Mesothelioma Lump Sum Payments (Conditions and Amounts) (Amendment) Regulations 2019

Motion to Approve

Moved by

That the draft Regulations laid before the House on 15 January be approved.

My Lords, I will speak also to the Pneumoconiosis etc. (Workers’ Compensation) (Payment of Claims) (Amendment) Regulations 2019. I am required to confirm to noble Lords that these provisions are compatible with the European Convention on Human Rights and I am happy so to do.

These statutory instruments will increase the value of lump-sum awards payable under the Pneumoconiosis etc. (Workers’ Compensation) Act 1979 and the diffuse mesothelioma scheme, which was set up by the Child Maintenance and Other Payments Act 2008. These two schemes stand apart from the main social security benefits uprating procedure. However, through these statutory instruments we will increase the amounts payable by the September 2018 consumer prices index rate of 2.4%. This is the same rate that is being applied to industrial injuries disablement benefit and certain other disability benefits, and under the main social security uprating provisions. These new amounts will be paid to those who satisfy all the conditions of entitlement, for the first time, on or after 1 April 2019.

Turning to the purpose of the lump-sum schemes, the Government recognise the great suffering of individuals and their families as a result of exposure to asbestos or certain other forms of dust. They may be unable to bring a successful claim for civil damages, due mainly to the long latency period of their condition, but can still claim compensation through these schemes. Although improved health and safety procedures have restricted the use of asbestos and provided a safer environment for its handling, the legacy of its common use is still with us. That is why we are ensuring that financial compensation from these schemes is available to those affected.

I will briefly summarise the specific purpose of the two compensation schemes. The Pneumoconiosis etc. (Workers’ Compensation) Act 1979—which for simplicity I shall refer to as the 1979 Act scheme—provides a lump-sum compensation payment to individuals who have one of five dust-related respiratory diseases covered by the scheme, and who are unable to claim damages from employers which have gone out of business and have not brought any action against another party for damages. The five diseases covered by the 1979 Act scheme are: diffuse mesothelioma, bilateral diffuse pleural thickening, pneumoconiosis, byssinosis, and primary carcinoma of the lung, if accompanied by asbestosis or bilateral diffuse pleural thickening. The 2008 mesothelioma lump-sum payments scheme, which I will refer to as the 2008 scheme, was introduced to provide compensation to people who contracted diffuse mesothelioma but were unable to claim compensation under the 1979 Act because, for example, they were self-employed or their exposure to asbestos was not due to their work. But the 2008 scheme, as many noble Lords know, allows payments to be made quickly to people with diffuse mesothelioma at their time of greatest need. Under both schemes, a claim can be made by a dependant if the person with the disease has died before being able to make a claim.

My Lords, I thank the Minister for explaining these two important orders. I think this is her first time speaking on these matters. I do not know whether it is the first time on the Floor of Chamber but it may be, because these orders are usually taken in Grand Committee—I know that the noble Lord, Lord Jones, was keen that they should be debated here. I am sure the whole House welcomes the uprating that she announced, but has the time not come for this to be automatic rather than at the discretion of the Government, as there is no way the schemes will be wound up in the next few years?

My first time speaking on the mesothelioma order was 11 years ago, when I learned about its long latency period and the fact that some of the people affected, such as family members, did not work directly in industrial processes using asbestos. Subsequently, I knew a man who was diagnosed when he was over 80, his condition probably a result of national service in the Navy.

This was to lead me to ask the Minister about much-needed and hitherto neglected research, but she has spoken about that and I am glad that we have learned a lot more about it. I think a lung health summit was held last year with the British Lung Foundation, the Union of Democratic Mineworkers, the NHS and MPs. I am also glad the NHS long-term plan recognises the objective of improving outcomes for people with respiratory diseases.

We do not want to add to the number of people diagnosed with this disease, so perhaps the Minister will also tell us what work is going on to make sure that any asbestos in schools and hospitals is rigorously monitored, if it cannot be removed. I expect that this is where the Health and Safety Executive comes into its own, a body which has often been unfairly vilified for just doing its job. I know that it has had to cope with cuts to its budget, but I hope that it is able to be on top of this issue.

My Lords, I had the privilege of chairing the mesothelioma oversight committee of the last-resort scheme. I thank the Minister for both her presentation and the welcome change in dealing with research, which a lot of us were concerned about for a couple of years when it did not appear to be linked. We are pleased that the DWP is now working closely with other departments. Can the Minister indicate exactly how much was spent on a cross-departmental basis on research in the last 12 months to give us an idea of the scale of that improvement?

I want also to thank the staff in Minister’s arm’s-length branch who give my committee enormous support in dealing with stories of unimaginable pain and tragedy. Although one has to try to get some distance, it is important we all place on record that this is not some dry statutory instrument; it is about people’s lives and deaths. My own sister-in-law died of this disease some years ago. We still do not know whether it was as a result of pushing a trolley through the basement of the Scunthorpe hospital where she worked or of washing her husband’s overalls from the steelworks where he worked. Also, a good friend of mine died less than a year ago. I had known him for 40 years; he worked in local government. You would think, “Where on earth would he catch it in local government?” He was a student before he started his local government career, working for Cape Asbestos for 12 months.

I think it has been mentioned already that it is not always the traditional industries. There are jewellery repair workers; there are stable lads; there are all sorts of areas that people do not expect. It is important when we come across similar issues to try to pre-empt them and not allow this to happen again.

Finally—the Minister has pre-empted this issue and I know that the noble Lord, Lord Alton, will raise it, but I am going to be his John the Baptist and hope that I do not share the same fate—the forum for the victims and the victim support group have been trying for nine years now to get some equality between in-life payments and dependency payments. I know that the Minister has indicated that the Government have thought about this and decided that they should not do anything about it at this stage, but it is time to seek equalisation between the sums paid to asbestos victims who claim while alive and those paid to dependants, usually widows, which are much lower for pneumoconiosis. This disparity affects women in particular and has stagnated for quite a long time. Failing any change of heart, will the Minister agree to meet some of us to discuss any possibility for more flexibility in considering those requests for equalisation?

My Lords, if the noble Baroness, Lady Donaghy, does not mind, I would rather change the metaphor and say that I am very pleased to be part of the infantry; she is a very good general in this case. The noble Baroness, Lady Thomas of Winchester, made her case admirably, too. I am grateful to the Minister for the way in which she introduced the orders.

I return to an issue that I have raised often in your Lordships House: the harrowing and lethal effects of mesothelioma, something which unites all of us in all parts of the House. Many of us in the Chamber today have been involved in the fight against mesothelioma for many years and I am pleased to see this important issue again being debated in your Lordships’ House.

I wholeheartedly support the uprating of the lump sum payments in line with inflation. It is a matter of compassion, of justice—I will return to that issue—and of equalisation. In that last respect, I was disappointed by one thing that the Minister said, although I rather anticipated that she would say it—I shall return to that matter, too.

As the Minister told us, mesothelioma is an invasive type of cancer caused by prior exposure to asbestos. It grows in the pleural membrane, which lines the outside of the lung and the inside of the chest. Less commonly, it can also affect a similar lining around the abdomen or heart. There is currently no cure and mesothelioma patients often have a short life expectancy and experience complex, debilitating symptoms. I vividly remember when I was a Member of House of Commons, representing an inner-city area of Liverpool, constituents coming to see me once there had been a diagnosis and then meeting the widow only weeks later, their loved one having died.

The UK has the highest rate of the disease in the world. Mortality rates have more than quadrupled over the past 30 years. It is estimated that around 2,400 people die of the disease every year and that, over the next 30 years, around 60,000 people will die of mesothelioma in the United Kingdom unless new treatments are found.

The disparity between payments is partly the result of the difference in assessment of disablement and age of the sufferer. In-life payments under the 1979 Act are assessed at a maximum of 100% disablement. Dependency payments are assessed at 50% or over. In-life payments under the 1979 Act are paid on a rising scale up to the age of 77 and over. Dependency payments are paid on a rising scale up to the age of 67 and over. Most dependency payments are made to women—widows of mesothelioma sufferers who are doubly disadvantaged by low dependency payments. As the average age of sufferers is approximately 77, many widows, who traditionally may not have a full record of employment, may have very poor pensions, a point alluded to in our discussions on the earlier orders. Personal injury compensation payments to dependants are higher than compensation payments to sufferers paid in life.

The law recognises the financial loss incurred by widows of mesothelioma sufferers. The number of dependency claims compared to in-life claims is very small. In 2017 under the 2008 Act, there were 20 dependency payments and 370 in-life payments. In that year, under the 1979 Act, there were 240 dependency payments and 2,770 in-life payments. As a percentage of total payments, dependency payments make up 8.2%. In 2017, the Asbestos Victims Support Groups Forum estimated that the percentage was approximately 10%. One reason for the decline in dependency payments is the success of the Employers’ Liability Tracing Office in identifying employers’ liability insurance. This has resulted in an increase in the amount of benefit and lump sum payments recovered by the Government. In 2017, the Asbestos Victims Support Groups Forum estimated that the cost of equalising payments would be approximately £1.5 million. In the same year, the Government estimated the cost at £2 million. Yet in 2018, the Government estimated the cost of equalising payments to be £5 million. Can the Minister explain why this estimate has more than doubled and how that figure of £5 million was reached?

It was in 2010 that the noble Lord, Lord McKenzie, the then Minister, to whom I pay particular tribute, committed the Government to equalising payments and went on to do so. In that year, he increased dependency payments to commence a gradual process of equalising payments. Nothing has been done since the noble Lord did that back in 2010. Manifestly, there is an unjustifiable disparity between dependency and in-life payments. The number of dependency payments is a fraction of total payments, just 8.2%. The cost of equalising payments is modest: between £1.5 million and £2 million. Meanwhile, it is worth noting that the Government have benefited from increased benefits and lump sum recoveries as a result of the stimulus to the Employers’ Liability Tracing Office in finding employment liability insurers once the Diffuse Mesothelioma Payment Scheme made employers’ liability insurers responsible for untraced insurance. Furthermore, the Government have recovered millions in benefits and lump sum recoveries as a result of the Diffuse Mesothelioma Payment Scheme payments which incur such recoveries. The millions of pounds in recoveries dwarf the modest cost of equalising the payments.

So I welcome the Government’s decision to accept their duty to honour the previous Government’s commitment to equalise payments. However, successive Ministers have excused themselves in the manner of the noble Lord, Lord Henley, who said:

“However, we do not intend to equalise payments this year. Instead, we will continue to keep this matter under review and consider equalisation, once resources allow”.—[Official Report, 28/2/17; col. GC 193.]

Can the Minister, when she comes to reply, tell us when that elusive date might finally be reached?

I have two other brief questions for the Minister, of which I have given her notice. I sent her an email last night; I hope it arrived. During the passage of the Mesothelioma Bill, the noble Lord, Lord Freud, gave a commitment to increase DMPS payments in line with CPI. Despite his commitment, this has not been done. Would the Minister explain why the commitment of the noble Lord, Lord Freud, to implement annual CPI increases, at a time when it was already known that the scheme would not make 100% awards, has not been honoured since the establishment of the DMPS?

My final point, alluded to a moment ago by the noble Baroness, Lady Donaghy, is on the position of people in the Armed Forces and those affected at a step’s remove, such as those who might have been washing overalls. I recall, in some of the debates I referred to earlier, that the noble Lord, Lord McNally, movingly described how his own sister had died through washing her husband’s overalls after he came home from the factory. The MoD mesothelioma scheme—to which the noble Lord, Lord West of Spithead, also referred in previous debates—pays lump sum compensation in lieu of a war disablement pension to veterans exposed to asbestos while serving in the Armed Forces. As the noble Baroness, Lady Thomas, said, there has been little research on why these things occur in the Armed Forces. Why have we not increased payments since the scheme’s inception in 2016? Do the Government have any plans to increase the level of payments made under the MoD scheme? If not, why not?

My Lords, I am delighted to follow the noble Lord, Lord Alton, and will take advantage of the opportunity to pay tribute to him for the immense work on this matter that he has undertaken in recent years. I too welcome the uprating. On the points raised by the noble Lord, I agree entirely that research should be undertaken. But we should also look at all possible ways to eliminate the causes of asbestos-related diseases.

We are aware of the incidence of asbestos in schools: three-quarters of schools in the United Kingdom have asbestos in them and, every year, some teachers die as a result of asbestos-related diseases. I wonder how many perhaps unidentified children have been affected by this. I do not know how much research has been done on this, but clearly anything that can be done to avoid the disease is better than a cure.

None the less, I welcome the fact that some £130 million has been paid since 2014 in compensation to about 1,000 sufferers—about £40 million of this has come from the insurance industry. But I take very much to heart the point made by the noble Lord, Lord Alton, that research is vital in these areas. The other sphere that could do with more research is MoD buildings. A number of them have been affected by asbestos, and families of servicemen have been hit by the disease.

I move on to the pneumoconiosis order, which I also welcome very much. The circumstances in which we are discussing this are so similar to those in 1979, when the original Act went through. I suspect that I am one of the few people in the Chamber who was involved at that time. There was a striking similarity—a Government without a majority striking a deal with a small party to get this through—and I was so pleased to be in the right place at the right time to help with it. The 40th anniversary reminds us of the tremendous contributions that have been made by this Act—not only to the slate-quarrying community, whose lobbying brought about the Act, but to a number of other workers in industries such as cotton and in kiln-related work, who were also able to get compensation.