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Mesothelioma Lump Sum Payments (Conditions and Amounts) Regulations 2008

Volume 703: debated on Monday 7 July 2008

rose to move, That the draft regulations laid before the House on 23 June be approved.

The noble Lord said: My Lords, it is a requirement that I confirm to the House that these provisions are compatible with the European Convention on Human Rights. I am happy to do so.

These regulations are made under Part 4 of the Child Maintenance and Other Payments Act 2008, and they provide the conditions that must apply before a lump-sum payment under the mesothelioma scheme 2008 can be awarded.

During the debate in Grand Committee on the Child Maintenance and Other Payments Bill, the noble Lord, Lord Skelmersdale, was keen that we debate the regulations coming out of what was then Clause 44, dealing with the conditions of entitlement, as well as having a debate on Clause 43, dealing with lump-sum payments, which the Bill already provided for. The debate on these regulations deals with both lump-sum payments and conditions of entitlement.

The Pneumoconiosis etc. (Workers’ Compensation) Act 1979 currently provides lump-sum compensation payments to sufferers of certain dust-related diseases, or their dependants, who are unable to pursue civil action because their former employers have ceased to carry on business. Mesothelioma is one of the diseases covered by the 1979 Act; it is a fatal disease caused by exposure to asbestos. It is a sad fact that it is now the most common cause of work-related death. It is estimated that one out of every 100 men born between 1940 and 1950 will die of the disease.

Some sufferers of mesothelioma are not entitled to a lump-sum payment under the 1979 Act because, for instance, they were not directly exposed to asbestos in the workplace but were exposed through a relative who worked with asbestos. Part 4 of the Child Maintenance and Other Payments Act 2008 introduces a new scheme that breaks the link to workplace exposure to asbestos, and provides up-front financial support within around six weeks to those people who are not currently eligible for help from the Government.

The amount of money that will be paid as a lump sum under the new scheme to a person with mesothelioma is set out in Regulation 5 and table 1 in the schedule to these regulations. The amount paid will vary for different people, based on the age at which they were diagnosed with the disease. Those diagnosed earlier in life will receive more. It is estimated that up to 600 people who do not currently receive help from the Government will receive, on average, £10,000 each during the first two years of operation of the new scheme.

While no amount of money will ever compensate individuals and families for the suffering and loss caused by mesothelioma, those who are suffering deserve some form of monetary compensation. It is essential that the sufferer should receive some level of compensation before it is too late. That is why we will pay more to sufferers in life, to encourage them to claim in life. A claim can, however, be made by dependants after the death of the person with mesothelioma if that person did not make a claim in life. Regulation 5 and table 2 in the schedule provide for those payments. The amount awarded to a dependant depends on the age of their relative at the time of their death from mesothelioma.

Regulation 4 makes it a condition of entitlement to a lump-sum payment that a person must have been exposed to asbestos in the UK. It is not right to extend responsibilities to those who were exposed abroad only, with different work practices and regulatory regimes for asbestos handling.

The Act specifies that if a person receives certain payments from elsewhere for their mesothelioma, they will not qualify for a payment under the 2008 Act. Regulation 2 specifies further payments from elsewhere that, if applicable, will mean that a person is not entitled to a lump-sum payment from the new mesothelioma scheme. It is right that people are not compensated twice for the same condition so, if they have received another payment, they will not receive one from the 2008 Act. I should clarify, however, that if a lump-sum payment under the new mesothelioma scheme, or the 1979 Act, is made in error and is liable to be made, Regulation 3 provides that that erroneous payment will not prevent a second award of a lump-sum payment to which a person may be properly entitled.

For the sake of completeness, I should add that if a lump-sum payment is made under the new mesothelioma scheme and it is subsequently discovered that a higher payment under the 1979 Act was appropriate, Regulation 6 provides for a balancing payment to be made so that overall the person receives the higher amount.

As noble Lords will know, the scheme is self-financing. It is being financed by recovering payments made under the 1979 Act and, eventually, payments made under the new 2008 Act from any civil damages that may be awarded later. That device also means that people are not compensated twice for the same condition but, in addition, uniquely provides the funding for the much-needed scheme. Because the 2008 Act is self-financing, the level of payments for the first two years will be what can be afforded out of the recoveries from civil damages. We estimate that by the third year of the operation of the 2008 Act, we will be making payments at the same level as those of the 1979 Act. Once that happens, I am happy to say that the level of payments will then be uprated in line with those of the 1979 Act. A person with mesothelioma will then receive exactly the same amount, whether they receive it from the 1979 Act or the 2008 Act.

Overall, the regulations provide for the scheme to be as simple as possible: simple for people to understand, simple to make a claim, and simple for administrators so payments can be made within six weeks of a claim being made. Lung cancer nurse specialists across the country have been sent copies of our leaflet Help and Advice for People with Mesothelioma, which we have asked them to give to people newly diagnosed with the disease. The leaflet gives advice on claiming help from the Department for Work and Pensions as well as claiming compensation from employers. To receive a payment from the DWP, a person must complete an application form and send proof of a diagnosis of diffuse mesothelioma. Provided that the person was exposed to asbestos in the UK and they have not already received a payment from elsewhere in respect of their mesothelioma, they will receive a payment.

I am sure we all agree that no amount of money will ever compensate these sufferers or their families. However, the regulations will help us ensure that people receive a lump-sum payment quickly and, wherever possible, in life. I commend the regulations to noble Lords and ask approval to implement them.

Moved, That the draft regulations laid before the House on 23 June be approved. 23rd report from the Joint Committee on Statutory Instruments.—(Lord McKenzie of Luton.)

My Lords, the House will be most grateful to the Minister for introducing the order so fully and caringly. I accept his original implied criticism that I brought this debate upon myself and upon the House. I would add, though, that I have had more than a little help from around your Lordships’ House in so doing.

Mesothelioma is, as he almost said, a particularly horrible form of cancer, almost invariably caused by the inhalation of asbestos fibres. It has been compensated for, if necessary by the state, for many years under the Pneumoconiosis etc. (Workers’ Compensation) Act 1979, which, through annual uprating orders, has provided a certain level of compensation to sufferers of certain dust-related diseases who are unable to pursue a civil claim because their former employers have gone out of business. Clearly, it would be quite wrong for such people to receive compensation through the courts from insurance companies, which remain liable for the years in which premiums are paid, even though that may no longer be paid at the time of the claim. At least, I believe that to be the case, and I should be grateful if the Minister would confirm this. Whether I am right or wrong, double compensation was prevented by the Social Security (Recovery of Benefits) Act 1997.

More recently, as the Minister said, we have had the Child Maintenance and Other Payments Act, which came on to the statute book earlier this year, and from which these regulations flow. This extended the scheme away from employment and covers any United Kingdom sufferer of mesothelioma, which may have been caused by workmen in a private house removing asbestos so carelessly as to cause the owner to inhale asbestos fibres. He will be eligible for a payment, provided he has not received compensation under either the 1979 or the 1997 Acts.

The regulations provide for how and when a claim must be made. I understand that some 600 people stand to benefit from a payment of £10,000 over the next two years. The department is to be congratulated on combining the claim for this payment with the one for industrial benefits.

However, there are some serious questions to be asked. First, my research threw up a curious anomaly, which I had not registered before. According to the Finnish Institute of Occupational Health, of seven European countries, we have the highest incidence of mesothelioma, at 39 per million people, while the lowest is in Germany, with only 16 per million. Can the Minister tell me why this is?

When will the sufferers, who will receive this new benefit within six weeks of application, start to receive the payment? It is clear that this will depend on the amount of advertising that the department undertakes. I believe that only a press release is currently contemplated, but I noted that the Minister said that this was to be issued to lung cancer centres around the country. Is he confident that that will be sufficient? Will the press release be sent to GPs’ surgeries and put on jobcentre and public library notice boards? Whatever the answer to these questions, as long as the Government keep their promises, we most certainly approve the order, as we did the policy on Second Reading of the Child Maintenance and Other Payments Act.

My Lords, I, too, welcome this new mesothelioma scheme, which, as the Minister said, is expected to help up to 600 people who do not currently receive help from the Government, with a payment estimated at £10,000 during the first two years of the scheme’s operation.

My two questions are very much like those of the noble Lord, Lord Skelmersdale. I was struck by the note in the Explanatory Memorandum that a press release was to be issued. That did not seem to me to be enough. Would it not be worth mounting a press advertising campaign to ensure that everyone entitled to claim has the opportunity to do so? However, I, too, noted the Minister’s further explanation of how this would be sent to lung cancer centres.

My second question relates to the same part of the Explanatory Memorandum, where it tells us that the department’s leaflet, Help and Advice for People with Mesothelioma, will be updated by early 2009 to contain references to the new scheme. Why will it take so long? Surely a new leaflet should be made available by the end of this summer at the latest.

My Lords, I am most grateful for the support for these measures from both opposition Benches. I shall try and deal with the points raised.

I am afraid I do not have to hand the comparison with the Finnish occupational health data, but I shall see what the department has and will revert to that. However, these are often very long latency diseases; we are dealing now with the consequences of exposure decades ago—40 years or sometimes even longer.

Indeed, my Lords. My point was that one has to look at the industrial conditions that prevailed at the time, not now. However, I will see what information I can get for the noble Lord.

Both the noble Baroness and the noble Lord asked whether the publicity we are putting out will be enough. The key thing is to reach people at the point of diagnosis so that they know that they can contact the DWP. They are invariably advised to contact a lawyer to seek civil compensation as well. As I explained in my opening remarks, that happens routinely at the moment. I am sure that more can be done, and I am happy to take back the message about doing things more generally and centrally.

The noble Lord asked whether one could be compensated for this only once. The answer is yes. As I explained, and I think he is aware, we are funding this through compensation recovery. Typically, in a civil claim, the compensators deduct from that the benefit paid by the state. This is putting the onus back on them.

I cannot tell the noble Baroness off the top of my head why it is taking so long to update the literature, but I will have it looked into. We want to do this as quickly as we can. We are confident that there are effective means by which to reach people who are diagnosed with this terrible disease so that we can help them to the fullest extent possible. I hope that that satisfies noble Lords.

On Question, Motion agreed to.