§ 5.9 p.m.
§ The Earl of GOWRIE rose to move, That the draft regulations laid before the House on 5th December 1979, be approved. The noble Earl said: My Lords, these regulations are to be made under the Pneumoconiosis etc. (Workers' Compensation) Act 1979, which was passed by the previous Parliament immediately before the dissolution in April this year, and came into force on 4th July. Regulations enabling claims to be made came into operation on the same day. The regulations which your Lordships are asked to approve tonight set out how the amounts to be paid to those who satisfy the entitlement conditions under the Act will be determined and, by means of the tables, enable the actual amounts payable in particular cases to be precisely calculated.
§ It had originally been hoped that these regulations might be approved before the 1588 Summer Recess and, when it became clear that this could not be done, that they would be laid as soon as Parliament reassembled after the summer. The preparation of the regulations has, however, proved a very much more complex task than had been envisaged. It is most unfortunate that this has inevitably delayed payments to those unlucky and, for the most part, elderly people.
§ The regulations take as their starting point the provisions of that part of the National Coal Board's pneumoconiosis compensation scheme, introduced in October 1974, which covered sufferers, and dependants of deceased sufferers, who had been diagnosed as suffering from pneumoconiosis prior to that date. This was foreshadowed when the Bill was introduced in April. There are, however, a number of variations from the details of the NCB scheme, and I will call attention to the most important of these.
§ Regulation 3, taken in conjunction with Table 1, is the key regulation, which sets out how payments to living sufferers from one of the diseases covered by the Act are to be determined. The amount of the payment is to be decided by reference to what is called the first determination that the sufferer was suffering from the disease—usually by a Pneumoconiosis Medical Board. The amount the sufferer receives will depend on his age at the time of that first determination, and the extent of his disability assessed at that time.
§ Those familiar with the NCB scheme will know that under that scheme, five year age bands were used whereas we have adopted single age bands. Single year bands seemed fairer to us; five year bands would have led to some people losing a great deal if their birthday fell just the wrong side of the dividing line. However, the major variation from the NCB scheme is in the actual amounts to be paid at corresponding points on the tables.
§ The NCB scheme was introduced in October 1974. Because of inflation, money is now worth only about half of what it was then. So it seemed right that an average payment under tile Act should be about twice what it would have been using the NCB tables. The obvious way to achieve this would have been simply to double all the NCB figures. However, 1589 there was a good reason for not doing this. If the amounts of the payments to be made in particular cases are to be determined by reference to the age and level of disability of a sufferer when he was first discovered to have the disease, then obviously the amounts should take into account the likelihood that the disability might become more severe as the sufferer gets older. This factor is most important in cases where, at the time of first diagnosis, the disease was not very severe—that is, where the assessment at that time was only 10 per cent. or 20 per cent.
§ It seemed clear, both from the Department of Health and Social Security statistics and other information, that the proportion of those first diagnosed as 10 per cent. and to a lesser extent 20 per cent. disabled, progressing to the more severe levels of disability, is considerably greater for the main groups who will benefit under the Act—slate, cotton and asbestos workers—than it is for coal miners. The most satisfactory way of reflecting this seemed to be to reduce the differential between the amounts payable for those first diagnosed at any given age at the lower levels of disability and the amounts payable for those diagnosed at the same age with higher disability levels. The amounts from the NCB tables were therefore increased for sufferers first diagnosed as 10 per cent. disabled by 50 per cent.; for sufferers first diagnosed 20 per cent. disabled by 25 per cent.; and for sufferers first diagnosed as 30 per cent. disabled by 10 per cent. All the figures in the resulting table were then increased by 60 per cent. This is estimated to produce average payments approximately the same as if there had been a straight 100 per cent. increase in the figures in the NCB tables.
§ Regulation 4 covers payments to the great majority of dependants of deceased sufferers. It follows very closely the pattern under the NCB scheme. If the sufferer was receiving disablement benefit for the disease, the dependant receives an amount arrived at by taking the amount which would have been payable to the sufferer if he were still alive, and then deducting from it the amount which would have been payable to him if his age when he was first diagnosed had been his age when he died. If the sufferer died as a result of the disease, an additional 1590 payment will be made in accordance with Table 2 of the Schedule. These amounts have been increased over the NCB equivalents in the same way as in Table 1. A dependant who is entitled to a payment but where disablement benefit was not payable to the sufferer in life will receive only the latter payment.
§ Regulation 5 deals with the special case of dependants of sufferers who died from diffuse mesothelioma—a cancer caused by sharp asbestos fibres piercing the wall of the pleural cavity, and medically distinct from asbestosis. These rather complicated provisions are needed, partly because this fatal disease almost always progresses within a year or two from first diagnosis to death, and partly because those who develop it may well also be sufferers from pneumoconiosis.
§ Regulation 6 contains special provisions covering those sufferers who were also suffering from tuberculosis when pneumoconiosis was first diagnosed. These are needed because if and when the tuberculosis becomes inactive, the assessed level of disability may actually go down—the only circumstances in which this happens.
§ Regulation 7 covers the minority of cases where it will be impossible to confirm from any available official records the information necessary to work out the right payment in accordance with the tables. These should be confined to a small group of dependants, unlikely to number more than a hundred altogether. The Joint Committee on Statutory Instruments has drawn special attention to these regulations on the grounds that the provision in this regulation for the Secretary of State to pay whatever amount appears in any particular case to be just and equitable in the circumstances is an unexpected use of the powers in the Act. The effect of the provisos to the regulation will however be to determine the precise amount payable in substantially all the cases concerned. We adopted the form of words which the Joint Committee has questioned because we are most anxious to avoid claimants being precluded from receiving a payment in accordance with the foregoing regulations because of some purely technical deficiency in the information available.
§ Regulation 8 sets a minimum amount of £725 to be paid to any dependant who is 1591 entitled to a payment. Table 1 sets the same minimum for sufferers, but without Regulation 8 the dependant of a sufferer who died shortly after the disease had been diagnosed, but not as a result of the disease, would otherwise receive nothing, or only a derisorily small sum.
§ In conclusion, may I apologise again for the complexity of these regulations. I could have wished they might be simpler, but I believe that in the circumstances these regulations are as fair as any that could have been devised, and I ask the House to give them their approval. I beg to move.
§ Moved, That the draft regulations laid before the House on 5th December 1979, be approved.—(The Earl of Gowrie.)
§ 5.17 p.m.
§ Lord WELLS-PESTELL
My Lords, again we on this side of the House are grateful to the noble Earl for explaining, albeit in some detail, the purpose of this order. I noted that the noble Earl referred to the comments of the Joint Committee on Statutory Instruments in their Twelfth Report. However, I am not quite clear whether what the Government are doing is to the advantage or disadvantage of those who have some entitlement to an award.
As I understand the order—although I may be quite wrong about this—the amounts are fixed according to the age of the individual and the percentage arrived at in respect of disability. I am wondering whether it will be possible for that to fluctuate. If authority is given under the order to use discretion, presumably that discretion can go below or it can go above. In some respects, this seems to me, unless I have misunderstood it—and it is quite possible that I have misunderstood what the noble Earl has said—to act sometimes to the advantage of the individual and sometimes to his disadvantage. If it is possible for the noble Earl to clear up that point I shall be grateful.
I know that my noble friend Lord Hale, who has spent many years campaigning on behalf of people who are suffering from these various diseases, will, like me, be glad to see that the matter has at least 1592 been finalised. I am grateful to the noble Earl. We on this side of the House approve the order, but I should be grateful for any comment which the noble Earl may be able to make about what I have said.
§ 5.20 p.m.
§ Lord HALE
My Lords, I think it would be appropriate if I were to say a few words now. I paused for a moment to enable the Liberal Party to avail themselves of their right to follow the noble Lord on the Front Bench; I gather that they do not intend to intervene. I am grateful to the noble Earl for the clarity of his exposition. Had I heard all he has said in the last few minutes I might have been able to give more attention in the early hours of the morning to what is happening in Western Australia. Indeed I have been spending a great many hours trying to find our precisely what the Act means. The noble Earl has explained it in a way that will commend itself to both sides of the House and which gives rise to no comment.
I raised the question of the position of asbestosis originally when we had about two-and-a-half minutes to discuss all the stages of the Bill in manuscript, on, I think, 2nd or 3rd April. There were some additional notes provided in writing. As mesothalioma undoubtedly has some connection with asbestosis it was said that asbestosis was included. I was wrong, of course, because it is already included in the Act of 1975 and is so catalogued in many of the tables recently published in relation to industrial diseases. Although I think that academically it is a little dubious, it is extremely advantageous to everybody, and therefore we are not worried about an academic point, which in any event has now been made clear.
My Lords, I have had, I suppose, nearly 60 years' experience in connection with industrial diseases in various forms, but I frankly had never heard of mesothelioma until I came into this House when these problems were being ventilated. There is provision, of course, in the Act for appeals on the lines set out in the Old Cases Act, the Social Security Act 1975. I cannot, frankly, see much possiblity of points of law arising. While paying great respect to the Select Committee on Statutory Instruments, which has 1593 obviously devoted some attention to this matter, I did in fact—and I am grateful to the noble Lord, Lord Wells-Pestell, for having called my attention to it—refer to their note which tells one where the evidence that they heard can be found. I went to consult that and I find that it has not been printed and is not available. I gather it is in this respect just the opinion of the Department, properly expressed, and I should not have thought, in view of the very wide powers given to the Secretary of State, that any court was likely to question any exercise of authority.
In any event, I cannot see that the Secretary of State would have much difficulty, if he does have to assess a figure, in assessing it on the basis of exact regard to one of those published in the appropriate table in the regulations. The noble Earl was good enough to answer to a Written Question—which was certainly not put down in any way to cause embarrassment but rather to satisfy the apprehensions about alleged delay, which I did not share. I thought it would be difficult to draft; it must have been very difficult to draft. I gather that over 2,000 claims have already been submitted. This is a new instrument for a very considerable and worthy purpose, the purpose of trying to make provision for those who have been deprived of compensation, mainly by the bankruptcy of employers. It also provides the possibility of the Secretary of State reconsidering cases within reasonable bounds. I am happy to be here to welcome this.
The long story of byssinosis is a bitter story, and the remedy is now coming at the time when the disease is, happily, disappearing. Any modern factory today is likely to be substantially free from byssinosis because the modern ventilating apparatus does not allow the lungs to become clogged with what is a vegetable, cotton dust and the associated muck in which the cotton frequently arrives in England. Although I doubt whether there will be a great many claims in respect of byssinosis, I do believe there are a substantial number of claims which are in difficulty in relation to mesothelioma.
I just wanted to ask the noble Earl one question: Whether, in view of the highly complex nature of the asbestos industry, in view of the fact that after a decision of the House of Lords largely in favour of 1594 workers about 10 years ago a factory closed down and in view of certain amalgamations, it will be easily possible for trade unions to be able to answer the vital question postulated in Section 2, the company having wholly ceased to carry on business. I should have thought that the Health and Safety Executive might be collecting a certain amount of information in relation to some of these matters which could be made available to bona fide inquirers. Subject to that, I thank the noble Earl very much for the courteous way this has been done, and for the considerate way in which the new Government has considered a measure first presented by the old one.
The Earl of GOWRIE
My Lords, I should like to thank both the noble Lord, Lord Wells-Pestell, and the noble Lord, Lord Hale, for their reception. Obviously in this sad area of industrial disability where people have worked hard and made their contribution and suffered accordingly, we are looking for the maximum continuity of policy possible. If I may give the pure point of information for which the noble Lord, Lord Hale, asked, it is in fact just under two-and-a-half thousand, 2,434, claims which have now been made under the Act, just under two thousand, 1,905, from sufferers, and 529 from dependants of deceased sufferers. I have a breakdown of information as to cotton industry, slate industry, pottery and the like which I can give to the noble Lord if he wishes.
In reference to the remarks made by the noble Lord, Lord Wells-Pestell, obviously the difficulty we have had with framing these regulations is trying to provide, within the limitations of a single payment to each individual, for a very wide variety of possible situations. Everyone's ailment has a different character and, of course, the individual conditions of those who suffer from the ailment may affect what is ultimately paid out. That is why the Secretary of State has perhaps rather peculiar and substantial powers to be just and equitable. The effect of the provisos in Regulation 7 will be that he will be enabled to determine the precise amount payable in substantially all the cases concerned. It seems to me that where there is the possibility of such individual variation, we must give some discretion to the Secretary of State; the 1595 object being to ensure that where certain information cannot be totally confirmed, but as to which there is no real doubt in common sense about the patient's case, the Secretary of State will not be precluded from making the payment in accordance with the tables; and that seems to us to be clearly right.
As in all questions where rather detailed payments are having to be tailored to individual cases, there are, as I have said, complexities involved. I should like to look at the points in detail made by the noble Lord, Lord Wells-Pestell, and the noble Lord, Lord Hale, in particular—who spoke at some length—and perhaps take them up with officials and see whether any modifications are necessary in the light of those remarks.
§ Lord WELLS-PESTELL
My Lords, I am obliged.
§ On Question, Motion agreed to.