NATIONAL HEALTH SERVICE BILL (Hansard, 15 February 1966)

§ LORD BOWLES
My Lords, I think it will be to the convenience of your Lordships if we discuss the two Orders on the Order Paper together, but of course I shall move their approval separately later. Although on the Order Paper the Pneumoconiosis Order is down before the Workmen's Compensation Order, I think it would suit the House better, and would be historically sounder, if I spoke first of the Workmen's Compensation Order.
Both Schemes give effect to the provisions of the Workmen's Compensation and Benefit (Amendment) Act 1965, which was recently before your Lordships. They replace the existing Schemes dealing with these subjects and consolidate the provisions of those Schemes other than those which have now to be replaced as a result of the new concepts introduced in the 1965 Act. They also continue the administrative boards which control the existing Schemes. These boards will consist of a chairman and deputy chairman, both very experienced lawyers, two representatives of employers' associations, two of employees' associations and two senior members of the Minister's staff. All have been chosen for their specialised knowledge of the problems of workmen's compensation. Both Schemes deal with men injured at work or suffering from diseases contracted at work before July, 1948. Such 973 men fall into two categories, each of which is dealt with by the appropriate Scheme.
The Workmen's Compensation (Supplementation) Scheme deals with men entitled to weekly payments of workmen's compensation in respect of injuries sustained as a result of their accident. The scheme itself is solely concerned with the provision of supplementary allowances payable in addition to those payments of workmen's compensation. As your Lordships will be aware, liability for workmen's compensation was a matter between the employee and his employer (or his covering insurance company), and cases of dispute fell to be determined in the courts. The Scheme does not interfere in any way with the existing machinery for dealing with claims for workmen's compensation by the worker, or for death benefit by his dependants if death was due to the compensation accident.
The new Scheme provides three kinds of allowances. I think that perhaps these allowances may be better explained if I take them in the following order. First, there is the major incapacity allowance for the totally disabled man. This is to be at a rate which, together with the compensation payable to him, will amount to the 100 per cent, disablement pension payable under the Industrial Injuries Acts. Secondly, there is the lesser incapacity allowance, which goes to men entitled to weekly payments of workmen's compensation who do not qualify for the major incapacity allowance. The lesser incapacity allowance is payable at one of a series of rates set out in the Schedule to the Order, each of which is related to a specified range of loss of earnings. The board administering the scheme will determine the loss of earnings for this purpose in accordance with the generous rules provided in the Scheme, and the Scheme expressly provides and makes it clear that the board are in no way to be fettered by the now out-moded concepts of the workmen's compensation legislation as to the interpretation of the phrase "loss of earnings". This is a great step forward. Lastly, there is the basic allowance which merely continues the existing special provisions for men injured before January, 1924. Its purpose is to ensure that they are put in broadly the same position as men injured after 974 that date whose compensation was assessed under the more generous provisions of the later workmen's compensation legislation.
The Pneumoconiosis, Byssinosis and Miscellaneous Diseases Benefit Scheme deals with men disabled as a result of industrial diseases contracted at work in the days of workmen's compensation, but who were Statute-barred because the disease manifested itself only after the time for claiming under those Acts had expired. These men have no compensation and cannot qualify under the Industrial Injuries Act. The Scheme, therefore, sets out to provide redress by putting them broadly on the same footing as the men on compensation, taking the latter's compensation and supplementary allowances together. Consequently, this particular Scheme provides not only allowances for the totally disabled and the partially disabled, but also a death benefit for the dependants of those whose death was due to the disease in question.
The totally disabled men will get the same as the aggregate accruing to the men under the Workmen's Compensation Scheme—namely, the current rate of the 100 per cent, industrial injuries disablement pension. From the point of view of the partially disabled, it was not possible to achieve exact similarity of treatment, since the nature of the disease— the imperceptible deterioration which sets in over a long interval, and the heavy overlay of other effects; for example, old age—made it neither possible satisfactorily to find a reliable estimate of the loss of earnings due to the disease alone, nor to make any precise determination of the degree of disablement. Consequently, it was decided in the original Scheme to set out the allowance at a flat rate irrespective of either loss of earnings or exact loss of faculty. All are therefore paid at the same rate. The provision merely reiterates the existing allowance paid under the existing Scheme, which is now to be replaced. The death benefit provided under the new Scheme is also carried over from the existing Scheme.
I understand from what has transpired in another place that it would be helpful if I could give an idea of the steps which are being taken to ensure, so far as is reasonable, that none of those who may benefit under the Schemes will be unaware of 975 that possibility. To begin with, men who draw allowances under the existing schemes and who may be immediately affected by the changes—there are over 10,000 of these—will each receive a personal notification from the board running the Scheme. Thanks to the ready cooperation of employers and insurance companies, the board has also been able to find out the names and addresses of most of the 10,000 potential new beneficiaries, and well over half that number have already been invited to claim. There will also be publicity by the usual media of Press and radio. It will be specially directed at the workers most likely to be affected.
I think your Lordships will wish to know that those who are administering this Scheme have been very busy since Royal Assent was given to the empowering Act. None of this work, however, can be given full effect until the Draft Schemes are made. It is planned that they will operate from March 1, the date on which the 1966 Act formally comes into operation, but until the Schemes have been approved by this House the board cannot go ahead with the remaining stages of their work. I beg to move the first Motion standing in my name.

§ LORD DRUMALBYN
My Lords, I should like to thank the noble Lord very much for his extremely clear exposition of a complicated matter. Indeed, I think I could go further and say that, as Regulations and Orders of this description go, these are amazingly clear. I would also congratulate the noble Lord on the work that has been done already to notify people in advance of possible claims they may be able to make under the Act.
There are one or two questions I should like to ask the noble Lord. First of all, there is no specific provision in the Workmen's Compensation Scheme for a review of the rates of the lesser incapacity allowances under the scheme. This, of course, is in marked contrast to the rates of the major incapacity allowances—that is, for the totally disabled—and I wonder whether the noble Lord is able to give us 976 some assurance that, in view of the rapid increase in earnings and the change in the value of money, such revisions will be possible under the new Scheme.
Secondly, I should like to mention the question of the revision of decisions. This was a matter to which I referred on the Second Reading of the Bill. The point here is that both Schemes enable awards to be varied if there has been a relevant change of circumstances. The Workmen's Compensation Scheme also enables review of a decision not to grant an award if there has been an exceptional change of circumstances. I pointed out at an earlier stage that, as these regulations have been interpreted in the past, the change of circumstances has had to be very exceptional indeed before anything of this kind could be taken into account. I hope that in this case the word "exceptional" means an "exceptional change" and not a "virtually impossible change" of circumstances—in other words, that where circumstances are unusual or exceptional they will be taken into account.
The third point I should like to raise is a curious difference in language between the two Schemes. There are two Schemes, and under paragraph 13 of both of them the boards are to give the claimant a hearing unless they are satisfied that the question can be properly determined without a hearing. Then the Workmen's Compensation Scheme goes on: … in which event they shall inform the claimant in writing and may proceed to determine the case without a hearing. That is very fair and proper. However, the Pneumoconiosis, Byssinosis and Miscellaneous Diseases Benefit Scheme says and shall proceed…". I should hope to hear that the difference in wording reflects the difference in the approach to the two schemes. The Pneumoconiosis Scheme is administered very much in line with medical opinion and medical advice; whereas I would hope, under the Workmen's Compensation Scheme (where a great deal more discretion is available to the board) the word "may", in distinction to "shall", really conveys that there will be room for a certain amount of argument as to whether a claimant should or should not be heard.
I am told that under the Scheme so far, the number of claimants who want 977 to be heard is not very great. Nevertheless, this is a point which can give rise to a great deal of friction, quite out of proportion to the number of refusals, if there are any refusals; and in circumstances like that a good deal of prejudice is apt to arise against the Board. I understand that it is to be the same Board which deals with both Schemes. I do not know whether this is a case where there could be reference to the Ombudsman (which I understand is a subject to be considered in another place) if there should be a refusal. These are the points I should like to put forward. They are essentially points of interpretation— although I think that the special points I have made, regarding the revision of the allowances, and getting the lesser incapacity allowance in line with changes in the cost of living, are extremely important. While putting forward these matters, I would express a welcome for the two Orders and congratulate the Government in having made them so clear.

§ LORD BOWLES
My Lords, I thank the noble Lord for those kind remarks. The position as regards the difference between partial and major incapacity allowances is this. Major incapacity is a total, 100 per cent, incapacity, and therefore if a person is found to be totally incapacitated he gets a major incapacity allowance of 100 per cent. The lesser incapacity allowance relates to disablement at a rate of less than 100 per cent.; that is, anything from 1 per cent, to 99 per cent. When the main major incapacity allowance goes up there will be a review of the lesser incapacity allowances, which are scaled according to loss of earnings, with a view to raising them appropriately, as with the major incapacity allowance.

§ LORD DRUMALBYN
My Lords, the point is that the major incapacity allowance goes up automatically along with the standard rates. When the standard rates of Industrial Injuries benefit are raised, that goes up automatically. On the other hand, the lesser incapacity rates will not go up automatically. But I think I can rest on the assurance the noble Lord has given that when the standard rate goes up then, at the same time, the lesser incapacity allowances will be reconsidered.

§ LORD BOWLES
My Lords, that is what I tried to say. When the major 978 incapacity goes up, so will the others. They cannot be varied without the major one being altered.
About the decision by the boards and the question of acceptance, those boards are, as the noble Lord knows, the same. They administer both Schemes and they have a great power to review their own decisions. If any good cause is shown, they are prepared to look again at any case. The word "exceptional", to which the noble Lord referred, will probably be interpreted by the chairman of the board to see whether or not the review should take place. If there are no new facts, I do not see any reason why the board should change its mind. But if evidence is brought, then I am sure, from what I have been told of the boards and of what I have heard, that they will be ready to go into the matter again. If there has been any serious miscarriage of justice, then I gather that the ordinary writ of certiorari could be used and the matter taken to court to see whether the board were doing their duty properly. There have been no suggestions that they have not been doing their duty properly, and I am surprised that there could be any criticism of the decisions that have been made. I doubt whether the noble Lord has any particular case in mind. He has been in the Ministry himself, and knows the personnel of these boards; he knows that they carry the great confidence of all who have anything to do with the administration of these Schemes.
On the question of the determination, in the pneumoconiosis part of the boards' activities they are bound by the advice of medical officers, referees or commissioners. They cannot do anything about that. If a doctor says, "This man does not suffer from this disease", then the board, of course, cannot deal with it. If, on the other hand, a medical officer says that a man comes within the Scheme, then the board deal with the matter on the basis that this is an established claim and they go into the matter of the amount of loss of faculties and other matters arising under the Scheme. I hope that that answer satisfies the noble Lord.

LORD REA
My Lords, may I briefly join with the noble Lord, Lord Drumalbyn, in welcoming these Schemes very much? We are obviously writing in something which had been a little 979 unfair, a little difficult, and I think it is a good thing that it should be done. There are a few verbal points I should like to take up with the noble Lord, Lord Bowles. He spoke about major disability as being "100 per cent." In English, that would indicate that disabilities of 98 or 99 per cent, would be minor disabilities. I am sure that he does not mean this. Perhaps that point could be watched as the matter goes through.

§ LORD BOWLES
My Lords, "100 per cent." is the phrase that is used in the Scheme. I can read the relevant passage.

LORD REA
My Lords, I was only querying the identifying of "total" with "major".