In this short debate, I want to make three points. First, osteoarthritis of the knee is a painful condition. Miners who suffer from it are getting older and there is a need for a speedy scheme for processing their compensation. Secondly, and related to the first point, the National Coal Board and its successors knew from the 1950s that certain working conditions in coal mines caused the disease. Thirdly, I shall propose to the Minister a scheme structure that would reduce legal costs for both sides and, in particular, bring benefits to the sufferers of that painful disease.
The Minister is aware that in August 2008 the Industrial Injuries Advisory Council reported on osteoarthritis of the knee and recommended that it should be a prescribed disease in relation to working as an underground coal miner for 10 years or more in aggregate up to 1986, but that any service from that date onward should be specific to certain categories of work. The evidence shows that the risk of a miner developing osteoarthritis was more than double that for a member of the general population.
As a consequence of the IIAC decision, since 15 July 2008 miners have been able to claim an industrial injury disablement benefit award for the disability caused by the disease. I refer the Minister to some figures from the Department for Work and Pensions on the number of successful cases that there will be for industrial injury disablement awards. They suggest that the number is likely to be a little more than 10,000.
Several studies have been done on the development of osteoarthritis in miners. As the Minister will be aware, two significant British studies were done on osteoarthritis in coal miners in the 1950s, which showed that working underground was likely to result in the disease developing. A later study was done in Germany, and those three studies comprise the main evidence considered by the IIAC. I am using that information because it is pertinent to the point that I want to make to the Minister on how a particular scheme to deal with that compensation could be developed.
I accept that coal mining has changed dramatically since the 1950s. The NCB’s mechanisation programme had a positive impact on changing the profile of coal production in the industry. From the early 1980s, mechanical processes have been linked to create a semi-automated system of mining, but that was a transitional development, and during the stages of that mechanisation process miners were lifting heavier loads from a kneeling position than they had done in an earlier era.
The studies of the 1950s looked at the earlier era, which we might refer to as the hand-filled days, but the disease did not disappear when the hand-filled production process disappeared because the transition moved us to mechanisation and during that process miners lifted those heavier weights from kneeling positions.
The effect of that process was to create a common sight in mining communities: elderly retired miners either limping badly or walking with the aid of a stick. Many of them have had artificial knee joints fitted to assist their mobility. Indeed, a colleague here in the House, my hon. Friend the Member for Blyth Valley (Mr. Campbell), who was a coal miner before he entered this place, has been diagnosed with osteoarthritis and had one artificial knee joint fitted. He is waiting to be admitted to hospital to be fitted with a second joint, which gives an indication of how bad the disease can be.
When men suffering from the disease reach their 60s and 70s, which is the age most of them are, it becomes even more painful. That is why I believe that we cannot wait for a protracted legal process to conclude. Those men do not have a great deal of time left, so I suggest to the Minister that there is another way to move forward with the liability issue.
That brings me to the issue of dealing with that potential liability. I have no intention of getting into the arguments on the complexity of the liability, but I want to draw the Minister’s attention to the National Audit Office report, “Coal Health Compensation Schemes”, which was completed in 2007. Page 7 of that report sets out a table, “Lessons for the future”. The first point in that table states:
“When a potential new liability is identified”,
presumably by the Department,
“it must be monitored regularly and, taking account of how likely it is to come to fruition, sufficient action should be taken to manage the risks.”
I assume that that is being done.
I refer the Minister to the report by Stephen Boys Smith, a synopsis of which is provided in appendix eight of the NAO report. He was commissioned by the Department to review the coal health compensation schemes. One of his recommendations, as set out in the NAO report, is as follows:
“If the Government is ever in future faced with a comparable situation; either where it has to implement a court judgement imposing a liability to pay compensation, or where it believes it would face such a judgement if a legal case were completed; it should very carefully examine the alternative ways of proceeding.”
I suggest to the Minister that Stephen Boys Smith is pointing out that, where there is a potential liability, as in this case, which the Department will have examined closely along with the risks, the alternative to proceeding to court should be used. I shall point out in a few minutes how that might be done.
Stephen Boys Smith made certain recommendations to the Department, but it appears to be in a protracted legal battle. As the Minister is aware, the Department has spent around £6.5 million on legal advice for that case, and no doubt considerable amounts of money have been spent by the other side as well. It seems to me that we are moving towards a situation in which we will again spend lots of public money and ultimately accept that we must implement a scheme. I suggest to him that if that scheme is implemented and shaped by the courts, we will be in the same position that we were in with chronic obstructive pulmonary disease.
I congratulate my hon. Friend on securing this timely debate. He mentions the amount of money that has already been spent on litigation. May I suggest that the company that is doing the work for the Government is the same one that cost them £10 million in respect of chest diseases and more than £3.5 million in respect of vibration white finger, both of which cases were roundly defeated, yet the Government are still taking advice from those people? Their track record is 2-0 and looks likely to become 3-0. If we can come up with a scheme, it will help not only the miners, but the Government.
I am grateful to my hon. Friend for making that point, and I have no doubt that the Minister has taken it on board. As he knows, the COPD scheme came into being and started to be constructed following a High Court action in 1998. Here we are, 12 years after it began to be implemented, yet we have not made all the payments to claimants under the scheme. That gives an idea of how long it can take to deal with compensation. With the likely knee litigation, we do not have that time. That is the real reason why we need to look at implementation of a statutory no-fault liability scheme.
There are two other important issues that the Minister must balance before proceeding to court action. The first is the legal costs: as has been said, £6.5 million has already been spent, and the other side has spent a considerable amount as well. Bearing in mind that the DWP has estimated that the number who are likely to receive awards for industrial injury disablement benefit will be some 10,000, I suggest that we need to look at an alternative to spending a huge amount of money on legal costs.
There is an additional reason. The Minister must be aware that if he takes the case to court and to judgment, his range of options will be narrowed. In fact, what happened in the COPD case may well happen. His Department did not realise at the time that compensation would be opened up to the estates, and we could again have a situation where a case results in many more claims. As he is aware, two thirds of the 592,000 COPD claims were from estates. Like me, many of my colleagues do a Saturday surgery and find that, as we get to the tail end of the case, we are dealing with grandchildren who never saw their grandfather coming in to ask when their compensation payment would be made available. The Minister has to assess the possibility that his options will narrow if he goes to court.
We should look at a no-fault compensation scheme for miners’ knee that would make a lump-sum compensation payment to the miner or his widow quickly and without the input of lawyers. That could be done speedily using the expertise built up in the Minister’s Department and in the DWP’s IIDB—industrial injuries disablement benefit—scheme.
A statutory scheme could be devised that would not require the engagement of costly private medical services either, as happened under the COPD claim. Private companies provided medicals for people who were making claims, and the costs ran to a quite an amount. Just now, I cannot say how much, but the Minister will know that it was considerable. The basis of a scheme for miners’ knee could be the IIDB process. That could be the gateway, and I shall explain just how it could be done.
The Minister will know that the IIAC has set down the diagnostic criteria. They are in paragraph 71 of its August 2008 report, “Osteoarthritis of the knee in coal miners”. Criteria have been set down for the examination process, so we do not need the input of any kind of private medical service.
We would then move to a situation in which the IIDB scheme paid an award but also gave an assessment. Each man who received an award would get an assessment of his disability. I suggest that that could be the basis for a statutory no-fault compensation scheme. It would allow the Minister to ensure that a compensation payment was made only to the miner who had come through the industrial injuries disablement process, or to his widow. The payment would be relative to his age and his disability. A table is all that would be required, so the compensation scheme would be transparent.
Lawyers from both sides may be required to sit down with orthopaedic consultants to draw up the table, which would run from 0 to 100 per cent. The miner’s age at the opposite side and his degree of disability would relate directly to a sum of compensation that had been devised independently by his people sitting down with lawyers from the other side, both taking advice from orthopaedic consultants.
Such a scheme would be much preferred to a court scheme, because the court scheme, once shaped, would impose costs on the Department, as the Minister knows. There is no doubt that lawyers would be involved, as they were involved in COPD and vibration white finger, in filling in forms and, at the end of the day, collecting money for doing that. In many instances under the COPD scheme, the solicitor received a bigger award for completing the form than did the man on whose behalf he completed it. We do not want that to occur again.
I urge the Minister to move speedily to ditch his plans for a court battle and to introduce a statutory scheme that would benefit elderly miners who do not have a great deal of time left. Such a scheme would be less of a drag on the public purse. I urge him to move as suggested in the Stephen Boys Smith report and to introduce a statutory scheme for compensation for miners’ knee.
I congratulate my hon. Friend the Member for Barnsley, West and Penistone (Mr. Clapham) on securing the debate. I praise him for tenaciously and astutely arguing the case for miners and the mining industry as he does. I personally admire him for his fortitude and determination. He and I have discussed this issue both outside and inside this Chamber.
There cannot be many Ministers of the Crown who can say this: I have stood erect on the coal faces at Daw Mill in Warwickshire and Lea Hall in Staffordshire and seen the huge, magnificent, modern machinery that comes along and cuts out a whole line of the face; then, automatically, the props are moved forward to protect miners as they advance to clear the coal away. I have crawled on my hands and knees to the front of mines such as Newdigate in Warwickshire, Littleton at Cannock and Hem Heath in Stoke-on-Trent and seen miners in extremely difficult situations and constrained spaces working to get coal from small coal faces. I very much appreciate what my hon. Friend says about the pressure on their limbs—in this case, their knees.
My hon. Friend will appreciate that, in responding to this debate, I have to be mindful of the matters he raises that are subject to current legal proceedings. I am therefore constrained to a considerable extent in what I can say in response. I am, of course, fully aware of the concerns that he and other hon. Members who are here to support his argument have raised and their passionate belief that individuals involved should be compensated quickly and in a way that avoids the costs—particularly the solicitors’ costs—that we saw in previous compensation schemes. I understand and share those concerns, but the issue is not straightforward. It is important that we take fully into account the experiences of the past 10 years of the vibration white finger and chronic obstructive pulmonary disease respiratory compensation schemes, which are now, I am pleased to report, largely concluded; and, as my hon. Friend says, the numerous reviews of the Government’s handling of those schemes, including most recently those conducted by the National Audit Office and the Public Accounts Committee.
Before dealing with the details raised today, as far as I am able to do so, I want first to take the opportunity to put on the record the success of the VWF and COPD schemes, which are the biggest personal injury schemes in British legal history. More than 760,000 claims have resulted in more than £4 billion in compensation being paid to former miners and their families. The VWF scheme has been completed and brought to a conclusion in the High Court, and the respiratory scheme for COPD is almost complete. Fewer than 240 COPD claims have yet to receive an offer of compensation and we expect to settle all the remaining claims in this calendar year, although some claims may take longer if, for example, there is the additional complication of protected party status.
Those schemes were set up once the liability of British Coal had been established by the courts. They were designed to ensure that miners and their families received the compensation to which they might reasonably have been entitled had they pursued their claim in common law. I believe that that objective has been met and that the schemes have been a huge success.
My hon. Friend suggests that there should be a scheme for no-fault compensation. He knows there was previously a scheme like that in the industry for pneumoconiosis among coal workers. The National Union of Mineworkers and other mining unions successfully negotiated with the employer, the National Coal Board, for that scheme, which my hon. Friend says could be emulated today. On the basis that those arrangements provided a clear, practicable way forward then, his argument is understandable, but things have changed a lot in the 36 years since that scheme was negotiated in the industry.
First, negotiations took place when the unions were in a position to present themselves as negotiating on behalf of all miners and their families. Today, that is clearly no longer so. Secondly, that agreement was negotiated in the context that pneumoconiosis affects mainly coal miners. The reality is that osteoarthritis of the knee is very different: it affects many people in the population in many different jobs and is caused by many different factors, including family history and a variety of non-employment-related factors. On that basis, it is much more complex than pneumoconiosis.
I refer the Minister to the IIAC report, which prescribes the disease purely because the risk of a miner developing it is twice that of a member of the general population. There is not that much difference between the pneumoconiosis scheme and the one that I am proposing. If he is afraid that such a scheme might lead to two payments if a person goes on to take out a civil action, he could introduce a caveat whereby if a person decides to take a civil action after taking compensation payment from the scheme, there could be a clawback, as happens under the mesothelioma scheme.
The danger is not only that somebody has two bites at the cherry, but that other people who are no part of the scheme may still come in with litigation for the liability at common law.
Thirdly, the previous scheme was negotiated in an era when the legal profession, and more particularly the world of personal injury litigation, was very different from today’s. In the world of no win, no fee arrangements, any admissions made are likely to generate further litigation, even where a no-liability agreement for some might at first sight appear reasonable. For example, my hon. Friend mentioned the estates of miners. Putting aside the question why I should think it fair to exclude a miner’s claim when the miner has died and the estate wants to carry on claiming, if I negotiated an agreement that excluded them, there would be no reason why they should feel excluded from taking a case to court and still proving the liability at common law. Nothing would be gained, from my point of view, by making the agreement.
Nevertheless, let me say that the costs of the coal workers pneumoconiosis scheme did, and still do, prove significant. More than 91,000 claims have been made under that scheme since 1974, of which more than 83,000 have been successful in securing compensation. To date more than £154 million has been paid in compensation under that scheme. Put simply, we need to be certain of the reasons for reaching decisions. In my view, progression of the current litigation is the best way to achieve that clarity.
In our handling of these difficult issues, it is always important to remember that the Government are effectively standing in the shoes of the former British Coal Corporation as the employer. For compensation to be payable, it must be established that British Coal was legally negligent and/or in breach of statutory duty as an employer, and that the injuries suffered by their employees were caused by that negligence or breach. Furthermore, the Secretary of State’s powers under the Coal Industry Act 1994 to pay money out in respect of the liabilities of the former British Coal are dependent upon such liability being established.
My hon. Friend the Member for Barnsley, West and Penistone mentioned the cost of litigation and my hon. Friend the Member for Blaydon (Mr. Anderson) asked questions about the fees paid to solicitors. I am alive to those issues. The Department is fully committed to applying the lessons from the experience of the VWF and COPD compensation schemes, based on our operational experience and the reviews conducted by the NAO and the PAC.
The Minister will not be surprised that I am disappointed by what he has said so far. It is not just about the costs of litigation. What about the impacts on the public purse? He mentioned reports from the NAO. The Legal Services Commission has also done a massive amount of work. There has been a huge cost to the public purse in addition to the legal implications the Minister has advanced, including payments to solicitors and barristers. That must surely be weighed in the balance against the sensible scheme advanced by my hon. Friend the Member for Barnsley, West and Penistone.
I understand that point. My hon. Friend the Member for Barnsley, West and Penistone mentioned the costs and the amount that we have paid to lawyers already for litigation on osteoarthritis of the knee. He is right. We have had to pay lawyers, particularly for document disclosure. He knows that disclosure is an important part of the process of establishing whether there is liability.
One key lesson learned by the Department in conducting the litigation is that we must understand the scale of potential claims for the compensation. Our estimates in the past for VWF and COPD were much lower than the amounts that were subsequently paid. My hon. Friend mentioned on a number of occasions some 10,000 claims for osteoarthritis of the knee. So far, under the group litigation order, there are about 900 claimants, and the claimants’ lawyers have mentioned to us another 1,000 claims. Putting the matter in a broader context, we handled more than 170,000 claims under the VWF scheme and more than 590,000 for COPD. Collectively, that totals more than 750,000 claims.
Let us draw on the experience of the DWP. Following the introduction of the industrial injuries disablement benefit for miner’s knee last year there have been more than 33,500 claims for the benefit to date. Claims are arriving now at the rate of 300 a week. I am pleased to report that more than 20,000 cases have been assessed and of those 9,234 former miners have already received payments of benefit. In addition, a further 6,085 have received an assessment of disablement, although their condition was not assessed as severe enough to give rise to a payment of benefit.
I welcomed the Department’s decision to pay industrial injury disablement benefit to miners suffering from osteoarthritis of the knee, following on from the recommendations of the Industrial Injuries Advisory Council. My hon. Friend was a champion of that cause. However, the decision to introduce entitlement to benefit payments raises different issues to those involved in the litigation against the Department as the inheritor of the liabilities of the former British Coal Corporation. In particular, the IIAC report, which triggered the entitlement to claim benefits for miners suffering from osteoarthritis, fundamentally does not directly address the key issues in the litigation that the Department is defending, including establishing knowledge, taking reasonably appropriate preventive steps as the employer based on that knowledge, and the apportionment of other contributory factors, such as family history and other health factors.
It is important to recognise that recent medical knowledge now firmly demonstrates that osteoarthritis is caused by a range of factors, including family genetics and obesity, as well as employment-related factors. In my view it is therefore vital that, where such large amounts of taxpayers’ money may be at stake if compensation is to be paid, particularly in the current economic climate, liability is properly established through the court process. In concluding, I assure my hon. Friend—