HC Deb 01 March 1962 vol 654 cc1685-94

Motion made, and Question proposed, That this House do now adjourn.—[Mr. Finlay.]

10.50 p.m.

Mr. Frank Tomney (Hammersmith, North)

I shall not detain the House for long at this late hour. The case I wish to raise concerns a constituent of mine, but, on reading through the papers, I came to the conclusion that it was of general interest to practically all mothers and would-be mothers in the country. The correspondence with the Ministry, my constituent and the insurance officer concerned disclosed, not actual contradictions, but some loose association as between the facts. I came to the conclusion that if this was apparent in a particular case it could be apparent in others and that, in consequence, it would be as well for the case to be ventilated in the House of Commons.

I think it must be accepted that any Government must apply qualifying conditions for the benefits they dispense under the National Health Service. However, within those conditions, there will always be borderline cases which could be the subject of appeal to officers concerned, to tribunals or dealt with in the general legislation. Likewise, the application of electors to seek a hearing through representation in this Chamber is also unquestioned. My constituent felt so keenly about this matter that I decided to bring it to the House of Commons to discuss it even at this late hour.

The subject concerns the pregnancy of my constituent, Mrs. A. Carney, and the termination of that pregnancy, according to the best authorities I can consult, before the 28th week. This, according to the Ministry Regulations governing payment of maternity benefit, disqualified my constituent for reasons which I shall explain. I have consulted Black's Medical Dictionary on this case. I find that a normal pregnancy consists of 273 days. The shortest pregnancy known to that authority is 240 days and the longest period is 313 days. So there is a discrepancy of forty days, which is a record of the longest term for a known pregnancy. This led me to believe that the experts in dealing with the issue thought that forty days was possible in the period between conception to delivery. The question naturally arises: how can they determine the onset at the time of conception with any degree of accuracy? No doubt there have been countless cases in the courts of maintenance orders concerning women who themselves—this is not unknown—have observed their normal periods up to and including, in some cases, late pregnancy.

This case has not been easy for the insurance officer in making a determination. I can understand his difficulty. My constituent, who is a young wife, was in genuine difficulty because the evidence of her own doctor, Dr. Holmes, the resident hospital obstetrician at St. Charlotte's, and of the midwife who examined her, was contradictory in some respects.

Let us look at some of the evidence. Her own doctor, Dr. Carter, of Shepherd's Bush, certified that she had a miscarriage at thirty weeks on 3rd June, 1961—beyond the twenty-eight weeks which normally would have qualified her for maternity benefit. The resident obstetrician at Queen Charlotte's said in a letter of 18th July to her, I see that your pregnancy came to an end exactly twenty-eight weeks after the last menstrual period. Your last period was on 19th November, 1960, and delivery occurred on 3rd June, 1961. The foetus had died at approximately eighteen weeks of pregnancy, and at no time were foetal movements felt. I will come to that later, but the issue of twenty-eight weeks is the issue with which I am mostly concerned.

This was further confirmed by a sister in Queen Charlotte's, Sister Monica Tait, who certified that the date of the expected confinement was 29th August—at the end of the twenty-eight weeks. This evidence contradicts that in the submission by the insurance officer to the Commissioner. I refer to Regulation 7 (2) of the Maternity Benefit & Miscellaneous Provisions Regulations, 1954, and Section 16 (1,a) of the National Insurance Act, 1948, which reads, For the purpose of the provisions of this Act relating to maternity benefit— (a) the expression 'confinement' means labour resulting in the issue of a living child, or labour after twenty-eight weeks of pregnancy resulting in the issue of a child whether alive or dead, and the expression 'confined' shall be construed accordingly; The submission points out that in the claimant's case the labour did not result in the issue of a living child—and that is not contested.

The Joint Parliamentary Secretary to the Ministry of Pensions and National Insurance (Mrs. Margaret Thatcher)

I should like the hon. Member to make it clear which submission he is quoting. Is it the submission of the insurance officer at present before the Commissioner?

Mr. Tomney

Yes. There seems to be a discrepancy. The insurance officer's case as set out to the Commissioner is factual; it has been honestly set out, and I make no complaint about that. The complaint arises when we come to the way in which the evidence was assessed by the insurance officer. He apparently went to considerable pains to disprove my constituent's case. He contacted the doctor concerned, who thereupon changed his evidence and admitted that probably he had made a mistake and that he had not been correct in certifying the period as thirty weeks; it was twenty-eight weeks. This was confirmed by the hospital obstetrician, who said that the pregnancy occurred at twenty-eight weeks.

Sister Tart was also contacted—and I object to this—apparently in one instance by telephone by the insurance officer. The house governor and secretary replied on her behalf in a letter of 9th September to the manager of the Ministry of Pensions and National Insurance. The letter said: I think you will agree that this is precisely the information which Sister Tait gave you on the telephone. Other standard books of reference also confirm the duration of pregnancy as being 280 days from the onset of the last menstrual period. I think that we can object to information being gathered by telephone in cases of this character. Insurance officers Should be under a duty not to seek evidence other than in the form of written statements which can be verified. My constituent was in a genuine dilemma, in that she thought that she had a claim to benefit. She still thinks that she has.

What can be done, if anything, in a case of this character, because other borderline cases must occur from time to time? This case has been the subject of an appeal to a tribunal. From my knowledge of tribunals, there is no appeal to the Minister from the tribunal's decision. I can understand that. I think that it should be so. The final word in this case is with the tribunal. As no appeal is possible, what can be done? There must be countless women in these circumstances who incur expense by purchasing prams, cots, clothing, nursery furniture, etc., and who, to the best of my knowledge, are precluded from claiming sick benefit in the ordinary way, although there has been a termination of pregnancy other than by normal means.

What redress does a person who incurs all this expense have if the insurance officer or the tribunal decides that her claim according to the Act is not valid? There are other questions to which I could refer which would probably add more weight to this claim, but as they do not concern it directly I shall not refer to them. In this case there were discrepancies in the evidence of my constituent's own doctor, the resident obstetrician at Queen Charlotte's, and the midwife. The evidence of all these persons was subsequently changed and conformed to the case of the insurance officer who investigated. As a consequence, the appeal was unanimously dismissed by the tribunal.

I agree that these are difficult cases, but in such cases it would be better for all concerned—hospital authorities, medical men, and the patient—if a general instruction were issued to insurance officers to make more than a cursory examination of the situation as he knows it and determine exactly what happened. I know from dealing with constituents that one woman will tell another that she had a similar experience but was paid. Statements like this are very difficult to refute, and people think that they are not being dealt with justly under the Act.

It is absolutely necessary that people administering the Act, including members of the medical profession—because they, too, are engaged in administering the Act—should get the facts right, especially the facts on which an appeal to a tribunal can be based. Facts should be seen to be right from the outset. If as a result of tonight's debate the Ministry will ensure that this happens and will think again about these problems and the various regulations, the object of my raising this matter this evening will have been achieved.

11.5 p.m.

The Joint Parliamentary Secretary to the Ministry of Pensions and National Insurance (Mrs. Margaret Thatcher)

May I correct at the outset one or two misapprehensions of the hon. Member for Hammersmith, North (Mr. Tomney)? He said that the tribunal was the last appeal authority. That is not the case. I am very restricted tonight in the way in which I can help him, because the question whether Mrs. Carney is entitled to maternity allowance is at present the subject of an appeal from the tribunal to the Commissioner, who is the final appellate authority.

Mr. Tomney

I will accept that, but it is news to me—and, I think, news generally. I have always understood that the decisions of tribunals set up under Act of Parliament by a Minister were not subject to appeal to the Minister. If that is not the case—and we take the hon. Lady's word tonight—I can see endless difficulties arising in the future. I have been concerned a good deal with trade union negotiations at the Ministry of Labour, and that was my understanding of the matter.

Mrs. Thatcher

The hon. Gentleman has not raised this case in any way with my right hon. Friend or myself before tonight. Had he done so, we would have pointed out that the independent authorities appointed under the National Insurance Act to determine these claims consist, in the first instance, of the insurance officer. From him, there is an appeal to the local tribunal and from the local tribunal there is an appeal to the National Insurance Commissioner. The whole question of maternity allowance for Mrs. Carney is, therefore,sub judice.

The hon. Gentleman has the advantage of me in that he has seen the submission made by the insurance officer to the Commissioner. That is not accessible to me, because the claim has yet to be heard. I therefore do not know what is contained in the document from which he has quoted. It is, of course, available to the other party to the appeal—Mrs. Carney. He is also not right in saying that Mrs. Carney could not claim sickness benefit while her maternity allowance claim was being decided. She could claim sickness benefit, and the Department has, in fact, invited her to do so.

I think that the best thing I can do, as the claim is sub judice, is merely to recite in narrative form some of the dates and events recorded. In doing so, I can neither confirm nor deny the accuracy of what is Recorded, because of the claim being sub judice, as I could have explained to the hon. Gentleman had he approached us.

The first we heard of the matter was that Mrs. Carney claimed maternity allowance on 25th May, 1961, when she submitted the certificate to which the hon. Gentleman has referred, signed by a midwife, certifying that she might expect to be confined in the week including 29th August. That date, I should add, was later amended to 26th August. Her claim was in order. That is, it was made not more than 14 weeks before the expected week of confinement, and she satisfied the contribution conditions for the award of maternity allowance at the full standard rate of 57s. 6d. a week for the normal period of 18 weeks beginning 11 weeks before the expected week of confinement. Before an award could be made, however, Mrs. Carney notified the local office on 7th June that her child had been stillborn on 3rd June.

The hon. Gentleman has given the definition of confinement, and has pointed out that the issue in this case turns upon whether the pregnancy did, in fact, last for 28 weeks. He is quite right in saying that the insurance officer turned down the claim on the ground that the pregnancy was terminated otherwise than by confinement before the beginning of the eleventh week, which was then 12th June, but which, on the revised date, would have been 5th June.

Mrs. Carney then appealed to the local tribunal, and the hon. Gentleman has pointed out that a good deal of conflicting evidence came before that tribunal. I must tell him that we are not responsible for the evidence given by doctors; we are responsible for setting up a system by which people are appointed to determine what the facts are. The hearing was on 20th July, in the first place, and Mr. Carney, who represented his wife, produced a letter from her doctor stating that she had had a miscarriage at 30 weeks on 3rd June, and a letter from Queen Charlotte's Maternity and Chelsea Hospitals stating that Mrs. Carney's pregnancy came to an end exactly 28 weeks after the onset of her last menstrual period, which was on 19th November, 1960. That date—19th November, 1960—has never as far as I know, been in dispute and it is one which is crucial in determining when the pregnancy began.

The tribunal adjourned its hearing for further information about relevant dates to be obtained from Mrs. Carney's doctor and the midwife who signed the original certificate. It was at the direction of the tribunal that the insurance officer got in touch with these people. He first consulted the senior medical officer at our regional office and, after he had done so, the Acton local office wrote to Mrs. Carney on 4th August asking her, as is usual in such circumstances, for her written consent to these approaches being made. She replied questioning the necessity for them, suggesting that we already had enough information. Not until 26th August did she give her consent.

The necessary inquiries were then made and Mrs. Carney's doctor replied on 1st September stating that Mrs. Carney's last period began on 19th November, 1960, that she was due to be confined on 26th August—the revised date to which I have already referred—and that he must have miscalculated in saying that her pregnancy terminated after 30 weeks. The house governor and secretary replied on 19th September, on behalf of the midwife at Queen Charlotte's, confirming the information given by the hospital in its previous letter, namely, that Mrs. Carney's pregnancy came to an end 28 weeks after the onset of her last menstrual period. I will read the actual findings of the tribunal from the record of the tribunal itself. It states: The tribunal are satisfied that, in general, pregnancy lasts for about 273 days from the end of the last menstrual period. They are also satisfied that it is customary to allow seven days for the duration of such a period. The claimant's last menstrual period prior to 3rd June, 1961 commenced on 19th November, 1960 and her pregnancy must, therefore, be deemed to have commenced on 26th November, 1960. I must again emphasise that I am only reciting what the tribunal found, not whether it is true or false. That point will now be in dispute before the Commissioner. The document continues: Accordingly, at the time of her miscarriage she had been pregnant for only 27 weeks and one day, including the day of the miscarriage. In these circumstances the claimant's pregnancy was not terminated by confinement as defined in section 16 (1) (a) of the National Insurance Act, 1946. Mrs. Carney appealed from that decision of the local tribunal to the Commissioner on 3rd November, and asked for an oral hearing, the grounds of her appeal being that her pregnancy had lasted for 28 weeks and that she had been absent from her work from 3rd June to 18th September.

Mrs. Carney's appeal was submitted to the National Insurance Commissioner on 8th January, 1962, and has not yet been decided. I understand that, on receiving a copy of the insurance officer's statement, Mrs. Carney wrote saying that she intended to submit further observations, but she has not yet done so.

I shall now leave the question of maternity allowance, because that is the stage we have reached and I am not in a position to comment on it, since it is the subject of an appeal. I shall, therefore, turn to the matter of sickness benefit. Because of the grounds of Mrs. Carney's appeal to the Commissioner, contending that she should be entitled to some benefit, the local office wrote to her on 3rd January inviting her to submit medical evidence and to claim sickness benefit. It is clear that she must have been incapable of work for some time after her miscarriage.

Mrs. Carney replied querying whether this might affect her appeal against the disallowance of her claim for maternity allowance. We assured her by letter, a copy of which I have, that it would not affect her claim. So far, she has not responded to this invitation. It is a pity that she has not done so, because we are, naturally, anxious to put before the insurance officer a claim for sickness benefit for the period in question.

It is clear that Mrs. Carney must have been incapable of work for some time after her miscarriage on 3rd June and we know—this is important—that she satisfies the contribution conditions for payment of sickness benefit during that period at the rate of 39s. a week, which is the standard rate for a married woman.

Mr. Tomney

Is there a penalty on the claim for 21 days?

Mrs. Thatcher

We are not sure, because that can only be decided when Mrs. Carney submits a claim. Above all, the insurance officer will need medical evidence of incapacity before he can decide whether, and for how long, sickness benefit is payable.

If she were awarded sickness benefit and the Commissioner decided her claim for maternity allowance in her favour, all that would happen would be that the amount which she had received for sickness benefit would be set off against the amount to which she had become entitled for maternity allowance, which, of course, would be a higher rate—57s. 6d. a week. We shall be grateful to the hon. Member if he will urge his constituent to submit medical evidence of incapacity for the relevant period, so that we can go ahead and get the claim adjudicated upon.

In reply to the more general point that the hon. Member has raised about the dividing line between the period when sickness benefit may be payable—as a general rule up to the beginning of the eleventh week before the expected week of confinement—and the period after that when maternity allowance is payable, this is in general agreement with the medical definitions of miscarriage and stillbirth, which, of course, are made by reference to the end of the twenty-eighth week of pregnancy. It is also consistent with Section 41 of the Births and Deaths Registration Act, 1953, which defines a stillborn child as a child which has issued forth from its mother after the twenty-eighth week of pregnancy and which did not at any time after being completely expelled from its mother breathe or show any other signs of life. Before that stage, it is a miscarriage. Therefore, the general dividing line, which, the hon. Member has admitted, there must be, is in line with general medical definitions and with other Acts.

There is no further assistance which I can give to the hon. Member tonight, but I ask him to assist us by persuading Mrs. Carney to submit the necessary medical evidence of incapacity.

Question put and agreed to.

Adjourned accordingly at eighteen minutes past Eleven o'clock.