HC Deb 23 March 2000 vol 346 cc1205-10

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

7 pm

Dr. Peter Brand (Isle of Wight)

I am grateful for the opportunity to raise what is an important issue to a modest but growing number of people. They suffer the results of working in industries that used asbestos. Asbestos can cause pleural thickening, which is not in itself a great problem, but it can lead to further disease. It can cause asbestosis, which can be a crippling respiratory disease, but most importantly, it can lead to malignant mesothelioma, which is an especially pernicious cancer that is extremely resistant to any treatment and is usually fatal within six to 48 months of diagnosis.

Malignant mesothelioma typically occurs 20 to 40 years after exposure and, interestingly, in 1968, it caused 200 deaths, in 1999 there were some 1,500 deaths, and in about 10 years' time, it is projected that there will be some 3,500 deaths. That trend will probably continue for the next 15 to 25 years.

It has been understood that asbestosis carries a risk for some time. Undisturbed asbestos is not a great problem, but disturbed asbestos, as seen in industrial applications, has been under suspicion since the early 1950s. It is sad to record that no meaningful legislation was introduced until the 1970s. People now face the consequences of having worked in what were essential industries, such as shipbuilding. My interest is predominantly in those people who worked in the shipbuilding industries on the south coast, notably in Cowes on the Isle of Wight, and who are now presenting with that malignant disease.

I am aware that the industrial injuries disablement benefit applies to employed earners who contract the disease and I know that payments are made under the pneumoconiosis workers compensation legislation. I have also noted the update that will be applied this year. However, the payments under those schemes are hardly generous. They do not compensate the sufferer in any way for the disease, nor do they compensate the family and carers of the individual concerned.

People are, therefore, encouraged to turn to litigation to obtain compensation and to take actions against their former employers. That is a difficult job for those vulnerable people. If one knows that one has only 12 to 24 months to live, one does not really want to spend some 12 to 18 months going through the courts.

The state benefit system requires strict proof of the disease and, in that instance, the diagnosis is not usually in doubt. Bronchoscopy usually produces a specimen that can be proven histologically—it is awful that someone in my trade still stumbles over the technical terms—which means that it can be proven microscopically. There is no doubt of the type of disease that the claimant is suffering. It is particularly irksome, therefore, that when people are encouraged to go through the courts, many of the procedures are repeated and multiple expert opinions are sought while litigation is resisted.

I have been encouraged to seek this debate by a constituent, who visited me a week after the successful completion of his court case last month. He was given the diagnosis of his fatal disease on 4 January 1999 and it took him 12 months, which is a short time for such cases, of the rest of his life to establish decent compensation for himself and his family. He has written me a good letter, which I will quote. He says: The existing law in these cases is ludicrous!!. At the present time the defence pleads "not guilty" routinely and to obtain proof of guilt the claimant's legal team have to employ a number of "experts" to prove the case. Defence then employs a similar number of "experts" to disprove these arguments. He makes some useful suggestions, to which I will return. He believes that in MOST cases the following would be a better procedure.

  1. 1. A suitably Qualified Surgeon and a Pathologist make a diagnosis. (this is the basis that later "experts" use to write their … reports.
  2. 2. A suitably experienced Litigation Executive should then prove where the claimant was employed, exposure to asbestos, loss of earnings, pension rights, etc.
The matter could then be placed before a judge or a tribunal and a decision made expeditiously.

At the moment, the company responsible uses time in a war of attrition, hoping that it will wear out the claimant and the case will be dropped. I have been told that there have now been many hundreds of cases, which have been strongly resisted but have all been settled, often just before the court hearing, and that 95 per cent. of those claims have been successful.

The present situation is not reasonable. The state system compensates, and rightly so, but the compensation is inadequate. Companies and their insurers know that they have a liability—there is enough case law now to know what is likely to succeed in court. The contribution made by the companies to the Government scheme is grossly inadequate to provide decent compensation.

We now have an opportunity to get the companies together with the Government and the legal side to find out whether a more meaningful compensation scheme can be constructed. As a minimum, one would expect a more expeditious legal way for people to claim—perhaps with specialist judges, or by having expert lawyers and with the acceptance that one does not have to replicate everything whenever an expert opinion is sought.

There is much interest in the House in the issue. Parliamentary questions have been tabled by the hon. Members for Hendon (Mr. Dismore), for Clydebank and Milngavie (Mr. Worthington) and my hon. Friend the Member for Portsmouth, South (Mr. Hancock). The House of Commons Library has produced an excellent research paper. The all-party group for occupational safety and health, which is chaired by the hon. Member for Barnsley, West and Penistone (Mr. Clapham), has recently set up an asbestos panel.

The only people to benefit from the present system are some of my medical colleagues, and lawyers. I hope that the Government will develop a system under which the people who benefit are those with a reasonable claim to have suffered a disease that was foreseeable because of the industry involved. The industries that I am thinking of were often of strategic significance to this country. A system such as I have advocated would allow us to deal with the anomalous situation faced by ex-service men, which I know has exercised the House a great deal.

I am grateful to the Minister for being here. I was not sure whether the most appropriate Minister would have come from the Department of Health, the Department of Social Security, or the Lord Chancellor's Department. I am very glad that the Minister attending this debate represents the Department of the Environment, Transport and the Regions, which has the widest experience of dealing with industrial claims of this sort.

I hope that the Minister, who is well known for expertise in her field, will also do a bit of joined-up governing and negotiate with her colleagues to see whether a system cannot be set up that would be in the interests of my constituent and people like him, and in the interests of insurance companies and former employers. Those organisations must be wasting a vast amount of time and money contesting claims, 95 per cent. of which fail in the courts.

7.11 pm
The Parliamentary Under-Secretary of State for Social Security (Angela Eagle)

I begin by congratulating the hon. Member for Isle of Wight (Dr. Brand) on securing this Adjournment debate. I am glad to be able to respond to the important issues that he has raised.

The hon. Gentleman is right: I used to be a Minister at the Department of the Environment, Transport and the Regions, where I had responsibility for the Health and Safety Executive. I also worked very hard—and, thankfully, with success—to produce agreement in Europe regarding a ban on white asbestos. That was the final form of asbestos, which was legal at the time. The ban came into effect in the United Kingdom and the European Union last year, and I am very proud of that.

However, I am now a Minister in the Department of Social Security.

Dr. Brand

May I therefore say how grateful I am to have a Minister from the Department of Social Security responding to the debate? The rest of my remarks still apply.

Angela Eagle

I acknowledge the hon. Gentleman's gratitude, as the Department of Social Security has prime responsibility for running the industrial injuries disablement benefit scheme. That scheme provides some compensation for people who can prove that they have developed one of the four prescribed diseases as a result of being exposed to them in the course of their work. Members of the armed services have their own scheme, which is part of the war pensions benefits regime.

The people who really lose out are those who suffer environmental exposure, with the result that they cannot prove that they have been exposed in the course of their work. They therefore do not qualify for the industrial injuries benefit but have to make do with the ordinary disability benefits available to people with chronic or disabling diseases not acquired at work.

Different schemes and different approaches exist, but that reflects the industrial preference that any industrial injuries benefit scheme must, by definition, inject into a system. I agree that there is some complexity in the existing arrangements.

The hon. Member for Isle of Wight spent some time describing a process that will be only too familiar to many hon. Members. Companies seek to avoid their liability for personal injury suffered by people whom they employed in order to avoid having to pay compensation. Many people would recognise the hon. Gentleman's description of the delays that can occur when attempts are made to take cases through the courts.

I promise to pass on what the hon. Gentleman said to the Lord Chancellor's Department. His description of what happens in these difficult cases is familiar to anyone who pursues a personal injury case through the courts, especially when there may be a significant number of potential beneficiaries. Often companies do not and will not admit liability. There are examples of that in the litigation against tobacco companies in other countries, as well as the more obvious cases in this country to which the hon. Gentleman referred. The Lord Chancellor may have views on the future of personal injuries litigation in order to ease some of these difficulties, but that is a matter for him rather than me. However, I promise to pass on the hon. Gentleman's comments.

There are other difficulties with long latent diseases, such as the four prescribed asbestos-related diseases that the hon. Gentleman has mentioned. It sometimes takes so long for them to become apparent—it can take up to 40 years after exposure before some symptoms become obvious—that employers have often disappeared, and the companies responsible for the original exposure of individuals have long since gone out of business. That is why the industrial injuries disablement benefit scheme exists. When I was a Minister at DETR, I had responsibility for matters arising under the Pneumoconiosis Etc. (Workers Compensation) Act 1979, which is linked to the industrial injuries disablement benefit.

We do what we can to provide cover for asbestos-related diseases within the industrial injuries disablement benefit scheme. The four prescribed diseases in the regulations are pneumoconiosis, mesothelioma, primary carcinoma of the lung and diffuse pleural thickening. The benefit scheme covers all employed earners, and there is no need to establish whether anyone was at fault. With many such no-fault compensation schemes, the compensation awarded tends to be lower because there is no court case and no fault is proved. The benefits are paid in addition to other incapacity and disability benefits, and they are not taxed.

Industrial injuries disablement benefit pays up to £108 a week, which will go up on 12 April to £109.30 if someone is assessed as 100 per cent. disabled. Additional benefits can be paid if someone is in need of constant care and attention, and when such a need is likely to be permanent. The additional benefits can amount to another £131 a week. I know that when people's health is affected, no figure can ever seem like reasonable compensation. This is merely the Government saying that they recognise the legacy of exposure to asbestos and the damage that has been caused. We want to give extra assistance to those who have been disabled in this way by their work.

Over the past five years, about 1,200 people a year have been awarded industrial injuries disablement benefit for the four prescribed asbestos-related diseases. For sufferers of mesothelioma, the majority of awards of benefit are paid at the maximum 100 per cent. disablement rate. For the other three prescribed diseases, benefits are paid on average at the 20, 30 and 40 per cent. rates of benefit, attracting weekly payments of between £21 and £43 a week. The payments continue for all the time that the person is disabled—usually for life, in these instances.

The Government get advice on which diseases should be included in the industrial injuries disablement benefit scheme from the Industrial Injuries Advisory Council. The council is an independent, expert body that includes representatives of both employers and employees as well as medical and other experts. Its most recent report on these diseases was published in 1996. It reviewed in detail the coverage for asbestos of the prescribed diseases and occupations within the industrial injuries disablement benefit scheme.

The council recommended improvements to the rules in respect of these diseases. Those were agreed and came into effect in April 1997. In particular, the removal of the usual 90-day waiting period for sufferers from mesothelioma helps to get benefit to people more quickly. The considerable widening of the range of occupations included in benefit provisions for this disease helps to get benefit to more people. That touches on the issue that the hon. Gentleman raised with respect to the shipbuilding industry. I represent Wallasey, which is on the River Mersey and has a great tradition of maritime activity, so this is also an issue for me as a constituency Member of Parliament. There is regrettably a great legacy of exposure to asbestos in such industries.

It is a continuous part of the IIAC's role to monitor scientific research and publications on all occupational diseases. This monitoring includes asbestos-related diseases. In the 1996 report, the council considered whether lung cancer without asbestosis or pleural thickening following substantial exposure to asbestos should be prescribed. I know that there has been some pressure from, among others, the hon. Members whom the hon. Gentleman said take a particular interest in the issue, to extend the prescription of disease to lung cancer. The council recommended to the Government that prescription was not appropriate in the light of current scientific evidence. However, the council will look again at any issue if new and robust scientific evidence emerges or is brought to its notice by whatever means.

It is important to remember that the industrial injuries disablement benefit scheme is an occupational scheme designed to compensate employed earners. If it is clear that in a particular case a person has contracted an asbestos-related disease from exposure that was nothing to do with their work, then industrial injuries disablement benefit is not payable. However, these diseases, particularly mesothelioma, can take many years to develop and it is important for anyone claiming benefit for this disease to tell the Benefits Agency about any jobs that they did when they were younger in which they could have been exposed to asbestos—even if the jobs were only of short duration. It is important that people who develop such symptoms think long and hard about where they may have been exposed.

There are also other forms of compensation for asbestos-related diseases. I mentioned earlier war pensions provisions for service men and women whose service has resulted in their contracting the diseases. As the hon. Gentleman explained in some detail, people can make civil claims for damages against a negligent employer, but no one would discount the difficulty of proving such claims and taking such litigation through the courts. I accept the points that he made about that.

The Department of the Environment, Transport and the Regions is responsible for a compensation scheme for people who have contracted certain lung diseases, including the diseases caused by asbestos, compensation for which is paid under the DSS scheme. The scheme is designed to pay mainly slate, quarry and some pottery workers who were subject to dust and developed pneumoconiosis as a result.

The schemes can appear complex. We try in the DSS to ensure that when we are made aware of a case we fast-track it as much as possible. We require medical evidence and we have to go through processes to check the claims, but, especially with mesothelioma, we fast-track cases to get a result as quickly as possible.

Dr. Brand

I put it on record that my complaint and that of my constituents is not with the Minister's Department or the way the scheme operates. I know from my clinical experience how co-operative people in the Benefits Agency can be in these circumstances—they are invariably helpful.

Will the Minister consider whether there is any chance of the companies currently at risk of litigation making substantial contributions to improve the very efficient but, I am afraid, not very generous state-run benefit system?

Angela Eagle

I cannot vouch for those companies, nor can I speak for them. Perhaps this is one of my more pessimistic days, but, given that the Health and Safety Executive suspects that there is a great legacy of exposure to asbestos—about 3,000 people a year develop the disease—it would be an issue for Lloyd's of London and other insurers as to the likely compensation and liabilities after years of use of asbestos, before we knew that it was as fatal as it can be. I think the hon. Gentleman may be optimistic in his assessment of the number of employers who would come forward. We can always ask, but I suspect I know the answer. Companies continue to fight every personal injury case that goes to court. They do so for a reason. We can only speculate about that reason, but I have given the hon. Gentleman some ideas about that.

The Government can ban the remaining available types of asbestos. As one of its priorities, the HSE is taking action to ensure that the asbestos that remains in many buildings and public spaces that are in constant use is properly contained. We can ensure that the regulations for change of building use or for demolition are more effectively policed and that they continue to offer and increase protection for those who may be exposed in future to latent asbestos in buildings.

There are compensation schemes. We are working carefully through the HSE and the construction industry to ensure that the legacy is dealt with in a way that minimises the chances of future exposure. However, we must realise that there is a legacy from past exposure, and that some of the diseases can take between 20 and 40 years to manifest themselves.

I understand and share the hon. Gentleman's concern. I shall pass his comments to the Lord Chancellor's Department, and shall be happy to keep in touch with him about any other individual cases.

Question put and agreed to.

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