in 2012 of £7,915 and £17,799 for the in-life claimant.

As the noble Lord, Lord Wigley, said, the reason for that discrepancy, the 9% cut, was explained by the DWP by the fact that it had made a mistake in 2010 in calculating the dependency payments for all ages at 50% plus disablement, and that resulted in overpayments to the band of dependency claimants we are concerned with in 2011 and 2012. As a result of that mistake, the dependency rate moved closer to the in-life rate, which, as I said, was clearly the intention of both Houses when we debated the matter in 2011. Nothing in the Explanatory Memorandum gives a hint of that bizarre outcome. I would be grateful if the Minister could explain why it was not drawn to the attention, at least of the Asbestos Victims Support Groups Forum UK, run by Mr Tony Whitston, who discovered it only by accident.

I should also like my noble friend to explain why we have departed from the principle that used to operate. When a mistake of this nature occurred that operated to the benefit of the citizen, we used to say that public faith was thereby pledged and that the Government would stick to the errors made and pay the amounts now to be issued in recognition of the mistake. Since 2008, lump-sum payments have been recovered by the DWP claims recovery unit in cases where civil claims for compensation are successful, and £21.3 million was recovered under the scheme in 2011. The Government expect that a further £49 million will be recovered over a 10-year period through the tariff scheme funded by insurers to pay compensation in cases where it is not possible to trace employers’ liability insurance.

If the Minister could give an estimate—I do not suggest that he should immediately, but when he has had a chance to discuss it with officials—of the net cost of dependency payments over the 10 years, based on the assumption that equalisation would be achieved in a straight line over that period, that would be helpful. The calculation should assume that over the same period, the cut-off age for those payments is raised from 67 and over to 77 and over, the cut-off age for in-life payments over the same 10 years. That would be useful in assessing the likelihood of being able to equalise the payments over that 10-year period.

I recognise that we will not secure any improvement in the lump-sum payment scheme for this year, because the parliamentary process does not allow that to happen. It is a defect in our system that so much is done by secondary legislation, which cannot be amended. In cases like this, where the Government obviously know that what they are proposing is highly controversial, they should offer the stakeholders concerned the chance to put their views forward at a Select Committee-type hearing before coming to a final decision. It is surely wrong that Parliament should be confined to expressing nugatory complaints about decisions such as this which affect people with mortal illnesses.

[Lord McKenzie of Luton]

My Lords, I start by thanking the noble Earl, Lord Howe, for introducing the regulations. I am bound to say that we are used to seeing a DWP Minister deal with them, but we are delighted that it is the noble Earl. I do not know whether that is a passage of a change in policy; we would be interested to hear if it is.

We have made known our general position on uprating by CPI rather than RPI, and that has not changed, but we can support the thrust of the regulations and maintain consensus about these two very important schemes. We are delighted in particular that these payments have not been subjected to the 1% uprating cap.

I note that the alignment of payments between the two schemes both for claimants and dependants has been maintained, and this is obviously something that we support. It is an important matter. But both the noble Lords, Lord Wigley and Lord Avebury, raised the point about the disparity between claimants and their dependants. Certainly, it is my recollection that it was the aspiration that the gap between these amounts be closed, or at least narrowed. Perhaps the Minister can tell us when an assessment was last made of the prospect of achieving this and whether there are any plans to do so.

Both noble Lords who have spoken referred to an error in 2010 and a correction to it which seemed to slip through the Explanatory Notes that we have today. That is quite possible, but an error in 2010 would have been on our watch if it was in the early part of the year. I was trying to recall what that might be. Certainly, if the adjustments that have flowed from it have not been fully explained, that is not good practice, and we would be interested to hear from the Minister on that point.

I am aware from the Cancer Research UK website of several clinical trials being undertaken in respect of mesothelioma and I wonder whether the Minister, wearing his Department of Health hat, has anything that he wishes to impart on the subject. I was going to ask a question about projections of peak numbers, but he dealt with that in his presentation.

The Minister also dealt with the question of pre-1948 schemes saying that people previously under those schemes would be transferred to IIDB. He said that most would receive an increase of up to £5 per week and obviously that is to be welcomed. He also said that no one would lose out, but is that as a result of specific transitional arrangements and protections that are in the scheme?

The Minister pre-empted another question. He has given us an update on the amounts of compensation paid under the two schemes for the previous year and the current year. But perhaps he can also let us have the figures for compensation recovery for these same periods. Compensation recovery was meant to fund certainly the 2008 scheme and contribute to the 1979 scheme.

On the subject of compensation recovery, the tracing and availability of employer liability insurance is clearly relevant. The Minister will be aware of the consultation launched by the previous Government—indeed, he referred to it—on the Employers’ Liability Insurance Bureau as a fund of last resort when employer liability policies could not be traced. The Government's belated response to that consultation—it was slipped out on the last day of the parliamentary Session in July 2012—was a huge disappointment.

Despite what the Minister said in introducing the regulations, could we have an update on progress on this? There are concerns around the scope of the bureau, time limits for making claims and opportunities for dependants to engage. The formulation that we heard a moment ago was that these things would go forward when parliamentary time allowed. We have a week spare as a result of the extra week that we were granted just today, so I am not sure what the pressure on the parliamentary timetable is that precludes this coming forward. It has been a long-term aspiration because we know that there are difficulties in identifying employer liability insurance policies.

The Minister will also be aware of government plans to change the basis on which employees will be able to claim compensation for injury and ill-health caused by work. There is the proposition that claims in the future will have to be based on establishing negligence. What assessment have the Government made of this change, which was rejected by noble Lords in a vote just yesterday? What is the assessment of its impact on compensation recoveries generally and as a source of funding for the 1979 Act and 2008 Act schemes?

Notwithstanding those questions, these are two important schemes that bring some relief to the thousands of people who are afflicted by these terrible diseases, and we will maintain the consensus and support the regulations.

Localism Bill

Debate between Lord McKenzie of Luton and Lord Avebury

Tuesday 19th July 2011 Lords Chamber

[Lord McKenzie of Luton]

My Lords, Amendment 153D concerns retrospective planning permissions. It says that, where there is a breach of planning control, the planning authority must issue a notice,

“requiring the owner of the land in, on, over or under which the development has been carried out to make an application to them for planning permission for the development … describing the development in a way that is sufficient to identify it; and … specifying a date by which the application is to be made”.

While the purpose of the clause is, at face value, good, it is suggested that it will not significantly shorten the timescale for inappropriate unauthorised development to be removed. Although the clause seeks to prevent developers running a ground (a) appeal and a retrospective planning application at the same time, it should be borne in mind that, in the event that a retrospective application is submitted closely followed by an enforcement notice, a right of appeal against the refusal of planning permission will still exist. If the intention is to retain this right of appeal, then any appeal, including the appellant’s statement, should be submitted within 28 days of the date of refusal. The appeal should then be automatically converted to a ground (a) enforcement appeal so that in essence only one appeal is running.

However, Clause 108 still fails to deal with developers who carry out unauthorised development and who refuse to submit a retrospective planning application to regularise such development. Where the development is inappropriate, it can be dealt with by a notice. However, where it would not be expedient to take formal action, there is no sanction. This causes problems, especially where neighbours have done the right thing and applied for permission while they see a developer cocking a snook at the system and getting away with it.

The planning system should be an open and transparent method of regulating development. Many of the people who decide to circumvent the system avoid the public consultation process, and that must be contrary to the aims of localism. In addition, it puts an onus on the local authority to investigate and evaluate the proposal at the authority’s expense when the developer is making a gain. As one planning enforcement officer affirmed, it is important that the public have confidence that the system does not allow rogue developers to continue to take advantage. We suggest that any developer who has carried out unauthorised development should be compelled to submit a retrospective planning application, with a suitable sanction by way of a fixed penalty notice for double the appropriate fee if they fail to do so, and this amendment should be incorporated into the Localism Bill.

I am advised by the RTPI that the amendment is based on Section 33A of the Town and Country Planning (Scotland) Act 1997, as amended by the Planning etc. (Scotland) Act 2006. I beg to move.

[Lord Avebury]

My Lords, I shall speak to Amendment 154, which is grouped with Amendment 153D.

Clause 108 inserts a new Section 70C into the Town and Country Planning Act 1990 and gives the local planning authority the power to decline to determine a planning application if the grant of permission would involve granting, whether in relation to the whole or any part of the land to which an enforcement notice relates, permission in respect of the whole or any part of the matters specified in the enforcement notice as constituting a breach of planning control.

We had a brief discussion, interrupted by a Division, with the Minister and her advisers on new Section 70C a couple of weeks ago, and I hope that in the light of that discussion, the Minister will have had second thoughts about the consequences that it might have.

I should like to make two preliminary observations. The vast majority of retrospective planning applications are not made by Gypsies and Travellers, but power conferred on local authorities by Clause 108 is discretionary. In the discussion that we had, it was clear that we all envisage that it will be used predominantly to put a stop to appeals by members of those communities against refusal of their planning applications for unauthorised developments.

The Secretary of State said on 29 August last year, referring to the CLG's announcement of that date, that he was looking at ways to strengthen the powers available to councils to more effectively tackle unauthorised development and that these developments have caused tensions between Travellers and the settled population. The announcement was not about unauthorised development in general. Yet I think it was also agreed at our meeting a couple of weeks ago that it would have been unlawful for the Government to have designed this clause with Gypsies and Travellers as a target, as Mr Pickles made clear they did. I would be grateful for the Minister's comments on this difficulty that I have with the clause.

The proposal in new Section 70C of the TCPA 1990, to which this amendment relates, when taken together with the amendment to Section 174 of the Act relating to appeals against enforcement notices, goes far beyond the stated intention of preventing delays caused by the running of concurrent or consecutive appeals. If these provisions become law, a local planning authority would be able to use the new power in Section 174(2)(a) to issue an enforcement notice within the period specified in Section 78(2), which I understand is eight weeks, after receiving a planning application for retrospective permission for a Gypsy site, and then use the power in new Section 70C to refuse to determine the application. The applicant would then be estopped from appealing against the enforcement notice, given the wording of Section 174(2)(a), and would have no ability to argue that the planning merits justified the grant of planning permission for the development. Instead of there being no second appeal on the merits, there would be no appeal at all. The applicant could go for judicial review of the decision not to determine the application, but the local planning authority would almost certainly defeat any such challenge by relying on the legislation.

It may be that local planning authorities will decide not to use their powers or will fail to do so within eight weeks, but experience suggests that enforcement powers will be used enthusiastically by local planning authorities in Gypsy and Traveller cases. It is possible that where no enforcement action has been taken before a site is developed, Travellers could decide not to make a retrospective planning application but instead simply wait until an enforcement notice is issued and then appeal against the notice. The amendments to the 1990 Act in this clause will not debar a ground (a) appeal in such circumstances. However, local planning authorities often do not bother to issue enforcement notices; instead, they simply apply for an injunction under Section 187B of the 1990 Act against unauthorised developments.

In most cases, the target family's best way of defending such a claim has been to show that they have sought planning permission and that their application has a realistic chance of success, but given the provisions of Clause 108, such a course may not be open to them. The only recourse would be to argue that the authority should serve an enforcement notice before seeking an injunction, giving them the opportunity to appeal and have their case determined on the merits. However, the chances are that such an argument would be unsuccessful and if the court accepted it, the ensuing delay would be contrary to the Government's aim of stopping retrospective applications whatever their planning merits.

So, this amendment provides that the enforcement notice must not only have been issued but also have taken effect. Clause 108 could not then be used by planning authorities to issue an enforcement notice after an application for planning permission has been made, thus preventing any appeal on the merits of the development being heard. Secondly, it would prevent appeals only for three years after an enforcement notice took effect, so that land would not be permanently sterilised, and changed circumstances would be arguable at a planning appeal brought more than three years after the enforcement notice was issued. We had a brief discussion in the meeting two weeks ago about this time limit and I would not be absolutely committed to it if the amendment is otherwise acceptable to the Government.

The reason why Gypsies and Travellers have resorted to lodging retrospective planning applications is that there is no land in the whole of the country designated for their use by local planning authorities. This is in stark contrast to the Government's intention, in the national planning policy framework to be published later this month, for a housing bonanza for developers in the green belt, according to Ben Webster, the environment editor of the Times, who has seen a leaked copy of the document. With 20 per cent of those who live in caravans being statutorily homeless, they have had no option but to buy a piece of land that they can develop as a site and then apply for planning permission. The consensus among academics and lawyers who know about these matters is that something like 75 per cent of successful appeals are for retrospective applications. Taking the statistics from the work of Dr Jo Richardson, that would equate to around 100 a year.