Mesothelioma Lump Sum Payments (Conditions and Amounts) (Amendment) Regulations 2023

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Mesothelioma Lump Sum Payments (Conditions and Amounts) (Amendment) Regulations 2023.

My Lords, I will speak also to the Pneumoconiosis etc. (Workers’ Compensation) (Payment of Claims) (Amendment) Regulations 2023. I am pleased to introduce these statutory instruments, which were laid before the House on 12 January 2023. These 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 established by the Child Maintenance and Other Payments Act 2008.

As many noble Lords will be aware, these two schemes are not included in the main social security benefits uprating procedure and their uprating is not a statutory requirement. However, through these statutory instruments, we will increase the amounts payable by the September 2022 consumer prices index of 10.1%. These new amounts will be paid to those who satisfy all the conditions of entitlement for the first time on or after 1 April 2023.

Many noble Lords will be aware of friends and close colleagues from your Lordships’ House who have lost their lives as a result of these dreadful diseases. We must remember the great impact that these diseases have on people and their families. The Government recognise the tremendous suffering that diseases such as mesothelioma and pneumoconiosis cause to those who are diagnosed. The conditions covered by these schemes can be debilitating and life limiting and often involve very long latency periods, with symptoms starting to show many years, often many decades, after exposure. Mesothelioma, for example, is an aggressive type of cancer strongly associated with exposure to asbestos and is usually terminal. Life expectancy from diagnosis is poor.

I will now outline the purpose of the two schemes we are debating. The Pneumoconiosis etc. (Workers’ Compensation) Act 1979, which, for simplicity, I shall refer to as the 1979 scheme, provides a single lump sum compensation payment to individuals who suffer from one of the prescribed diseases covered by the scheme, including mesothelioma, pneumoconiosis and three other dust-related respiratory diseases. This scheme was designed to cover people who are unable to claim damages from employers because they have gone out of business and who have not brought any action against another party for damages. To be eligible, a claimant must be in receipt of industrial injuries disablement benefit for a disease covered by the 1979 scheme.

My Lords, I thank the noble Viscount for the way in which he introduced these regulations. Just before we began, a group of us were recalling how we have discussed this year in, year out. We were also recalling some of his illustrious predecessors and others in all parts of the House who contributed to some of the changes that he has referred to.

I am thinking particularly of the late Lord Newton of Braintree, who was a Secretary of State. He was a great supporter when I moved amendments in your Lordships’ House seeking to change the Criminal Justice Bill and to bring about what then became a full-scale Act of Parliament, the Mesothelioma Act. The noble Lord, Lord Freud, was decisive in making that happen. He also once shared in this Committee how his father had died of mesothelioma. On this side of the Committee, I think of Lord McKenzie of Luton, who died at the end of 2021. It will seem a strange debate without his voice. His attention to granular detail was extraordinary and his knowledge of pneumoconiosis and mesothelioma admirable, demonstrating the very best of your Lordships’ House.

The noble Viscount referred to the removal of asbestos from schools, which I was very pleased to hear about. It has been a recurring theme that we have raised in these Committees over the years. On a hopeful note, he said that mesothelioma might be plateauing. I will come back to the data a bit later. He also talked about advances in medical treatments. He will know that the Mesothelioma Act was specifically about providing government funding toward the work of the British Lung Foundation and others on the causes and consequences of mesothelioma and on looking for cures. Can the noble Viscount tell us more about whether that funding is being sustained and what progress is being made in that area?

One of the things that has struck me is the number of noble Lords who have shared personal stories of loved ones, family or friends who have died of this disease, which, over the distance, has claimed more than 30,000 lives. That is the same number of deaths still estimated to be caused globally every year. As I have done on previous occasions, I pay tribute to John Flanagan and the Liverpool-based charity, the Merseyside Asbestos Victims Support Group, for keeping a candle lit for all those afflicted by mesothelioma. In 2020, I noted that people in Liverpool are more than 18% more likely to die of mesothelioma. I know that we will hear from my noble friend Lord Wigley and the noble Lord, Lord Jones, during our proceedings; we have heard from them previously about the situation in Wales. However, this disease is no respecter of geographical boundaries or class. Indeed, the noble Lord, Lord Allan of Hallam, and I were discussing this just before the Committee met. We were talking about some of those who have talked about the loss of loved ones.

Mr Flanagan has asked me particularly to ask the Minister what progress, if any, is being made in connection with the equalisation of government lump sum payment schemes. He says that the current arrangements result in

“the short changing, in the main, of widows who are in the predicament of having lost a loved one and being told by government that they must be adversely treated in comparison with other widows who have suffered the same loss”.

So, as much as I welcome the Minister telling us that there will be an increase in the total amounts of money available this year—I will come back to that in a moment—this is nevertheless about equalisation with other schemes. Why is there a discrepancy between how we treat some widows and others?

I have some other requests for the Minister. A request has been made by the department to insurers and personal injury lawyers involved in the review of the diffuse mesothelioma payment scheme—let us call it DMPS—compensation tariff to provide input and data. I know that some lawyers involved in this would like the department to recognise that undertaking this is a significant task that has consumed large amounts of time from the lawyers working in those practices. They have asked for clarification of the methodology to be employed when analysing the data. The request from the department refers to tariff payments being established based on average compensation figures from civil claims. In response, lawyers say that as stakeholders they believe they are entitled to clarification of the methodology, particularly due to the delay in implementing the review. They also say they have overarching concerns in relation to a number of aspects of the scheme and the current remit of the legislation. They argue, and I agree, that those questions should be considered as part of what is now the overdue DMPS tariff review. Perhaps the Minister can tell us where we are up to with that review.

The stated objectives of the scheme include a commitment that payments will rise in line with the consumer prices index each year, but, as the Government have previously stated,

“if the level of civil compensation also changes, we need to look again at the amount of the scheme payment to see if it should be changed in line with that of civil compensation”.—[Official Report, 17/7/13; col. 764.]

Is it still the Government’s intention to do that? What progress are we making in that regard? I would like the Minister to confirm that these commitments made to mesothelioma victims will be fulfilled.

The Secretary of State gave an undertaking to Parliament that the tariff would be reviewed in 2018-19, but that was not done. There was a stated commitment that payments would rise in line with the CPI, but again that has not been done. There is widespread concern and disappointment at the failure to implement a review and maintain the scheme payments in accordance with the undertakings given. That delay has resulted in DMPS applicants being undercompensated for several years. The Secretary of State should provide reasons for that failure and give, if not an apology, at least an explanation to mesothelioma victims and their families for what is an unacceptable delay.

The limited cost provisions demonstrate that there are clear failings with access to justice and legal representation. The position in relation to legal costs was the reason I became interested and involved in this issue in the first place, when there was an attempt to remove all legal aid for people who had contracted mesothelioma; thanks to your Lordships, that did not happen. I wonder whether this will be considered as part of the terms of reference of any review.

Will it look at the exclusion of mesothelioma sufferers who have suffered para-occupational exposure? That might include the likes of victims who were exposed to asbestos as a result of contact with family members whose clothing—I gave an example before—and persons were contaminated with asbestos fibres or individuals who have suffered from environmental asbestos exposure, for example through living in proximity to industrial operations liberating asbestos fibres. There are also clear inconsistencies in compensation levels, payment of medical treatment costs, access to justice, limitation, deduction of state benefits and eligible classes of claimants. Will they be considered in the review?

Finally, it appears that the numbers of claims for mesothelioma fell during the pandemic period—the Minister referred to this. Various reasons for this might include fewer diagnoses being made, death certificates that recorded other conditions as the cause of death rather than mesothelioma, or potential problems with access to justice. All those may well distort data and favour an average tariff based on six years of data as being weighted towards older, lower settlement levels.

Although there has been some plateauing in the figures, as the Minister told us, we know that more than 5,000 asbestos-related disease deaths occur each year, with 2,544 mesothelioma deaths in Great Britain in 2020. There was a rise that year compared with 2019, but it was similar to the average of 2,523 deaths per year over the previous eight years. Put another way, there are more than seven deaths caused by mesothelioma every single day. Perhaps the Minister, when he comes to reply, can reassure us that we are not taking our eyes off this killer disease. Can he tell us what contribution His Majesty’s Government are currently making on the causes, and hopefully the cures, in combating this terrible disease?