HC Deb 02 March 1981 vol 1000 cc105-12

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

10.13 pm
Mr. Roger Stott (Westhoughton)

I wish to raise a problem that has faced one of my constituents, Mr. Edward Penney of 18 Lancaster Avenue, Horwich, regarding his claim for disablement benefit.

Edward Penney first claimed disablement benefit in March 1976, on the ground that he had been suffering from a prescribed disease known as byssinosis since 1 December 1976. He had had to leave his job in the weaving and winding shed of a cotton mill because he was physically unable to carry on, and he had been advised by his chest specialist to stop working. He was 52 years old.

He was first examined by a pneumoconiosis medical board—PMB—in June 1976. His claim was rejected, and the report concluded that he was suffering from acute bronchitis and high blood pressure. Subsequent examinations by Mr. Penney's general practitioner and his chief specialist disagreed with that diagnosis. Mr. Penney then reapplied for disablement benefit following the advice of the chest specialist at Bolton, who considered that Mr. Penney was suffering from a condition that was a direct result of working with cotton dust.

The second time Mr. Penney was examined by the PMB, following his application in September, there was one doctor—according to my constituent, the other left after a few moments—and the entire examination lasted approximately 10 minutes. The conclusion was that Mr. Penney's condition was due to cigarette smoking. There was no mention of blood pressure. For this examination neither Mr. Penney's general practitioner nor his consultant chest specialist was consulted in any way, and there was no report of the examination. There was only a rejection of the claim.

At this stage Mr. Penney was informed by an official at the disablement benefit office that there was no right of appeal to an independent medical tribunal. Fortunately, Mr. Penney had better information, having seen a newspaper clipping announcing new measures whereby a claimant could appeal from January 1977 provided he had applied for disablement benefit and had been rejected four times over a two-year period.

Mr. Penney applied again. He was examined by the PMB in April 1977. His claim was again rejected and the PMB this time considered that he was suffering from"obstructive airways disease".

I was contacted by Mr. Penney at about this stage, and I intervened by writing to the DHSS, asking why neither details of Mr. Penney's medical background nor consultation with his general practitioner or specialist had been sought by the PMB. The response to this was that the hospital case notes and chest X-rays had been obtained, but the reason given why neither the chest specialist nor Mr. Penney's GP had been contacted was: It is the practice of these boards to obtain all the medical evidence which they think may help them in reaching their conclusions. It is entirely for them to decide what evidence they should obtain … These boards are independent statutory authorities and neither the Secretary of State nor any other Minister can comment on or intervene in their decisions". However, despite this reply, a subsequent letter from the DHSS stated: Although a right of appeal to the Medical Appeal Tribunal against the diagnosis decision of the Pneumoconiosis Medical Board exists only in certain limited circumstances, the claimant does not have such a right of appeal. However, in view of the letter dated 19th April 1977 from Roger Stott, MP and the letter dated 10th May 1977 from the claimant, the Secretary of State for Social Services has directed that the decision of the PMB of the 28th April 1977 should be referred to the Medical Appeal Tribunal". Before continuing with the subsequent sequence of events that finally led to Mr. Penney's successful claim in 1980, I should say that several points have already emerged.

The first is the range of conflicting medical opinion. There is also the fact that Mr. Penney, his general practitioner and his chest specialist, who had been looking after him for years, had never been personally consulted. One would expect, surely, that any medical board that had the power to determine whether an applicant could or could not receive financial support because of his disabilities should be fully informed of the applicant's medical history. In Mr. Penney's case, during the course of his second examination and subsequent examinations, two independent specialists regarded as experts were consulted. Both of these experts found that Mr. Penney's symptoms were a result of working in a cotton mill.

Dr. Flindt, a lecturer in occupational medicine at the university of Manchester said: in advanced cases it is virtually impossible to unscramble which symptoms and signs are due to byssinosis alone … Byssinosis is an unsatisfactory diagnosis, depending as it does primarily on the patient's history, but in his case it is my opinion that there are insufficient grounds for not giving him the benefit of any 'doubt'. A decision not to accept a patient as having byssinosis is of little importance when disability is minimal, but in his case it is substantial. The second expert opinion was sought from Dr. Mann at the Halifax infirmary. His opinion was: In my view Mr. Penney is suffering from byssinosis. This is an extremely difficult diagnosis to establish in that there are no pathagnomonic appearances on the chest X-ray, and one is entirely dependent on the patient's history and occupational exposure. If Mr. Penney's case were an exception, if by some peculiar quirk his byssinosis symptoms did not conform with the majority, perhaps one would let the matter rest, but this unfortunately is not the case, as is shown by the findings of the TUC.

The TUC has been examining the question of the determination of industrial disablement benefit on account of pneumoconiosis. Its conclusions are based on a large number of cases over a number of years and therefore cannot be accused of being biased or taking one exceptional case. The TUC says: The view has been expressed that both on the basis on which and the methods by which diagnosis decisions are made are far too restrictive, and the burdens of proof placed on the claimants are too great. It has been proposed that less weight be placed on radiographic evidence and that claims be determined on the basis of examination of a claimant's occupational history and actual disability, having regard to the balance of probabilities of his symptoms being associated with pneumoconiosis. Surely the fundamental point is that Mr. Penney suffers byssinosis as a result of working in the cotton industry for 29 years. Whether his symptoms do or do not exactly conform with strict and narrowly defined criteria of the disease byssinosis misses the humanitarian point.

The TUC also found: Examples have been cited where there are wide differences of opinion between the diagnosis of the PMB doctors and independent chest specialists consulted by the Union"— as was the case with Mr. Penney.

There is a strong case—here is the kernel of my argument—for demanding a reappraisal of the criteria and methods used for determining whether claimants suffer from these industrial lung diseases. Particularly, there should be a more comprehensive examination of the sufferer's medical history, as it seems that these diseases cause certain problems of classification, X-rays are not always reliable, and symptoms vary from patient to patient. It is interesting to note that there have been considerable problems in diagnosing these diseases even after a post mortem has taken place. Time does not permit me this evening to go into the evidence that I have to substantiate that claim. The"benefit of the doubt" decisions have to be made in these cases.

The PMB system should work for and not against the sufferers and their dependants. One wonders how many sufferers of byssinosis with less persistence than Mr. Penney have been unsuccessful in claiming their rights to disablement benefit when one sees that in 1979, of the 268 PMB examinations, some 75 were diagnosed as having an industrial disease.

My second major point is in connection with the lack of information that would seem to be available about the full complexities of the claim system, especially as regards appeals. Mr. Penney is a member of a small union which was able to finance the first specialist independent report but simply did not have the resources or the knowledge fully to pursue Mr. Penney's case.

Mr. Penney, following his first medical tribunal, went to see a solicitor whose name he had come across from a television programme. As far as he and I were concerned, following a letter from a Minister at the DHSS, he had absolutely no right of appeal on medical grounds. The solicitor took up his case and recommended another independent specialist report. Dr. Mann, of the Halifax infirmary, requested a further appeal, which was granted. Mr. Penny, through his persistence and hard work, obtained his first appeal, but how many other people in a similar position would have won through? The first appeal was granted, it would seem, because Mr. Penny went to his Member of Parliament. The second appeal was granted through a solicitor he found by chance through a television programme, after Mr. Penny and I, his Member of Parliament, had been informed that no such appeal was possible.

The slowness of the procedure was also deplorable. On receiving the letter in November 1978, which said that the appeal had been granted, Mr. Penny did not receive word to appear before the board until 22 March the following year. The appeal failed, but Mr. Penny did not receive official notification of the results until 18 May. That followed a letter from the solicitor and inquiries by Mr. Penny at the disablement benefit office. Mr. Penny's general practitioner, however, had, paradoxically, been informed of the results on 26 April. There seems no logic in a system that does not consult a claimant's general practitioner about his health but informs the general practitioner first, rather than the claimant, of the results of any decisions.

In August 1980, Mr. Penney received several years' back pay of benefits, when it was finally determined by the doctors on the pneumoconiosis medical board that he was suffering from byssinosis. The doctor at the time could not understand what the problem had been for the past four years. After four years, the man had gone through four medical examinations and two appeal procedures. He had the tenacity and personal courage to transcend the bureaucratic brick wall that had been placed in front of him.

This is one of the most disturbing cases that I have come across as a Member of Parliament. I hope that this debate will go some way towards redressing the balance in favour of those unfortunate people who suffer from this crippling industrial disease. They face an unprecedented and unmitigated response, both from the medical profession and from the DHSS. If this debate does nothing more it will have read into the record one man's personal suffering over five years and one man's personal triumph.

The Under-Secretary of State for Health and Social Security (Mrs. Lynda Chalker)

I am grateful to the hon. Member for Westhoughton (Mr. Stott) for the clear expression of his concern for the victims of occupational diseases in general and, particularly, for those disabled by byssinosis, the cotton workers' disease. It is a concern that is shared by both sides of the House. I also congratulate the hon. Gentleman on the way in which he has pursued his constituent's case over the last five years.

In the International Year of Disabled People it is most important that we should not forget those whose disabilities have been caused by their work, and that we should make every effort to ensure that they receive the special benefits designed for them. Therefore, we owe the hon. Gentleman a debt of gratitude. Perhaps I may set the hon. Gentleman's case in context by saying a few words about byssinosis itself—for it is a condition that is not generally well known—and also about the way in which claims for the disease are handled under the industrial injuries scheme.

Byssinosis is a respiratory disease that occurs in workers who have been exposed to the dust from cotton or flax. Cotton dust is its most common cause and the disease is most prevalent among those people employed in cotton chambers, blowing rooms and carding rooms though the final processes of cotton production—spinning and finishing—can also cause the condition.

The chronic cough of some flax and hemp workers was mentioned in a treatise on occupational medicine as long ago as 1700. Even so, knowledge of the causes and effects of the disease has built up only very gradually, and even now is far from being complete.

Cotton byssinosis was first recognised as a compensatable industrial disease in Great Britain in 1940. That, of course, was in the days of the Workmen's Compensation Act. The cover was continued under the industrial injuries scheme introduced in 1948 and it has since been extended to cover workers in flax, so industrial injuries benefits are now available to anyone who has been employed since July 1948 in, as the regulation puts it, any occupation in any room where any process up to and including the winding or beaming process is performed in factories in which the spinning or manipulation of raw or waste cotton or of flax is carried on". Byssinosis presents particular problems of diagnosis. Its onset is gradual and it is not characterised by any abnormality of the chest that can be shown up by X-rays. Diagnosis in the early stages depends entirely on the medical and occupational history. The hon. Gentleman's remarks showed that most clearly.

The first symptoms usually occur after several years in employment, when the sufferer complains of tightness in the chest on return to work on a Monday morning or following a holiday. By Tuesday, he usually feels normal and continues to do so for the rest of the week.

Fortunately, in many cases there may be no further progression, but in some the sufferer may notice, after some years, that the chest tightness persists till Tuesday or Wednesday. Finally, it lasts right through the week, although it is still usually worst on Mondays. Eventually the condition may become severe, with breathlessness on every day and a persistent cough and difficulty in breathing. While the early symptoms of byssinosis are reversible, permanent damage may occur with time, and the severe stage of the disease is indistinguishable from that of emphysema and chronic bronchitis.

Because of these difficulties of diagnosis, byssinosis claims under the industrial injuries scheme have always been dealt with by a special medical adjudication system. It is the same as that used to decide pneumoconiosis claims and claims for some other, less common, respiratory diseases. The reason is simply that ever since compensation was first provided for industrial lung diseases in 1919 it has been recognised that their diagnosis was best left to specially appointed doctors.

Under the industrial injuries scheme, these doctors are the members of the pneumoconiosis medical panels from whose members the pneumoconiosis medical boards are formed. It is their statutory duty to decide whether a claimant is suffering from byssinosis—or pneumoconiosis, as the case may be—and, if so, to assess the resultant disablement. They are completely independent of my Department, and no Minister can interfere with them in the exercise of their jurisdiction. The panel, based in Manchester, specialises in byssinosis and the extent of its experience may be gauged from the fact that it examined 400 such cases last year. I understand that the boards conduct an X-ray examination and test lung function in all cases unless it is thought medically undesirable to do so. They also consult records of hospital and general practitioners' treatment in appropriate cases and, of course, any evidence presented by claimants. The boards' decisions on diagnosis may be overruled by the more highly qualified medical appeal tribunal—the MAT—to which claimants may appeal under certain conditions.

The medical appeal tribunal, too, is an independent statutory body. It consists of a chairman, who is an experienced lawyer appointed by the Lord Chancellor, and two medical members of consultant status. In pneumoconiosis or byssinosis cases they are specialists in diseases of the chest. In addition to appeal cases, the MATs can also deal with cases referred to them by the Secretary of State under powers conferred by the Social Security Act where he thinks that a medical board's decision ought to be reconsidered.

Medicine is not an exact science and it is inevitable that differences of medical opinion will occur from time to time. But it is essential, under a statutory scheme for awarding benefit, that machinery should exist for making authoritative, final decisions on medical questions. MAT decisions on matters of medical fact are therefore final. As Mr. Justice Diplock, as he then was, said in the Divisional Court in 1958, the tribunals use their own expertise to reach their own expert conclusions on the matters of medical fact and opinion involved. Social security law does, however, make provision for the review of a diagnosis decision of medical boards and MATs if a board is satisfied by"fresh evidence" that it was given in ignorance of, or was based on a mistake as to, some material fact. For the benefit of non-lawyer Members, I should explain that"fresh evidence" in this context has been held by the courts to mean evidence that has come to the applicant's knowledge since the original decision was given and that could not by reasonable means have come to his knowledge before that time. In support of the finality of MAT decisions, the review provisions require that the tribunal's leave be given before one of its decisions may be reviewed. For completeness's sake, I should add that an MAT decision may be set aside by a social security commissioner if he finds it erroneous in law.

There is, of course, no restriction on the number of new claims that a peron may make, but a favourable decision on a new claim cannot cover a period covered by an unfavourable decision on an earlier claim unless that decision is reversed on appeal or review.

I turn to the case of Mr. Penney the vicissitudes of which the hon. Member has vividly recounted. Mr. Penney first made a claim in respect of byssinosis in March 1976. A pneumoconiosis medical board examined him but decided that he was not suffering from byssinosis and his claim was disallowed, as were subsequent claims later, in 1976 and in 1977. In 1978 he appealed to a medical appeal tribunal. He had no right of appeal at that time, but his case was referred to the MAT on behalf of the then Secretary of State. The tribunal upheld the decision of the 1977 board that byssinosis was not present.

However, an independent medical report was submitted to the medical appeal tribunal later that year and the tribunal granted leave for its decision to be reviewed by a pneumoconiosis medical board in accordance with the provision that I have already mentioned.

A fourth pneumoconiosis medical board therefore examined Mr. Penney in March 1979, but did not diagnose byssinosis, so his claim was once more disallowed. However, when Mr. Penney appealed to a medical appeal tribunal it declared, in February 1980, that the board's decision was a nullity because it appeared not to have treated the case as an application under the fresh evidence provisions but to have considered it as though it were a new claim.

Mr. Penney therefore made an application to be seen by another pneumoconiosis medical board, which, having considered all the available evidence, decided in 1980 that he was suffering from byssinosis. The board also reviewed the adverse decisions of the medical appeal tribunal of 1978 and was thus enabled to backdate its decision to that of the original claim in 1976.

The board assessed Mr. Penney's disablement at 50 per cent. from 2 March 1976, 60 per cent. from 2 March 1978, and 70 per cent. from 2 March 1979. I understand that the appropriate disablement benefit is now in payment and that Mr. Penney is also receiving the supplement known as special hardship allowance because his illness caused him to give up his job.

In retrospect, Mr. Penney must indeed feel that he has had to travel a long and very hard road to obtain benefit. I can readily understand that the adjudicating machinery that I have described and the way in which it operates may seem complex and confusing, or even frustrating, to him and to other claimants, particularly when they are in any case beset with the problems of ill health. Of course, no system that deals with such difficult questions, on which experts conscientiously hold different opinions, can satisfy all those who pass through it.

We nevertheless believe that the basis of the adjudicating system is the best that can be devised in the present state of our knowledge. But we are constantly on the look-out for methods of improvement, just as we are always trying to find ways in which we can communicate more clearly to claimants for these and other benefits what is available and how to make a claim and, if necessary, an appeal. We are also always ready to consider any points that those who, like the hon. Member, have a genuine interest in the handling of industrial injuries benefits, may put to us.

As I have explained, I cannot interfere with or comment on the decisions of independent adjudicating authorities in particular cases, but I hope that I have at least been able to explain something of why these authorities exist and how they work.

I am glad that this case eventually had a happy outcome, but lessons may be learnt from the history of Mr. Penney's illness and what he went through. I shall take careful note of the remarks of the hon. Gentleman, and particularly what he said about the slow progress of the case. While I can make no promises tonight, I can assure him that we shall look into it and see what might be done in the future.

I thank the hon. Gentleman for bringing the matter to the notice of the House. It is a valuable contribution to advancing knowledge about this most difficult disease to diagnose.

Question put and agreed to.

Adjourned accordingly at twenty minutes to Eleven o'clock.