HC Deb 27 July 1978 vol 954 cc2010-20

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

1.55 a.m.

Mr. Neil Macfarlane (Sutton and Cheam)

I have sought leave to raise this subject because the question of my constituent, Mr. D. P. Merfield, raises many disquieting aspects of delay within the Department of Health and Social Security which, although to some extent they have been resolved in several ways during recent weeks, still continue. But I would say to the Minister that I recognise the complexity of the situation, and he may well wish to have more time to reply in detail, during the next few weeks, to the points that I raise tonight. I do not expect him to answer every point this evening, but I hope that he will be able to acknowledge these points before we get into the high part of the summer. I trust that there will be a speedy conclusion to the points that I have raised.

In November 1974 my constituent, Mr. D. P. Merfield, a dentist working in the National Health Service, was seriously injured by mercury poisoning while treating NHS patients. As a result of the injury, his kidneys were damaged and he has been under intensive therapy for high blood pressure and kidney disease ever since. Mr. Merfield, at the time of this injury, was 44 years of age. He has a young family.

In February 1975, Mr. Merfield made a claim for injury benefit but the DHSS wrote back and said that he was not eligible. This, as time has shown, was incorrect, but Mr. Merfield accepted it at the time.

In June 1975, Mr. Merfield was able to resume in practice in a very part-time capacity, but his health deteriorated and by 1976 he had to give up altogether. About two months later he had the first of two severe heart attacks, but at this time he was advised that he had the right to claim a benefit. He did so, he was again rejected, but he persevered by establishing the regulations with the DHSS. This process took about five months.

By now we had entered the early part of 1977. His perseverance was this time rewarded, with the DHSS agreeing to his having a medical examination, which took place in October 1977—a delay of about eight months since the DHSS agreed the regulations, and of about two and a half years since he first inquired.

Even though the medical panel upheld my constituent's claim, it was March 1978 before the DHSS finally admitted liability and agreed that he was, after 23 years of service in the NHS, entitled to 85 per cent. of remuneration for the period under review. Alas, somebody prevaricated at this stage and suggested that 85 per cent. was too high, and that he should accept 15 per cent.

At this time Mr. Merfield wrote to me, and I duly sent on his letter to the Under-Secretary of State on 24th March He replied to me on 21st April, which, alas, was almost a month later. Happily, as a result of my approach to the Minister, some action began, but given that Mr. Merfield's condition, and the medical report on the DHSS files that he could suffer a third and fatal heart attack at any time, any delay, in my opinion, would have been too much. At least an official at the Fleetwood superannuation office of the DHSS rang Mr. Merfield on 17th April and had the good grace to admit to my constituent that there had been considerable departmental laxity.

Within recent weeks my constituent has received some of the benefit to which he is entitled, but the saga is, alas, still continuing in another way. It appears to me, and to many of those who have looked at the case very closely, that there has been deliberate obstruction, because Mr. Merfield's superannuable remuneration was calculated at £10.654.60 by the office of the DHSS at Fleetwood, which asked the family practitioner unit in the Sutton, Merton and Wandsworth area health authority to pay. On this basis my constituent thought that the sum of money due to him would be £5,280—in other words, seven months of his incapacity based on £754½70 per month Astonishingly, the family practitioner unit at Zeta House in Putney wrote to my constituent suggesting that he would receive a cheque for ony £847, which is less than one-sixth of the proper amount In a lengthy telephone call, at his own expense, my constituent then queried this directly with the officer to whom he had spoken some weeks previously at Fleetwood. After several hours of conversation the officer agreed that he was entitled to the £5,280. Mr. Merfield naturally thought that his worries were over. But he was told soon after that the basis for the original calculation was incorrect, that a mistake had been made in the figure of £10,654.60, and that on the basis of the revised calculation the figure should be reduced to £7,957.20.

We have a new complication, which is not of my constituent's making. The Department of Health reduced the super annuable figure by virtue of Mr. Merfield deciding, in 1973, to buy added years for his pensionable service. The Department of Health is incorrect in considering that the superannuation contributions paid from Mr. Merfield's resources during his incapacity to comply with statutory regulations were income. To add to the atmosphere of confusion and obstruction, when Mr. Merfield decided to exercise his option to purchase added years of service the old South-West London and Surrey Executive told him in a letter that it did not have the information that he sought and that he ought to write to the superannuation division at Fleetwood.

This he duly did. Two months later the division replied, astonishingly, to the effect that he had left the National Health Service and had not returned. This of course was totally untrue and Mr. Merfield queried this in a telephone call and in a letter. He was reassured, two months later, that his records were in order. Alas, this, equally, was not correct. Problems arose. Perhaps there was even duplicity. I am not certain at this stage and I do not make any allegation. Only time can tell.

The Department of Health at Fleetwood was also wrong because all of Mr. Merfield's contributions had been incorrectly recorded in the name of a Miss C. L. Newbold. This was, perhaps, human error. But the Minister may now begin to see the dawning and perhaps his officials will understand all the ramifications of the problems that we have been discussing over the past three months. The fact is that there has been delay by the Department of Health and Social Security. Its poor record-keeping is responsible for hampering my constituent's request for a quotation between July and November 1974. In the event, he could not begin payments until June 1975, after he had partially recovered.

At this early hour I shall conclude as soon as I can. I hope that the Minister will respond to this latter aspect of the matter, on the basis of these complications. It is a very complicated subject. I will send him all the correspondence that I have had from my constituent. I must stress the need for speed. My constituent has had to take up many queries. He is a sick man. I have no need to tell the House the precise nature of mercury poisoning. It is a sad and serious acci- dent, and no doubt the Minister is aware of its details.

Mr. Merfield is anxious to have everything in order for his family. He recognises what faces him. At every turn be seems to have been the victim of obstruction and delay. Indeed, I venture to suggest that he may have been at some stage the victim of duplicity. I demand that on this occasion the Department responds immediately, not in a month's time. Mr. Merfield is an anxious man. I have no need to tell the House of the gravity of his condition.

I ask the Minister these questions. Why was Mr. Merfield told, three and a half to four years ago, that he was not eligible for benefit? Why was there a delay of five months in setting up a medical panel? Why was there a delay of six months after the medical panel had agreed his condition? Why has there been a switching of tactics, with the basis of calculations being altered and a reduction in the superannuable remuneration? Why have all these things occurred? I hope that the Minister can answer these points, in the immediate future if not tonight. Eventually I shall have no alternative but to request that the Ombudsman reviews this case. Now I seek urgent action. I hope that the Minister will respond accordingly to the serious situation facing my constituent and his family.

2.5 a.m.

The Under-Secretary of State for Health and Social Security (Mr. Eric Deakins)

The hon. Member for Sutton and Cheam (Mr. Macfarlane) has outlined clearly the case of his constituent, Mr. D. P. Merfield BDSc(Melb), LDS(Vic).

I think that it might help if, at the outset, I make two points clear. The first is that the claim for injury benefit which is the subject of this debate is one arising out of the National Health Service (Injury Benefits) Regulations 1974 and is not related in any way to the provisions of the National Insurance (Industrial Injuries) Acts.

These regulations provide for the payment of injury benefits to or in respect of any person engaged in the National Health Service in England and Wales whose earning ability is reduced or who dies as a result of an injury or disease contracted in the course of his duties.

The second point is that it has undoubtedly taken some time for this case to be resolved—to be precise, from May 1977 to July 1978—but I hope that when I have detailed its rather complicated history, relative to the legal requirements, the hon. Member will conclude that any delay that occurred was not unreasonable, having regard to the lengthy inquiries that were necessary for its resolution.

On 3rd May 1977 Mr. D. P. Merfield, who is a principal dental practitioner, claimed injury benefit under the National Health Service (Injury Benefits) regulations 1974 by letter to the Merton, Sutton and Wandsworth family practitioner committee, on whose list he was and still is. His claim was based on a deterioration in his health which occurred following an incident in his surgery in August 1974, when there was a spillage of mercury and he was affected by mercury poisoning.

The National Health Service (Injury Benefits) regulations to which I have referred contain a twofold provision for the payment of benefits. The first allows for the payment of benefits on a permanent basis if a person ceases to be employed and his earning ability is permanently reduced by more than 10 per cent. as a result of an injury or disease contracted in the course of National Health Service employment. The second allows for the payment of a temporary allowance to a person who, althought still employed, has suffered a reduction in pay when absent as a result of the injury or disease. The scheme also provides for the payment of certain benefits to widows and specified dependants of persons who may die as a result of such injury or disease.

Mr. Merfield is still on the dental list of a family practitioner committee, having made arrangements for his patients to be treated by two different dental partnerships which are acting as locums. He can qualify, therefore, only for the temporary injury allowance payable during any period when his remuneration was reduced through illness and it could be established that the illness was the result of mercury poisoning.

Early in November 1974 Mr. Merfield became ill as a result of the surgery incident in August. He claimed sickness benefit and national insurance injury benefit at his local social security office. He was awarded sickness benefit but was refused benefits under the National Insurance (Industrial Injuries) Acts because he was a self-employed person. This was not a claim for benefits under the National Health Service (Injury Benefits) regulations.

The arrangements for the administration of the Health Service superannuation scheme are made both locally, through the agencies of the various Health Service employing authorities, and centrally, by the Department's superannuation branch at Fleetwood. This arrangement has been well publicised. An easy-to-read guide on the National Health Service scheme contains information about the provisons for the payment of the injury benefits associated with the scheme, and this booklet had been made available to all its members at the time of the incident affecting Mr. Merfield in 1974. Indeed, he had been referred to the booklet in a letter sent to him by the superannuation branch on 6th September 1974 about his general pension position.

The Department's records indicate that the first intimation that Mr. Merfield wished to claim injury benefits under the occupational scheme was contained in a letter dated 3rd May 1977 to the Merton, Sutton and Wandsworth family practitioner committee. A formal claim was then completed and received in the Department on 10th May 1977. This was accompanied by correspondence that showed that Mr. Merfield had reported the incident to the family practitioner committee on 20th December 1977, when he gave the required notice for the alternative arrangements made for the treatment of patients. No suggestion was made at that time that he intended to claim injury benefits.

At the time that he did make his claim in 1977, inquiries made by the Department showed that the dental estimates board had continued to make payments to Mr. Merfield during the period of his incapacity at a level not less than he had formerly received. Accordingly, as it did not appear that there had been the reduction in earning capacity necessary to establish title to benefits, the family practitioner committee was advised that the claim could not be allowed.

There then followed further correspondence involving solicitors acting for the Medical Protection Society on behalf of Mr. Merfield, the family practitioner committee and the Department, as a result of which it was established that Mr. Merfield had made his own arrangements for the employment of a locum or locums during the relevant period. The Department accepted that in these circumstances there was a prima facie case for the award of a temporary injury allowance, but it still remained to be established by reference to medical opinion that the absence from the practice was directly related to the incident of mercury spillage. It would have been pointless to pursue the medical aspects involving examination, and so on, when, in the first instance, it appeared that the claim failed on the first count.

The Department, through its medical advisers, therefore arranged for Mr. Merfield to be examined by a consultant specialising in mercury poisoning. An examination took place on 19th October 1977, but there was undoubtedly some delay before the consultant reported her findings to the Department on 12th January 1978. After the physical examination, however, she had found it necessary to obtain further information from Mr. Merfield, which did not become available until the end of November.

However that may be, the consultant's report indicated that Mr. Merfield's state of health at the time of the examination was not attributable to mercury poisoning. From the terms of the report, however, it seemed to officials reasonable to conclude that his absence from his practice from 16th November 1974 to 13th June 1975 was so attributable and that entitlement to a temporary injury allowance was established. This decision was notified to Mr. Merfield on 28th February 1978.

In accordance with the provisions of the regulations, any such award would cover any period during which Mr. Merfield's remuneration may have fallen below 85 per cent. of his average remuneration after taking into account social security benefits. It had also now been agreed that it was reasonable to deduct the payments made to locums in establishing the loss.

Unfortunately, there then arose further difficulties in this necessarily protracted investigation of title, for it was by no means easy for my officials to establish the amount paid by Mr. Merfield to the two partnerships acting as locums and it was only after several communications and telephone calls to him that the correct position began to be established. This position affected the level of benefits.

A further difficulty arose when it transpired that at some time in February Mr. Merfield had been engaged in part-time work at his surgery, and as that again might affect the level of the award, yet more inquiries were necessary, in which the Department awaited statements from the locums before the question was established in Mr. Merfield's favour. Because of the successive nature of these difficulties, each affecting the level of benefits, payment was made by the area health authority on behalf of the family practitioner committee—three stages between 20th March 1978 and 18th July 1978.

I hope that what I have said so far has demonstrated that while there has been delay in reaching a final outcome to this rather complex case, there has been no neglect and that the time taken to establish title to benefits was necessary in relation to the circumstances. There has been considerable correspondence in the case, with letters, averaging about one a week over the year in question, being supplemented by frequent telephone calls between the various parties.

I am sorry that in the unfortunate circumstances of Mr. Merfield's present illness it has not been possible, based on the best medical advice available to the Department, to show a causal connection with the incident of mercury spillage.

Mr. Macfarlane

Is the Minister suggesting that there is a limitation, in a medical sense, on the general awareness of what mercury poisoning does which makes it difficult to analyse precisely the effect of such poisoning?

Mr. Deakins

I am not a medical man and I am guided, as are my officials, by advice from the consultant who is a specialist in mercury poisoning. We have not had proved a causal connection with the incident of mercury spillage. If, however, Mr. Merfield has any other medical evidence to the contrary, my medical advisers will happily consider this, and he has been advised to this effect.

Mr. Macfarlane

I believe that the lady surgeon is no longer resident in the United Kingdom but has emigrated.

Mr. Deakins

I am not sure that that necessarily makes her advice any more or less valid. It may be that she reached retirement age. I have no doubt that other specialists are available and I am sure that Mr. Merfield has access to them.

There is another aspect that is worth mentioning. It may assist Mr. Merfield, if not now, perhaps at some time in the future. As I have said, on present medical evidence he has not established title to benefits under the injury provisions because his condition is unrelated to the incident in 1974, which is subject to the point that I have already made. None the less, if his condition, however caused, can be said permanently to prevent him from carrying out his responsibilities as a dental practitioner to the family practitioner committee, he would, if he were obliged to come off the list because of that condition, have title to benefits in respect of early retirement on health grounds under the normal superannuation provisions of the Health Service scheme.

These provisions allow for retirement at any age where it can be established that a member is permanently incapable of following his employment. The incapacity need bear no relationship to the member's occupation, unlike a case falling to be dealt with under the injury benefit provisions. If Mr. Merfield were able to satisfy this medical condition of permanent incapacity, his pension would be built up to recognise the circumstances of his enforced early retirement, six and two-third years being added to his contributing service. In addition, he would be credited in full with the further six years which he is in process of purchasing by instalments, any outstanding balance then being waived. Mr. Merfield's actual service of approximately 20 years would thus be effectively increased to almost 33 years, on which basis a pension and lump sum would be calculated I have taken note of the other matters raised by the hon. Gentleman and I shall, of course, consider them seriously with my officials and write to him about them.

Question put and agreed to.

Adjourned accordingly at seventeen minutes past Two o'clock.