Draft Pneumoconiosis etc. (Workers' Compensation) (Payment of Claims) (Amendment) Regulations 2022 Draft Mesothelioma Lump Sum Payments (Conditions and Amounts) (Amendment) Regulations 2022

Chris Stephens Excerpts

Wednesday 23rd February 2022 General Committees

[Chloe Smith]

It is a pleasure to serve under your chairmanship, Ms Huq. Congratulations on joining the Panel of Chairs.

Important improvements in health and safety have restricted the use of asbestos and provided a much safer environment for those handling it. However, the legacy of its widespread use is of course still with us, with people starting to suffer many years—normally, decades—after exposure, when they can develop serious and often fatal diseases, such as diffuse mesothelioma. That long latency period can make it difficult for those affected, or their families, to bring a successful claim for civil damages—for example, because their former employer may simply no longer exist. They can, however, still claim compensation, through two schemes that aim, where possible, to ensure that people with diseases prescribed in regulations receive compensation in their lifetime, without having to wait for the outcome of civil litigation, which can take a long time.

There is the Pneumoconiosis etc. (Workers’ Compensation) Act 1979 scheme, which provides a lump sum to people who have one of five dust-related respiratory diseases, including diffuse mesothelioma, and who cannot claim damages from an employer because they have gone out of business. Rates are based on the level of the disablement assessment and the age of the person at diagnosis. There is also the 2008 mesothelioma lump sum payments scheme, established by the Child Maintenance and Other Payments Act 2008. That scheme was introduced to provide compensation to people with diffuse mesothelioma who could not claim compensation under the 1979 Act—for example, because they were self-employed or their asbestos exposure was not due to their work. Again, payments for mesothelioma are made at the 100% disablement rate and based on age, with the highest payments going to the youngest people with the disease. Under each scheme, a claim can be made by a dependant if the person with the disease has passed away. Overall, 2,670 awards were made across both schemes in 2020-21, with the awards totalling £42.4 million.

[Chris Stephens (Glasgow South West) (SNP)]

The Minister mentioned dependants. Consistently, both Opposition parties have raised the issue of the big disparities in compensation payments between sufferers and dependants, and we got a commitment from the Minister’s predecessor last year that the Government would look at that issue and look at providing an equality impact assessment on these benefits. Can this Minister please update us on that and what progress has been made to address the disparities between sufferers and dependants?

[Chloe Smith]

I can provide a very brief update. In the context of these regulations, that matter is not included, so it is not directly a matter for the Committee, but I am very much aware of the argument about equalisation. I am equally aware of the commitments that my predecessor gave, so with the Committee’s leave I will write to the hon. Gentleman to give him a little more detail, which goes beyond the scope of the regulations that we have here today.

The regulations increase the value of the lump sum awards payable under both schemes, which stand apart from the main social security benefits uprating procedure. Although there is no statutory requirement to increase the rates of these compensation schemes, I am maintaining the approach taken by my predecessors and increasing lump sum awards by the consumer prices index— 3.1%, as of September 2021. That is in line with the rate increase to the industrial injuries disablement benefit and the other disability benefits made as part of the main benefit operating provisions. The new levels will be paid to those who meet all the conditions for entitlement for the first time on or after 1 April this year.

I want to briefly mention further rule changes that we will make to support the end of life—sometimes known as the special rules for terminal illness. The Department certainly recognises the challenges that an individual, their friends and family face when they receive a terminal diagnosis. Supporting people in that difficult situation is, of course, crucial: that is why we have special rules for the end of life—to ensure that financial support can be provided as quickly as possible. These rules provide simple and fast access to benefits.

In July last year, we announced the intention to replace the current six-month rule for determining who could claim under those special rules with a 12-month end of life approach. That eligibility would then be consistent with current NHS end of life practice. Shortly, the Department plans to amend legislation to implement that change across five benefits, beginning with universal credit, alongside employment and support allowance. That will be followed, as soon as parliamentary time allows, by changes to the attendance allowance, the disability living allowance and the personal independence payment.

I will now touch on other support provided by the NHS for people with respiratory disease. As well as ensuring that financial compensation for the schemes is available, the Government are also focusing on and investing in support, protection, diagnosis, treatment and research. We also entirely acknowledge that the last two years have been a particularly challenging and worrying time for people with chronic respiratory conditions, which is why we prioritised people with such conditions and other vulnerable groups for the initial covid vaccination and booster programmes. We will offer a further fourth jab in the spring. It is also why the Department for Work and Pensions put in place temporary measures to protect the most vulnerable, including the suspension of face-to-face assessments at the start of the pandemic.

To qualify for an award under the 1979 scheme, people must have an entitlement to industrial injuries disablement benefit. We have continued these claims for people with diffuse mesothelioma and other illnesses as they can be assessed by paper. Other respiratory disease claims that could not be assessed by paper—those requiring lung function tests, for example—have now resumed, with extra safety measures in place.

We have introduced one-off special payments so that nobody loses out financially if their age goes up while waiting for an assessment, which would otherwise prevent them from getting the correct rate. It is important to be clear that all eligible awards for IIDB will be backdated to the date of claim. Of course, those awaiting IIDB assessment are still able to apply for other benefits if they find themselves in financial hardship or have care or mobility needs.

Looking to wider lung health, the NHS is also doing much to support the clinical priority of respiratory disease—within the cancer service recovery plan, for example. We expect the number of people diagnosed with mesothelioma to begin to fall in the coming years, but sadly many people will still develop it or other debilitating respiratory diseases. That is why we are working with the NHS to improve those people’s lives and why we recognise the continued importance of the financial compensation offered by the two schemes that we are discussing today. I commend the increase in the payment schemes to the Committee.

[Justin Madders (Ellesmere Port and Neston) (Lab)]

I believe that this is the first time I have appeared before you in the Chair, Dr Huq, so I will do my best to make sure that it is a memorable occasion for us both.

I thank the Minister for introducing the regulations. As she set out, the mesothelioma regulations amend the Child Maintenance and Other Payments Act 2008 and the pneumoconiosis regulations amend the Pneumoconiosis etc. (Workers’ Compensation) Act 1979. As we heard, both Acts make provision for lump compensation payments to be made to people suffering from specific dust-related diseases or their dependants, provided that they meet the conditions of entitlement. I note that as of 1.30 pm today both statutory instruments had still not been assigned numbers and the explanatory memorandums appeared in draft form on the Government website. I hope that that can be addressed.

As we have heard, today’s regulations uprate the amount of compensation paid to disease sufferers or their dependants by 3.1%. I note that the Government have reviewed the rates to maintain their value in line with inflation, as measured by the September 2021 consumer prices index, and in line with disability benefits. Although we recognise that the Government are under no obligation to do any uprating under either Act, we believe that it is vital to continue to support people affected by these awful diseases and their families and that annual uprating is necessary. Having said that, it is worth noting that, as my right hon. Friend the Member for Leicester South (Jonathan Ashworth) has already stated, uprating in line with inflation last September does not really reflect the true position that we are now in, given that inflation is likely to be around 6% for much of the course of the year according to the Bank of England. The uprating therefore reflects a real-terms cut.

The cost of living crisis has been debated in this place many times already this year and will no doubt be discussed again. As the regulations are not amendable, we cannot substitute the figure of 3.1% for something more akin to reality, but I believe it shows how once again the Government have struggled to recognise the very real financial pressures people face.

As we have heard this afternoon, mesothelioma is an invasive type of cancer caused by prior exposure to asbestos and for which there is currently no cure. It grows in the pleural membrane that lines the outside of the lung and the inside of the chest. Less commonly, it can also affect a similar lining around the abdomen or heart. It can take a long time to develop, as we have heard, with the first symptoms sometimes appearing 30 to 40 years after exposure. Patients experience complex debilitating symptoms and often have a short life expectancy. Of course, that presents real difficulties for those who develop the disease in being able to pursue a legal remedy.

The Health and Safety Executive reports that the UK has the highest rate of mesothelioma in the world and mortality rates have more than quadrupled in the past 30 years, with the disease being more common in certain parts of the country, reflecting the location of industries such as shipbuilding where asbestos was frequently used. Sadly, it is estimated that about 2,500 people die of the disease every year. Over the next 30 years, some 60,000 people will die of mesothelioma in the UK unless new treatments are found.

Pneumoconiosis refers to a group of lung diseases caused by inhaling dust. Common types include asbestosis; coal workers’ pneumoconiosis, caused by breathing in coal mine dust; and silicosis, caused by breathing in respirable silica and typically affecting industries such as quarrying, foundries and potteries. As with mesothelioma, there is a long delay between exposure and the onset of the disease. The Health and Safety Executive estimates that overall 12,000 deaths each year are linked to occupational lung disease.

I pay tribute to organisations such as Mesothelioma UK, the British Lung Foundation and Macmillan Cancer Support, which raise awareness and provide ongoing support for individuals and their families who are affected by these terrible diseases.

We know that before the dangers of asbestos were known it was frequently used for insulation, roofing and flooring in commercial buildings and homes. Indeed, it has been used in this very building and I recall my grandfather telling me how they used to use it as a snowball when he was at work. It was clearly very commonly used and we are still reaping the consequences today, but it was not banned until the Asbestos (Prohibitions) (Amendment) Regulations 1999. That means that buildings constructed up until the turn of the century might still have asbestos in them. Many colleagues will be aware that unfortunately those who worked in industries such as building and construction from the 1970s to the 1990s may still experience the consequences of exposure to asbestos, but those consequences are not limited to people who worked in those industries. For example, the National Education Union found that at least 319 teachers have died from mesothelioma since 1980, 205 of whom died after 2001. That is a staggering statistic and highlights the pervasiveness of asbestos in many of our buildings.

As we have noted, the Government are not under any obligation to uprate the payments, but it is clear that Members have asked on many occasions whether future increases could be made automatically rather than at the discretion of Parliament. One of the Minister’s predecessors agreed to consider that proposal, and I wonder the Minister can update us on that point. We have been told previously that automatic uprating would not be sensible because it would prevent debate, but when the yearly debate consists of very much the same issues being raised again and again, that argument appears a little artificial. Members are more than capable of raising issues in several ways through debates and in other forums. I hope that the Government will address the issue of automatic uprating, because it would not reduce Members’ ability to raise specific issues. It would also send a powerful message that, while no amount of money will compensate for the suffering and loss caused by the diseases, the Government are committed as a matter of course to ensuring that support is provided to those entitled to it.

It would also provide security to those affected if they knew that the uprating would apply each year without fail. That is especially important when those in receipt of payments may already have experienced a long and stressful wait for their assessment and gone through what can sometimes be a challenging and distressing assessment process. Members will be aware from experiences with their constituents that the process is not necessarily adapted to individuals’ needs, and the one size fits all approach can sometimes ignore irrefutable medical evidence. The Minister has set out some of the changes that have been made, but security for individuals from having their payments automatically uprated would be an important step forward, and the least that they deserve.

The hon. Member for Glasgow South West raised the issue of equalisation of lump sum payments to victims’ dependants. According to the Asbestos Victims Support Group Forum, figures from 2019-20 showed that a 77-year-old with mesothelioma would receive £14,334 if they claimed themselves, but if they died before claiming —as we know can happen with such aggressive and difficult to diagnose cancers—their surviving partner or dependant would receive just £7,949, which is just over half. That issue has been raised by Members year after year in these debates.

[Chris Stephens]

I thank the hon. Gentleman, who is my good friend, for raising this important issue. I remind the Committee that the Government committed in 2010 to look at the disparity and to equalise the situation. Twelve years is too long and we need action now.

[Justin Madders]

I thank the hon. Gentleman for his intervention, which highlights the point that we have these debates every year and the same issues continue to be raised. The Government are sympathetic, as indicated by previous commitments, but action is missing. The Minister has said that she will write to the hon. Gentleman after the debate, and I hope that she will share that correspondence with the rest of the Committee, because this is an important issue that needs addressing. It will not go away; we will continue to raise it on an annual basis.

When the Minister responds to this debate, will she comment on a response given to a written question tabled by my hon. Friend the Member for Manchester, Gorton (Afzal Khan) on this matter? He was told:

“It is right that available funding is prioritised where it is needed most, that is to people living with these diseases.”

Will the Minister explain whether she agrees with that assessment; when she will be able to give us a timetable for when any change in the Government’s position on the matter can be expected; and what recent estimates have been made of the cost of providing equal payments to sufferers and their dependants? I feel that that may well be what is behind the inertia on the Government Benches. Furthermore, given that the difference in payments often affects women whose husbands were directly exposed to asbestos, will the Minister tell us whether there has been any equality impact assessments in respect of the lack of parity in payments?

I conclude by urging the Minister to reflect on the issues that hon. Members have raised and to address them, so that we do not have to come back next year and debate them all over again.

[Chris Stephens]

It is a pleasure to see you in the Chair, Dr Huq—it is good to see a good friend of the worker chairing the Committee on these particular regulations.

I have become an annual attender of the proceedings on the regulations, and I will start today, as I always do, by remembering my good Unison comrade and friend Tom Begley, who died as a result of asbestos-related cancer. This is an opportunity to remember him and others who have succumbed to these pernicious industrial diseases. I also pay tribute to the campaigners, trade unions and charities, such as Clydeside Action on Asbestos, that continue to highlight the devastating impact that these industrial diseases have on victims and on families. This is not just about workers who have worked in factories and buildings; it is also about individuals who have contracted these diseases as a result of washing clothes with asbestos on them. We have to remember that as well.

I want to take this opportunity to remind the Committee that it was SNP and Plaid Cymru MPs in the 1970s who were the first Members of Parliament to highlight the dangers of asbestos and industrial diseases. Those Members were dismissed at the time and accused of scaremongering, but thankfully we have come a long way in recognising the dangers of asbestos and the impact that it has on people’s health.

I want to make three main points, but I first want to stress the issue of the disparity. The Government made a commitment in 2010 that they would look at the disparity between payments for dependants and sufferers. That was 12 years ago. I think we have waited far too long for that disparity to be addressed. There really should be an equality impact assessment along with these regulations, so that we can have a look at that.

Some of the figures for the differences in payments were given by my colleague on the Labour Front Bench, the hon. Member for Ellesmere Port and Neston. The one that I have been given is that someone who was a qualifying individual and aged 60 at the time of diagnosis would receive in the region of £44,000, whereas the dependant would receive £19,000. That is quite a big gap, I would argue, between the amounts of compensation for those individuals. I hope that the Government really do look at the issue very seriously. They are on borrowed time now; 12 years is far too long to wait. The Government gave us a commitment that they would look at the disparity.

[Hywel Williams (Arfon) (PC)]

Just to emphasise that point, the sum of the compensation declines as the claimant gets older. That is because it is based on potential earnings should the person not have acquired the industrial disease. There is a fundamental injustice here. Someone who is 61 gets less than someone who is 60, when the condition is entirely the same and probably as dangerous.

[Chris Stephens]

I agree with my hon. Friend. He makes a valid point, and I hope that it has registered with the Government. It is important. I do not want to oppose the regulations today, but I hope the Minister has listened very carefully to the points that have been made about the disparity.

The Minister appeared before us at the Work and Pensions Committee to talk about the work of the Health and Safety Executive. Perhaps the Minister could provide an update on what work the Government are doing with HSE to make sure that all workplaces in the UK are asbestos-free. She knows that we have heard from campaigners and international experts.

I praise hon. Members across the House who have raised the issues of industrial diseases. I thank the Minister. Tonight I have to go and visit the Boundary Commission because of legislation that she put forward, I think last year. In all seriousness, we do not want to oppose these measures, but there is still a lot that the Government have to get right here and there are still injustices to be tackled.