HL Deb 14 December 1965 vol 271 cc625-38

3.55 p.m.

Debate resumed.


My Lords, we can now return to the Workmen's Compensation and Benefit (Amendment) Bill. May I, on behalf of my noble friends on this side of the House, give a warm welcome to this Bill? I hope that nothing I say in the course of my speech will be taken to derogate in any way from that welcome. Secondly, I should like to congratulate the noble Lord upon his very clear exposition of an exceedingly complicated matter. As he said, a considerable volume of complex law has developed on this subject. He went on to say that the problems have become more complex; but, as he also said, this Bill represents a long stride forward in dealing with the old cases and is a significant advance. He said he would do his best to avoid jargon. I do not think that that is possible in this matter. We have heard of "old cases", "pre-accident cases", "latent cases" and "time-barred cases"; but fortunately we now have in this Chamber quite a number of noble Lords with trade union experience to whom all these expressions are well known and who have had an intimate knowledge of them and intimate experience of dealing with them.

I regard this Bill as yet another reminder of how long "transitional periods" last. It illustrates how difficult it is for Parliament, when it passes important pieces of legislation, setting up new schemes on new principles, fully to foresee the effect on those who, in one way or another, are excluded from its benefits. That is eminently true of the two National Insurance Acts passed in 1946. The National Insurance (Industrial Injuries) Act established a new basis for, and a new source of, compensation. Under the old Workmen's Compensation Act the employer was made responsible by Statute for compensation; and compensation was calculated on loss of earning capacity. Under the Industrial Injuries Act both employer and employee contributed to a fund out of which compensation was payable; and the basis of compensation was no longer loss of earnings but loss of faculties.

The Minister of National Insurance at the time that Act was passed, Mr. Griffiths, said in 1963 in another place that he could have brought the pre-1948 cases (the so-called "old cases") into the scheme; but he did not do so because it would have meant re-assessing the partially disabled on the basis of loss of faculty instead of loss of earnings, with the result that some of the partially disabled would have got less. There were, of course, two other reasons that he did not mention. I think the first was the immense, perhaps impossible, task of re-assessing all the partially disabled on an entirely different basis when for many, at least, the records of their injury at the time were no longer in existence. The second reason was that the basic payments to old cases came from different sources, and basically, of course, they still do.

It is not surprising that no one fore-saw the fall in the real value that was to take place in these payments. It is perhaps more surprising that nobody foresaw the rise in real earnings that was to take place and the growing disparity between current rates of remuneration and those on which compensation in old cases had been calculated. Of course, they had to wait for a Conservative Government for that. But it might have been foreseen that a Conservative Government would follow a Labour Government as day follows night.


And vice versa.


Of course, night must fall.

There has been a series of Acts of Parliament designed to supplement compensation in old cases, both for total and for partial disablement. Until 1963, it was not the practice to legislate for those supplements in what are technically called rates Bills—Bills which simply raise the rates of National Insurance and Industrial Injuries benefits. This was due to the anxiety of successive Governments to keep the old cases arising under the Workmen's Compensation Acts distinct from the National Insurance (Industrial Injuries) Scheme.

During the passage of the 1963 Act, a very strong plea was made on an Amendment introduced from the opposite side of the House, and supported by both sides in another place, that compensation payable to the totally disabled in old cases should be made up to the same amount as a totally disabled person received under the Industrial Injuries Act. I thought it right, as Minister at the time, to amend the Bill accordingly by doubling the supplement total. Substantial increases were also made in that Act for the partially disabled on maximum rates under the Workmen's Compensation Acts, and also for those partially disabled by industrial diseases, such as pneumoconiosis. Further increases were made under the 1954 Act by the present Government. Indeed, it is true to say that all Governments have contributed to supplementation made available to these old cases.

On the assumption that all future rates Bills would specifically increase supplements for the old cases in the same way, so as to keep them in line with Industrial Injuries benefits for total disablement, this initially disposed of the problem of the total disabled; except for the anomaly that a man who was married before his accident received 10s. a week more than a man who was married after his accident. The noble Lord said, I think, that there as still a thousand cases of men who married after their accident, and I am glad that the Bill removes this anomaly.


My Lords, I think I am right in saying that the pre-accident wife has still to be alive.


I am afraid that I have forgotten that particular point, but no doubt the noble Lord will be able to provide the answer.


My Lords, all dependence has now gone.


My Lords, what I think the noble Lord is saying is that the thousand cases include some cases of pre-accident wives where the wife is now dead.

I should like to ask the noble Lord whether I am right in thinking that the effect of introducing the so-called major incapacity allowance will be that in future no special provisions for these old cases of total disablement will be needed in rates Bills. In other words, whenever Industrial Injuries rates are raised, the rates for the totally disabled, the workmen's compensation old cases, will automatically go up as well. If that is so, it is a useful technical improvement in our procedure.

My Lords, the Bill also puts the pre-1924 men on the same footing as the post-1923 men. I should like to ask the noble Lord whether he can say how many men who were totally disabled before 1924, and how many men partially disabled before 1924, are at present receiving supplementation. One of the troubles of the pre-1948 totally disabled having been allayed, attention was immediately focused, even more strongly than before, as I think the noble Lord indicated, on the grievances of the partially disabled. The main complaint was that there were many partially disabled men who did not receive supplementation and had little hope of receiving it, because their compensation fell below the maximum: the loss of earnings, calculated under the workmen's compensation rules, being less than the minimum of £2 for a single man, or £2 10s. 0d. for a married man This was often due to the fact that a man was working on short time when his accident occurred. I was pressed to abolish the two-thirds rule, and to raise compensation by the whole difference between post-accident and pre-accident earnings. This, however, would have involved a major alteration in the terms of compensation fixed years before. Instead, the Government have chosen—I think wisely—to have the actual loss of earnings reassessed by the Workmen's Compensation Board, if I correctly understand what the noble Lord has said.

The noble Lord has not said much about the principles upon which reassessment will take place. He made one reference to this. If I understood rightly, he said that the reassessment will be based on experience gained on working the special hardship allowance. I hope that the noble Lord will be able to say a little more about the principles on which the reassessment will be made. As I understand it, from reading the debate in another place, no one is to be the loser from the reassessment, and some 10,000 people not at present receiving supplementation are expected to get it, in addition to the 6,000 who are at present getting it. I do not know whether the noble Lord can confirm this. The Minister said in another place that the total extra cost to the scheme arising out of the Bill would be some £1,140,000. I wonder whether the noble Lord can tell us how much of the extra cost this particular provision, which is, after all, the major provision in the Bill, is estimated to account for.

It is intended that the scheme which is to be made to implement this Part of the Bill will set out a series of flat-rate allowances, ranging, if I understood the noble Lord correctly, from about 7s. 6d. to 47s. 6d., according to the loss of earnings determined by the Board. I should like to ask the noble Lord about the time when this scheme will come into effect. Clause 6 of the Bill has one short sentence regarding the coming into operation which I have been unable to interpret in this connection. So may I ask the noble Lord how long he estimates it will take the Board to reassess the loss of earnings for the 6,000 presently receiving supplement, and to sift out all the other 10,000 or more cases? How long will the process continue? When will men be able to get the new lesser capacity allowances? Will it be as soon as the Scheme is passed by both Houses, or will a later date be made in the Scheme? Will all the new allowances come into payment at the same time, or will they start to be paid as loss of earnings is reassessed? If so, will those at present receiving supplement who are awarded a higher sum be entitled to back payment to the start of the Scheme?

My Lords, there are three further points I wish to mention. The first is the problem of the "latents", those who have to live with some disability arising from an accident at work before 1948 and who received no compensation because, technically, there was no loss of earnings. Many of these men have suffered some permanent loss of faculty, and had the same accident occurred to them after 1948, they would have received disablement benefit. As it is, many receive notional payments to keep the cases open, as the noble Lord said. Until the Ministry conducted its inquiry, it was thought that the "latents" numbered about 50,000. Now it seems that there may be 200,000 or more, and that represents a formidable problem. I should like to ask the noble Lord whether the provisions of this Bill mean that unless these "latents" are receiving compensation at present, unless there is an entitlement to compensation, as the noble Lord put it, as distinct from a notional payment, they are excluded from lesser incapacity allowance for ever? If not, what is the procedure? Must they still apply to the courts to have their case reopened and get an award on proof of loss of earnings before they can get an allowance under the Bill?

My Lords, it is never possible to achieve perfect justice. This Bill is designed to meet some of the reasonable and most clamant grievances, but it cannot meet all. It does not by any means put all those who had accidents before 1948 on the same basis as those who have had accidents after 1948. The noble Lord said at the end of his speech that it did rough justice. This means, of course, rough justice between existing beneficiaries and those who will become entitled under the Bill. But one is bound to say—I do not complain about this because of the great difficulty of the matter—that for some it will mean no justice.

There is another group consisting of those who elected to take compensation in a lump sum in place of regular payments. No doubt it will be said that they made their choice, and that is that. But the choice, my Lords, was between a particular sum and a particular regular payment. If subsequently you alter one side of the equation, is it fair to say that the other side must stand for ever and never be altered? I recognise the difficulty of getting evidence of what transpired in the past, but I think it reasonable to ask that this question should not be lost sight of. If I understood the noble Lord correctly, it means that these people are not eligible for unemployability supplement and constant attendance allowance. Is this really the position, and, if it is, can it be looked into? It is right to point out that all the supplements to workmen's compensation come from the Industrial Injuries Fund. Those who were totally disabled before 1946 never contributed a penny to the Fund, and the partially disabled who are contributing now did not contribute before they had their accidents. I am not complaining of this use of the Industrial Injuries Fund—far from it. It has been said, time and time again, with great force, that the present contributors do not grudge in any way these supplements. But let us draw the moral. If it is right for those who never contributed to the Industrial Injuries Fund to draw benefit out of it, it cannot be wrong to suggest that those who never contributed to the National Insurance Fund, or to the pension scheme that preceded it, should receive benefit from that Fund.

Lastly, may I ask about consolidation? Here we have an incredibly difficult sphere of the law, and although, obviously, these provisions will wear themselves out in time, I hope that it will be possible to consolidate all these provisions, now that the present steps are being taken in this Bill. I make no apology for asking all these questions. We all welcome the efforts made in this Bill to devise means of removing some of the existing anomalies, and, on behalf of those on this side of the House, I thank the Government unreservedly for the improvements to be made. At the same time, in its main provisions, this is an enabling Bill. We should like a much clearer explanation of the principles on which compensation is to be reassessed. I hope, too, that the noble Lord will be able and willing to answer the various questions I have put to him, if not today, then probably on the Committee stage. I shall well understand if he is not able to do it to-day. With that, I would give the Bill my blessing and congratulate the Government on having grasped a particularly awkward bunch of this rather rank bed of nettles.

4.12 p.m.


My Lords, I rise to support the Bill. It extends the provisions from the Industrial Injuries Fund for men who suffered injury or disease and came under the pre-1924 Workmen's Compensation Acts and also for those who come under the post-1924 Work men's Compensation Act. I should like to congratulate the Government, and also the Minister, upon bringing forward this Bill to help all those people who come under what we call the old Act, or the old cases. The consequences of their disablement are still dealt with, in the first place, under the old compensation Acts. Under these Acts, compensation is a liability of the employers and a man's entitlement depends on whether or not he has lost earning capacity as a result of his injury. These old Acts were based entirely on loss of earning capacity and not on loss of faculty, like the National Injuries Act.

I may say to your Lordships that the old Acts were very unfair to the injured man. After his period of total incapacity, the man either went before a medical referee or a county court judge. I spent many years of my life attending medical referees and county courts, who in the main determined loss of the earning capacity of individuals. In numerous cases, like pelvis fractures and miner's mystagmus, we would get a report from the medical referee as follows: I have examined the said Mr. So-and-so and find he is still suffering from the disease or injury but he is able to do light work which involves no heavy lifting or stooping. It was on reports like this, in many cases, that we had to ask a county court judge to determine loss of earning capacity. We could not find jobs in the pits of a character which involved no heavy lifting and no stooping. That kind of job exists only for Members of another place or of your Lordships' House. But it was on reports like this that men could get from 5s. to 15s. per week of light rate compensation. I have seen men who had lost an eye go back to their own employment; and under the old Act, once a man did this, there was no loss of earning capacity and he got nothing, though he was minus an eye.

If we were successful in getting a man a sedentary job, his light rate compensation came into the picture again. The law laid down that this type of man would get half the difference between his pre-accident earnings and his new earnings at the light job he was in. So, if a man was earning £2 10s. per week of pre-accident earnings and the judge fixed his light rate at 10s. a week and his new earnings were £2. he then got only 5s. per week, which was half the difference between these two earning capacities. As wages rose, this formula of half the difference eliminated the man's light rate compensation and he was merely paid a nominal sum per week to keep his claim alive; and the payment made in no way represented his true loss of earnings. Then, again, many men commuted their compensation for a lump sum, although they still suffered from their injuries., Many of them commuted for lump sums, contrary to the advice of their own trade unions.

In this very complex situation, arising from the old compensation laws, I believe that the Minister has produced a first-class Bill. The problem of the old cases has been dealt with by successive Governments since the repeal of the old Acts, as can be seen by the list of laws dealing with it since we passed the Industrial Injuries Act in 1946. Under that Act, we gave to men who were entitled to workmen's compensation, unemployability supplement and constant attendance allowance on the same basis as those injured after 1948 and who therefore came under the Industrial Injuries Act.

In 1951, the Workmen's Compensation (Supplementation) Act provided supplements of up to 2s. per week, subject to loss of earnings, for men receiving workmen's compensation in respect of injuries which occurred before 1924. This put these men in the more favourable financial position achieved by later Workmen's Compensation legislation for men—that is for post-1924 cases. The Industrial Diseases Acts of 1951 and 1954 provided allowances for time-barred men suffering from pneumoconiosis, silicosis or byssinosis, which became apparent only long after the men had left the employment that had caused the disease when it was too late for them to claim compensation within the time limits of the old Act. I remember in 1951 on this matter meeting Mr. Osbert Peake—I do not know his title in the House of Lords


Viscount Ingleby.


I remember meeting him, as a member of the miners' group, to ask him to put back the appointed day to March, 1951, and he generously did more than we asked. He put the date back to December 31, 1950, and brought many more of my people with pneumoconiosis and silicosis within the scope of that Act. I should like, many years after, to thank him for what he did in that period.

The present rates of allowance are £2 10s. for the partially disabled, and £2 for the totally disabled, who, in addition, get the £4 5s. a week allowance under the Workmen's Compensation Act 1956. The Supplementation Act 1956 provides a supplementary allowance, now £4 5s. weekly, for totally disabled men at the maximum rate, and this also includes long-term incapacitated cases. In 1961, the Supplementation Act 1951 was extended to schemes under that Act to I cover partially disabled men entitled to compensation at the maximum rate in respect of post-1923 injuries. Payment of £2 2s. 6d., subject to loss of earnings, is available now under the Act to such men.

So, my Lords, over the years, with the great change which the National Injuries Act brought into the field of compensation to injured men while following their employment, the State has had to help the injured, the liability for whom rested on the private employer before the passing of the National Injuries Act. This Bill, therefore, is another step along the road of bringing those men injured before July 5, 1948, into the same category of benefit as those injured after 1948. It repeals the 1956 Act and part of the 1961 Act, and it amends the Supplementation Act 1951 and, also, the Industrial Diseases (Benefits) Acts of 1951 and 1954. It will enable schemes to be made to replace the repealed provisions, and provide, in addition, supplementary allowances to light rate compensation men drawing compensation at less than the full rate. There will be a basic allowance for pre-1924 cases which will provide equality between the pre-1924 and post-1923 compensation cases as a basis for other proposed allowances. The person who is fully incapacitated will now get a full incapacity allowance.

The 1956 Act will be replaced by this Bill, which will give 100 per cent. disablement pension to these people—less, of course, any workmen's compensation, or any basic allowance in payment, which they may receive. However, at the end of the day, these people will be on a par with those who are covered by the National Injuries Act. The light rate compensation man who is receiving light rate compensation for loss of earnings, or who has a basic allowance, is also provided for. The maximum rate for these people will be £2 7s. 6d. per week, and this will be graded to a specified range of loss of earnings. The Minister has said that the loss of earnings will be calculated by a different method from that used for workmen's compensation which I have described to your Lordships today, a departure that I believe will be more equitable than the older and now outdated methods.

I now come to the exclusions. The purpose of this Bill is to provide for the old Act cases who are in receipt of compensation, and who are receiving compensation for loss of earnings, and it does not cover those who do not come within this base. Those with a nominal payment, like those who have no nominal payment, both of whom rely on a declaration of liability in the county courts by the employer, or any other documentary evidence, are excluded from the Bill. I believe that there are some 200,000 men in this category, in a wide variety of circumstances, who had accidents before 1948 but who have no loss of earning capacity for loss of earnings by the old workmen's compensation standards. The Minister amended this side of the Bill in the House by saying that she will fix a nominal figure of 6d.; and I think that with 6d. as a nominal figure she went a long way to meet the Trades Union Congress and the unions who did this investigation before the Bill was promoted in the House.

For time-barred men the Bill enables a scheme under the Industrial Diseases (Benefit) Acts of 1951 and 1954 to provide for men totally disabled by pneumoconiosis, silicosis or byssinosis an allowance equal to the amount of the 100 per cent. disablement pension under the National Injuries Act. This will increase by about 10s. per week the weekly amount now payable under the schemes as at present, and will place the totally disabled time barred man on an equal basis with the men under the Industrial Injuries Act. There is no change in the flat rate allowance of £2 10s. per week payable to those partially disabled with an industrial disease.

The Bill, as I see it, is one of great comfort to those unfortunate men who were injured and compensated under the old Workmen's Compensation Act, and in the main settles the problems that have bothered us for many years. The Minister has done exceptionally well to meet the difficulties arising from the anomalies of the old Act. The cost to be borne by the Injuries Fund will be of a diminishing character over the years ahead. Many of the men to-day, both those fully incapacitated and those on light rate, are getting on in years. The man who was injured in 1926 at 25 years of age is 65 years of age to-day; and there must be thousands over the age of 60. Those of us who are in the trade unions, and especially the Miners' Union—because at least 60 per cent. of these men will be miners—thank the Minister for what she has done. The recipients, I am sure, will feel that at last they are going to receive what their counterparts are getting under the National Injuries Act. I beg to support the Bill.

4.30 p.m.


My Lords, I am most grateful to the two noble Lords who have spoken and welcomed this Bill, and I am also grateful to the noble Lord, Lord Drumalbyn, for his appreciation of the difficulties in which I find myself. But perhaps I can answer some of the questions that he raised. He asked when the Bill was coming into force. It is planned that the Bill should come into effect by March 1 next year, but this is absolutely dependent on the Parliamentary timetable. The schemes to be made require Affirmative Resolution of both Houses of Parliament and cannot be laid before the Royal Assent has been obtained to this Bill. In order to reduce delays to a minimum, as much administrative work as can be tackled is to be pushed ahead concurrently with the Parliamentary programme. Much of this work consists of inquiries of employers about the earnings situation of claimants, and their progress naturally depends on the continuance of the ready co-operation which has always been so forthcoming in the past to assist in the assimilation of the scheme. In addition, there may be as many as 10,000 —the noble Lord agrees—new beneficiaries involved and a correspondingly large number of claims to be examined in full for the first time. The timetable is so finely worked that it is absolutely dependent on no unexpected snags developing.


My Lords, before the noble Lord leaves that point, may I ask him whether that means that if any of these cases are not actually settled by the time the Bill comes into operation, the beneficiaries will get the increased benefit—if it is a case of increased benefit or benefit that is being given for the first time—from the date of the coming into operation of the Bill, or will they get it from the date of the settlement'?


I think that is the position. If they have not had their claims approved by March 1 then the award would be retrospective. I think that is the position, but if I am wrong I will write to the noble Lord.

On the question of consolidation, this has been done on the new scheme and a new consolidated Statute will be prepared immediately the Bill becomes law. The noble Lord asked me questions about the number of men now drawing compensation supplementary pension. There are about 1,350 pre-1924 beneficiaries and 4,700 post-1923 "partials". But the Department believe there might be 3,300 "totals"—both pre-and post-1924 groups.

On the question of the constant attendance allowance, the noble Lord asked: Will these men be able to draw supplementation? All men on workmen's compensation—that is to say, entitled to weekly payments—can draw constant attendance allowance and unemployability supplement on the same terms as their industrial injuries counterparts.

The re-assessment of existing "partials" is being got on with forthwith, and the assessment of new entries will take place after March 1, but we are making inquiries to get the best information in advance. As soon as the "latent" actually gets a compensation loss of earnings he comes in from being latent into the scheme itself.

As regards the cost, I may say that the extra costs are, as I think the noble Lord mentioned, £1,140,000. I think that is right. The totally disabled people will cost £65,000; existing partial beneficiaries, £100,000, and new "partials" £975,000. I think that adds up to £1,140,000, but it is rather difficult to do these sums while trying to listen to what the noble Lord is saying. There may be other points to which I have not been able to reply, and if necessary perhaps the noble Lord will let me know, or if my advisers find there is something I have not covered in this reply, they will let me know and I will write to the noble Lord. But it is rather difficult, in such a complicated subject to remember not only the last point the noble Lord made, but also the one he is making when I am trying to take it down. I am sure he will be sympathetic, because he has been Minister of Pensions and National Insurance. I am grateful to my noble friend, Lord Blyton, for his support, and I am glad that he and his friends seem satisfied as to the position of the "latents". If there are 200,000, and if they all begin to make applications, it will delay the commencement of this scheme for those 16,000 people who would begin to benefit under it if the machinery were not clogged up by considering claims that cannot possibly succeed. I am grateful to my noble friend for what he has said, and I hope the Bill may now be read a Second time.

On Question, Bill read 2a, and committed to a Committee of the Whole House.