HC Deb 14 June 1972 vol 838 cc1657-66

11.1 p.m.

Mr. Michael Meacher (Oldham, West)

If an impartial observer were to examine our present system for compensating disablement, I think he would find it very difficult to avoid the conclusion that the regulations still grossly over-emphasise the prerogatives of property against the rights of human beings for proper protection and recompense. What adds poignancy to this charge is the fact that this year the Industrial Injuries Fund, which is far and away the biggest source of disability awards, has a surplus of more than £360 million and is growing annually at a rate of about £10 million.

It is well recognised that the present criterion for the award of disability payment is not so much need as the fulfil- ment of certain technical conditions of eligibility, and disability pensions are, of course, limited to conditions caused by way of industrial injury. Hence the con-genitally handicapped, the disabled housewife—most dramatically, terminal cases of cancer at home—and those injured by accident outside their place of work are at present excluded, and the attendance allowance as yet scarcely does much to alter the situation. Even the flat-rate invalidity pension is dependent on the payment of 156 weekly National Insurance contributions by an employed or self-employed person.

But it is not these omissions so much as the parsimonious interpretation of existing benefit regulations to which I want to draw attention. First leaving aside the war pension, proof of industrial causation is rigidly required for the payment of a disablement pension. Disablement that could well be, but cannot be indisputably proved to be, the consequence of a particular accident or disease is frequently not accepted as qualifying for a pension or a cash gratuity.

I quote here only two examples. The first, which comes from my constituency, concerns a miner who worked in the mines for 31 years and developed a condition known as nystagmus, that is, an involuntary twitching of the eyelids, due to working in poor light for a long time. It is accepted as prescribed disease 35. His general practitioner and a consultant ophthalmic surgeon both testified to his having a disability and confirmed that in their opinion it could not have been contracted other than through working in that employment. The medical board and the medical appeal tribunal accepted that he had nystagmus but refused to conceded that it was necessarily of the type associated with that past employment.

Perhaps an even better example of the rigidity and intransigence of the relevant boards in implementing the regulations was quoted yesterday by my hon. Friend the Member for Eccles (Mr. Carter-Jones) at column 1243 of the Official Report. He instanced a man who came to be afflicted with pneumoconiosis and the Pneumoconiosis Panel rejected his application. After he died an autopsy was carried out. The man was revealed to have been suffering from chronic bronchitis, emphysema and pneumoconiosis. It is not material to my case, though an interesting sidelight, that even at that stage the Pneumoconiosis Panel still refused to accept the plain revelation of the pathologist's report.

The second stringency in recompensing disablement concerns those conditions arising from industrial processes rather than those caused by an accident. They qualify for a pension only if they fall within the list of 45 prescribed industrial diseases. These are accepted only where they can be attributed to an employment, according to Section 56 of the Industrial Injuries and Diseases Act, 1965, "with reasonable certainty", The almost perverse legalism lying behind that phrase and the almost positive aversion which it implies to meeting need per se is well revealed by the Minister's comment yesterday at column 1243, where he said: we have to be careful that we do not prescribe something which does not fall within the terms of the Industrial Injuries Act."—[Official Report, 13th June, 1972; Vol. 838, c. 1243.] What a mistake that would be. The effect of this attitude is illustrated by the recently reported case of the contraction of chronic bronchitis and emphysema by electric arc welders. Though the General and Municipal Workers' Union claims that 40 per cent, of workers in this occupation suffer from this disease, the Department prevents their gaining any compensation. It regards this condition as not confined to this occupation. I refer to the Official Report, 23rd May, 1972; Vol. 837, c. 331. This is despite the fact that in the test case put by the union, that of the 49-year-old non-smoking skilled electric arc welder named Sidney Cartwright, the judge ruled that his condition, which included siderosis from the iron particles in his lung, was in all probability due to the inhalation of nitrous gas before overhead exhausts were installed. I ask the Minister whether he can honestly say that he believes that in this case, and so many others like it, the spirit of the original 1948 legislation is being carried out. I do not believe he could say that.

It is not enough for the Minister to say that ill-health caused by industrial process is covered by the prescribed diseases legislation. It is not.

Let me quote just one more example of a worker disabled by process effects who cannot get compensation. A 69-year-old man, now partially deaf and suffering from nervous debility, worked for two years in a cartridge factory where he had to endure the noise of hand-stamping of cartridges and the dropping of heavy crates. The National Insurance Commissioner—the case went that far—explicitly ruled in his case that even if he conclusively proved that his condition was due to the noise at his work, his claim would not be successful because he was injured by a repeated process, not by an accident at a particular time.

A third source of injustice in allocating disability awards arises when other conditions become superimposed over time and are treated as the operative factors to the neglect of the underlying causes.

I should like to cite another recently reported case where a man was struck by a falling steel barrel and obtained injury benefit for six months. During that time, because of the strain and anxiety of losing his job and fighting his employer for compensation—in vain, in fact—he had two heart attacks and contracted diabetes. The board ruled that his inability to work was due to these later conditions which were entirely unconnected with the accident. For this reason, disablement benefit was not granted.

More punitively still, it seems that such strictures are not infrequently exerted against the survivor. Death benefit, which involves a pension of up to £6.55 a week for widows, can often not be claimed because death cannot unequivocally be attributed to industrial injury or disease. Even the death of a 100 per cent. pneumoconiosis victim is frequently attributed to chronic bronchitis, brain haemorrhage or a heart condition, any of which may have arisen from breathing difficulties, a coughing fit, or something of that kind.

In the face of this meanness, masquerading behind legalisms and technicalities, I believe the overriding requirement clearly is that disability awards should be made according to need, not according to the time, place or circumstances of the cause. This would then automatically enable not only injured housewives and those handicapped at birth but those disabled through industrial processes to be eligible for benefit.

The desirability of this broad line of policy is, I am sure, widely recognised and accepted. But, short of these overriding changes, I believe several amendments can and should be made to the present system, and I should like to specify them.

First, much more generous disability pensions should be granted. From October this year the top 100 per cent. rate will be only £11.20 a week on a scale reducing to a mere £2.24 a week for 20 per cent. disablement. Such levels of recompense are surely unforgivably niggardly in a year in which the Industrial Injuries Fund has a surplus of £363,500,000 and is growing steadily at the rate of £6 million to £11 million a year. Yet still many workers die of occupational diseases virtually uncompensated. I quote again a case in my local paper of a man from Mossley, Lancashire, who had been a textile worker for 40 years and recently died from spinner's cancer when in receipt of a pension of 83p per week.

Secondly, more legal and financial assistance should be given to disabled persons for making claims and obtaining specialist representation. Independent medical consultation should be available to claimants on the extent and origin of their incapacity, and legal aid should, of course, be available before tribunals.

Thirdly, there are strong arguments in favour of allowing persons who settle for lump sum compensation under the old Workmen's Compensation Act to be brought within the scope of the Industrial Injuries Acts if their condition has since worsened. The size of the surplus in the Fund makes that a not unreasonable request.

Fourthly, much stronger pressure should be brought to bear on employers to prevent industrial disablement in the first place. This is obviously crucial. For example, in the construction industry the Chief Inspector of Factories stated in his 1969 Report that out of 234 fatal accidents there were breaches of the law by employers in 134 cases and in only five cases breaches of the law by the vicitims. The Chief Inspector concluded that over 85 per cent. of all construction fatalities were preventable by reasonable practicable precautions. Yet the average size of fines for offences is only £39.

I am aware that the Robens Committee is due to report very shortly on the whole future of safety legislation. But that does not detract from asking now for much more realistic penalties.

Another company, Goodyear, to quote a recently reported example in the papers which had been prosecuted in 1971 for not having machinery, including a conveyor belt, securely fastened, was last month fined a mere £100 after an employee had been sucked into a conveyor and crushed to death.

Such negligence—I am not suggesting that it is true of this company—can apparently even be deliberate, according to the quoted remark of a Sheffield general manager: It is cheaper to kill a man a year than pay a safety officer. Besides, it keeps the men on their toes. A death in the works is worth more than all the propaganda you get from the experts. It is to counter such attitudes that I believe that mandatory fines of up to £50,000 should, if necessary, be imposed by the courts in cases of proven negligence.

Fifth, the factory inspectorate, which at the moment is less than 700 strong, should clearly be substantially expanded. At present they can make only one visit every three or four years, given the number of factories in the country, and they do not invariably visit a factory even after a fatal accident or a serious maiming through negligence.

What I am asking is both moderate and practicable. Since the anomalies and inequities of the present system offend against all human sentiment and cry out for reform, I hope that the Minister will be able to give a constructive reply

The Under-Secretary of State for Health and Social Security (Mr. Paul Dean)

I am grateful to the hon. Member for Oldham, West (Mr. Meacher) for having given me notice of a number of the fairly detailed points which he intended to raise. I will deal with as many as I can in the time available.

First, I do not at all agree with the hon. Gentleman's suggestion that the scheme is administered in a mean or parsimonious way. We can fairly say that we in this country have one of the most comprehensive systems of cover for industrial injuries. I do not mean that it cannot be improved—of course it can—but the hon. Member was a little unfair about both the level of benefit and the spirit in which it is administered. I pay particular tribute to the Industrial Injuries Advisory Council, from which we have had much valuable advice over the years.

The hon. Gentleman spent a great deal of time saying that the scheme could do much more because of the surplus of £350 million or so. But this simply is not the case. This is in no way out of proportion to the income and outgo of the scheme, which is about £120 million a year. The surplus was built up in the early years to meet the emergent costs of disablement benefit as the number of long-term awards has built up over the years. But for a number of years now any annual increase in the fund has been less than the income from 1p a side on the contribution, so that any reduction in contributions would have meant a deficit.

So this scheme, like the National Insurance Scheme, is on a pay-as-you-go basis and any improvements in the benefits, such as the uprating which is to take place in October, or any extension of the area covered would mean an increase in contributions. There is no "fat" in the fund from which more money could be paid out.

As the hon. Gentleman said, the conditions to be satisfied before benefit can be paid are set out precisely in the Act and the regulations. Where the injury is caused by accident, that accident must arise out of and in the course of insurable employment if it is to be accepted as an industrial accident. This is the well-tried and recognised condition establishing the relationship with employment, and in most accident cases it is simple and straightforward to apply.

An injury may, however, develop over a long period, or the incidents may be so numerous and so close together in time as to form a continuous process. There may be no incident or limited series of definite incidents which can be accepted as constituting an industrial accident. It may then be more difficult to establish a connection between a disability and a gradual process over time, and thence to accept attribution to employment. Therefore, special tests have been considered necessary which a condition due to process or disease must satisfy before it can be prescribed and attract benefit. The distinction between accident and process was considered and accepted as a valid one by the Beney Committee which reported in 1955.

The hon. Gentleman then said that the proof of industrial causation is too rigid. In fact, the whole scheme and the administration of the scheme leans over backwards to give the benefit of the doubt to the claimant. This is true of the Industrial Injuries Scheme as it is of other schemes, too. Where there is a balance of probabilities the intention of the scheme is that those probabilities should be decided in the favour of the claimant. For example, many unwitnessed accidents are accepted as industrial accidents, and much the same goes for the death benefit too. It is only necessary to show to the satisfaction of the determining authorities that on a balance of probabilities, and looking at the matter in a broad, commonsense way, death was materially accelerated by and, therefore, resulted from the injury.

The hon. Gentleman also made the point that the awards should be based on need. This is suggesting going back to something similar to the old workmen's compensation arrangements which existed before the war. I am a little surprised that the hon. Gentleman would appear to be suggesting that, because the present system, both national insurance and industrial injuries, is based on benefit as of right under the conditions laid down in the scheme. I should have thought that that is a more satisfactory way than the suggestion the hon. Gentleman has made. I think it is generally regarded as much more satisfactory than a system which would almost certainly involve a great deal of litigation, such as that which existed under the old workmen's compensation scheme before the industrial injuries arrangements were introduced.

Some of the figures show that the present arrangements lean over backwards to try to assist a claimant, and that the benefit as of right provisions within the terms of the scheme laid down work fairly well on the whole. Perhaps I may give the hon. Gentleman some figures which illustrate this fairly effectively.

In 1971, from nearly 300,000 disablement benefit examinations by medical boards—the initial adjudicating bodies—there were only 11,300 appeals on disablement questions to medical appeal tribunals. Of these appeals 37.7 per cent, were successful. In addition the Secretary of State referred 4,200 decisions of medical boards to medical appeal tribunals, because, for example, the assessment was thought to be too low or too high, and 31 per cent. of these references resulted in a favourable decision to the claimant. These figures do not indicate any substantial dissatisfaction with the awards.

I doubt whether changes are required in the provisions for legal assistance. The insurance officer, the legally qualified chairmen of tribunals, the commissioner and the Department all act impartially. For example, in many appeals to the commissioner on a point of law against the finding of a medical appeal tribunal the appellant will have found no point of law. However, it is the practice of the Department to ensure that any point of law that may assist the appellant is put forward and suggested for adoption by him. Therefore, I do not think that the changes the hon. Gentleman proposes are required.

The hon. Gentleman also mentioned cases under the old workmen's compensation arrangements. I will look carefully at his detailed suggestions. There are special schemes, paid from the Industrial Injuries Fund, providing additional benefit to those receiving payments of workmen's compensation and also giving cover to those suffering from slowly developing diseases whose disablment arose, after 1948, too late to claim under the Workmen's Compensation Acts.

The case of one further group of men injured after the Workmen's Compensa- tion Acts were in force is under examination in consultation with the Trades Union Congress. It comprises those, known as "latents", who have continuing title under the Acts but who are not receiving compensation currently because they cannot establish loss of earnings under workmen's compensation rules.

We have no proposals in mind to extend the payment of benefit to persons who received lump sums in full and final settlement of their claims under those Acts. The vast majority of these relate to minor incidents. The nature of the settlements and lapse of time mean that essential evidence and facts are not available, and such an extension would open to controversy a wide range of lump sum settlements of this nature other than those under the Workmen's Compensation Acts.

The hon. Gentleman referred finally to the Factory Inspectorate and the attitude of employers generally to accidents at work. As the hon. Gentleman said, a committee under Lord Robens is considering this matter. I think that in spite of his strictures the hon. Gentleman will accept that it would be unwise for the Government to formulate proposals until we receive the advice of this committee on safety and health at work which was appointed in May, 1970, and whose report is expected fairly soon. I assure the hon. Gentleman that when that report is received it will be considered in my Department and also in the Department of Employment, which is primarily concerned with the factory legislation.

The hon. Gentleman has raised many detailed points which I shall consider, but I hope he will feel that what I have been able to say in this brief debate has at any rate put some of the matters and some of his fairly harsh criticisms in perspective.

Question put and agreed to.

Adjourned accordingly at twenty-seven minutes past Eleven o'clock.