Lords motion to consider the Mesothelioma Lump Sum Payments (Conditions and Amounts) (Amendment) Regulations 2020 - Mar 3

Moved by

Baroness Stedman-Scott

That the Grand Committee do consider the Mesothelioma Lump Sum Payments (Conditions and Amounts) (Amendment) Regulations 2020.

The Parliamentary Under-Secretary of State, Department for Work and Pensions (Baroness Stedman-Scott) (Con)

My Lords, these regulations were laid before the House on 27 January 2020. This statutory instrument, together with the Pneumoconiosis etc. (Workers’ Compensation) (Payment of Claims) (Amendment) Regulations 2020, 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. As many noble Lords will know, these schemes stand apart from the main social security benefits uprating procedure. While there is no statutory requirement to increase rates, I am happy to maintain the position taken by my predecessors and increase the amounts payable from 1 April 2020 in line with the September consumer price index figure of 1.7%. This is the same rate of increase that will be applied to many other social security benefits, including those payable under the industrial injuries scheme.

This Government recognise the great suffering of individuals and their families caused by the serious and often fatal diseases resulting from exposure to asbestos or other listed agents. The individuals affected and their families may be unable to bring a successful claim for civil damages, often due to the long latency period of their condition. Some may not show signs of disease until many years after exposure, by which time their employer may have ceased trading. For those people, the lump sum schemes exist to provide compensation. As well as compensating people who cannot make civil claims, the schemes aim to ensure that people with those diseases receive compensation in their lifetime, while they can still benefit from it, without having to await the outcome of civil litigation.

I will briefly summarise the specific purpose of the two compensation schemes. The Pneumoconiosis etc. (Workers’ Compensation) Act 1979 scheme—to which, for simplicity, I shall refer 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, are unable to claim damages from employers because they have gone out of business and who have not brought any action against others 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 widens the criteria for compensation to those who contracted diffuse mesothelioma but are unable to claim compensation under the 1979 Act scheme—for example, those who were self-employed or those whose exposure to asbestos was not due to their work. The payments made under the 1979 Act scheme are based on the age of the person with the disease and the level of their disablement at the time of their diagnosis, measured on a percentage scale.

All payments for diffuse mesothelioma are made at the 100% rate. All payments under the 2008 scheme are also made at the 100% disablement rate and based on the age of the sufferer, with the highest payments going to the youngest people with the disease. In the full year from April 2018 to March 2019, 3,920 people received payments under both schemes, totalling £52.8 million.

I am aware that in past debates, Members have raised the subject of equalising the level of payments made to dependants with those made to people who have the disease and claim in their lifetime. It is, of course, clear that whole families can be devastated by the diseases covered by the lump sum scheme, which is why dependents are able to claim some compensation, albeit not at the same level.

When we have to make decisions about how we use our limited resources, it is only right that we target that money by giving it to the people to whom it can make the biggest difference. So, while we have listened carefully to concerns raised, the Government remain of the view that available funding should be prioritised to those people who are currently living with the disease.

I will now address some of the broader aspects of mesothelioma in more detail. The prevalence of diffuse mesothelioma in Great Britain remains at historically high levels. I know that this is a particular concern of Members. The disease has a strong association with exposure to asbestos, and current evidence suggests that about 85% of all mesotheliomas diagnosed in men are attributable to asbestos exposure that occurred through work. The life expectancy of those diagnosed with diffuse mesothelioma is very poor, and many people die within 12 months of diagnosis. Data published by the Health and Safety Executive shows that the number of mesothelioma deaths is projected to be around 2,500 in 2020 before being in decline in the following years, reflecting a reduction in asbestos exposure after 1980.

I will now briefly discuss lung health improvement more broadly. Although we expect the number of people diagnosed with diffused mesothelioma to start to fall in the coming years, we also know that many people will continue to develop it, and other respiratory diseases to which the regulations relate, for many years to come. That is why the Government are committed to working in partnership with our arm’s-length bodies and agencies to improve the lives of those with respiratory diseases. The Government have made improving outcomes for people with respiratory disease a priority; this is reflected in the NHS long-term plan.

During last year’s debate on the uprating of these schemes, my predecessor referred to the pioneering lung health checks trialled in Manchester and Liverpool. So far, this trial has shown an almost fivefold reduction in stage 4 disease in Greater Manchester, with 80% of cancers diagnosed at an earlier stage. We anticipate this scheme being rolled out across the country and I am pleased to report that a mobile site in Hull was launched only last month.

Returning to these important regulations, I am sure we all agree that while no amount of money can ever adequately compensate individuals or their families for the suffering and loss caused by diffuse mesothelioma and the other dust-related diseases covered by these two schemes, those who have these diseases rightly deserve some form of monetary compensation. I am happy to confirm to the Committee that these provisions are compatible with the European Convention of Human Rights and I beg to move.

Baroness Thomas of Winchester (LD)

My Lords, I thank the Minister for explaining these regulations, which uprate payments to sufferers of mesothelioma and other dust-related diseases and their dependants. As she explained the scheme and the reason for it thoroughly, I will not add to that. It is right that by debating these orders, we draw them to the attention of those who follow parliamentary proceedings, to show that we take this matter extremely seriously.

It cannot be emphasised enough that mesothelioma has a very long latency period and often manifests in an affected person decades after exposure to asbestos. It can also affect a person who has had no known exposure to asbestos and therefore no idea where the disease came from. I have anecdotal evidence from the family of a recent, now sadly deceased, sufferer of this terrible, pernicious disease. They stress the urgent need for more research into where the disease could have come from. In this case, it was not from any of the well-documented workplaces, so it is particularly worrying that there must be another source that has not so far been identified, or perhaps asbestos posing a danger in unexpected places. Another possibility is a combination of environmental conditions. More research in this area is vital: people with impaired lung function and their GPs must not be put off looking for mesothelioma because there was no known exposure to asbestos in the past. The earlier it is detected, the better. Will the Minister look into this particular problem to see what, if any, research is going on into unexplained cases of mesothelioma?

Although asbestos is now well-known to cause lung disease, it is perhaps not so well-known that it still lies undisturbed in thousands of buildings—such as schools, hospitals and, of course, Parliament—where there are now fears that it may be beginning to degrade. I wonder how much is known about this. This will be squarely in the remit of the Health and Safety Executive, which does a fine job but has recently had its budget cut. Surely, it must be given enough resources to carry out such vital work.

As the Minister said, the number of deaths from mesothelioma is about 2,500 a year, and I do not think it is likely to drop for several years. Last year, the noble Lord, Lord Alton, told us that the UK has the highest incidence of this disease in the world, which I find truly shocking. More research must surely be undertaken as a matter of urgency.

As the Minister said, every year when these regulations are debated, the most contentious issue is whether the Government will equalise payments to sufferers and their dependants. This surely is only fair, and I believe it was originally the plan. Although the Government say that they will keep the matter under review, they obviously have no intention of doing anything about it. I ask the Minister again whether they will look at this. Finally, I join with what other noble Lords will probably say, in making the annual plea for the uprating to be automatic each year.

5.15 pm

Lord Alton of Liverpool (CB)

My Lords, it is a great pleasure to follow the noble Baroness, Lady Thomas of Winchester, and I will echo some of her remarks about resources, research and automatic uprating. Along with many other noble Lords in Grand Committee today, I have been involved in the fight against mesothelioma for many years. I am pleased to see this important issue before us again because it is important that we keep it in the public eye and keep talking about the questions that the noble Baroness has just raised.

This is not an abstract, theoretical issue for many Members of your Lordships’ House. I have been surprised over the years by the numbers of colleagues from both Houses of Parliament who have told me about the loss of loved ones—people within their own families—who were affected by this killer disease. I fully support the uprating of the lump sum payments in line with inflation. We must do everything possible to support people who have been exposed to asbestos and other hazardous substances at work and who now face these terrible consequences.

In previous years, when these regulations have been discussed, as they have been annually since the introduction of the compensation scheme, noble Lords have asked whether future increases could be made automatically rather than being at the discretion of Parliament—a point that the noble Baroness touched on a few moments ago. It is important that the Government give careful consideration to this argument, and I look forward to hearing from the noble Baroness, Lady Stedman-Scott, when she comes to reply, about how the Government intend to take forward the question of automaticity. Doing so would send a powerful message that we are committed to supporting people and their families affected by these awful diseases.

Why do we need to keep raising our voices about mesothelioma and pneumoconiosis? There is a misconception that occupational lung disease is a historical problem that has been solved. However, there are still many occupations and high-risk work activities that present risks to lung health, from construction and cleaning to artisan baking and much more. The Health and Safety Executive estimates that occupational lung disease results in around 12,000 deaths a year.

Mesothelioma is an invasive type of cancer caused by prior exposure to asbestos. It grows in the pleural membrane that 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 the heart. There is currently no cure. Mesothelioma patients often have a short life expectancy and experience complex, debilitating symptoms. Around only 5% to 10% of people diagnosed with mesothelioma survive for five years or more.

As the noble Baroness reminded us, I made the point last year that, tragically, we have the highest rate of the disease anywhere in the world. Mortality rates have more than quadrupled over the past 30 years. It is estimated that around 2,500 people die of the disease every year, and that over the next 30 years around 60,000 people will die of mesothelioma in this country unless new treatments are found.

Mesothelioma is more common in certain parts of the country, such as Liverpool, where people are 18% more likely to die of this disease. Indeed, it was as the Liverpool Member of Parliament in another place that I first encountered the tragic and always fatal consequences of this disease. In Liverpool, mesothelioma has its roots in the historic industrial shipbuilding legacy, as asbestos was used extensively in shipbuilding. Later we will hear more about pneumoconiosis from my noble friend—and friend in every respect—Lord Wigley, but I can see that the noble Lord, Lord Jones, wants to intervene. I would not dream of holding back from allowing an intervention from him.

Lord Jones (Lab)

I am grateful to the noble Lord. I rise simply to say that I recollect the strong campaigns in another place made over the years by the noble Lord, Lord Alton, with sincerity and indeed to some effect.

Lord Alton of Liverpool

I am grateful to the noble Lord. For me, it has been a great pleasure to co-operate with him in both Houses of Parliament on issues of this kind. As he knows from his experiences in north Wales, many lung diseases are caused by inhaling dust. The common types include coal workers’ pneumoconiosis, which is caused by breathing in coal mine dust, and silicosis, which is caused by breathing in crystalline silica dust and typically affects workers in industries such as quarrying, foundries and potteries. Like mesothelioma, there is a long delay between exposure and onset of the disease. In 2012, 374 people in the UK died because of pneumoconiosis.

What about diagnosis, prevention and support for people with mesothelioma or pneumoconiosis? Here I pay tribute to the British Lung Foundation. This wonderful charity raises awareness of occupational lung disease and funds research into treatments and cures. It also provides the secretariat to the Taskforce for Lung Health. The task force is a coalition of more than 30 organisations from across the lung health sector, including royal colleges, patients, and the Health and Safety Executive, who came together to publish a five-year national plan to improve lung health in England. Included in the plan are recommendations to improve prevention and awareness of occupational lung diseases such as mesothelioma and pneumoconiosis. I should like the Minister to listen to two of the recommendations, which I will highlight, in order to ask her what more the Government could do to support their elevation in order to make sure that they are given real substance.

Under these recommendations, employers are responsible for ensuring that effective measures are in place to control exposure to hazardous substances in compliance with the Control of Substances Hazardous to Health Regulations 2002. They should also highlight risks at work to employees and encourage people to think about their own and others’ safety, including wearing the right protective clothing and masks. What are we doing to make sure that employers are honouring those recommendations?

Secondly, healthcare professionals should be trained to recognise and understand lung diseases which are caused at work. Asking questions about occupation when a patient presents with respiratory symptoms could improve early detection, allowing people to start treatment as soon as possible, as well as to access any compensation that they are owed. The number of occupations that present risks to lung health is surprisingly broad. Staff training should be included in undergraduate and postgraduate curricula and continuing professional development. Is that something that the noble Baroness would be prepared to take up with the relevant Ministers in other departments to ensure that it is acted upon? What will the Government do to take forward these recommendations?

What are the Government doing to increase funding for mesothelioma research? Research into lung disease is underfunded in comparison with the disease burden. Only 1.8% of the total UK health research spend went towards respiratory disease in 2018, despite it being one of the top three killers in the United Kingdom. As I have said, there is no cure for mesothelioma and it is poorly understood as a disease. That point was made earlier by the noble Baroness: the reasons people contract the disease are not sufficiently well understood.

In 2014, I tabled an amendment to the Mesothelioma Bill, and in 2015, I introduced a Private Member’s Bill in your Lordships’ House which would have put a small levy on participating insurance firms to help secure long-term research funding into mesothelioma. Unfortunately, the amendment and the Bill were defeated. At the time, it had the potential to raise about £1.5 million a year for research. That represents a small amount of money to each of the insurance companies but would have created a great number of research opportunities and given hope to people living with mesothelioma and, indeed, their families.

Since then, the Government have allocated £5 million for a national mesothelioma centre at Imperial College. I thank those Ministers who put in considerable effort to secure that and to look at voluntary funding from the insurance industry—I am thinking in particular of the noble Lord, Lord Freud, and the work that he did on that. I am pleased that the British Lung Foundation was also able to secure match funding for this £5 million and that two insurance companies, Aviva and Zurich, donated a combined £1 million to the British Lung Foundation’s mesothelioma research programme. Unfortunately, negotiations for a broader long-term funding commitment from the insurance industry came to a standstill. What are Ministers now doing to take that forward, building on the excellent work of the noble Lord, Lord Freud?

Overall, the British Lung Foundation has spent over £8.7 million on research into the disease. With this money, the BLF has been able to support further research and clinical trials, and has set up a mesothelioma research network. The network brings together researchers to share ideas and collaborate to help translate research more quickly into new diagnostics and treatments for people with mesothelioma. It now has 180 members worldwide and has led to 12 new or potential research collaborations. I pay special tribute to the efforts of the noble Lords, Lord Giddens and Lord Willis, and the noble Baroness, Lady Blackstone, who have worked, with me and others, to bring some of that about. Some of the research projects funded or co-funded by the British Lung Foundation have included exploring using the immune system to fight the disease and the development of a tissue and blood sample bank, MesobanK, which gives researchers quick access to samples and data to help accelerate research.

I would like to see more research into how we deal with asbestos in schools. This is a very real issue, about which far too little has been done. Again, I pay tribute to my noble friend Lady Finlay of Llandaff, who has taken a lead on this. It is also important to look at the effect of mesothelioma in the Armed Forces. We should recall the noble Lord, Lord West of Spithead, describing to us how young men played snowballs with asbestos at Dartmouth. The consequences of our past ignorance are still being lived out today.

While I fully support compensation for the victims of these diseases, it is surely in everyone’s interest—the victims, the Government and the insurers—to put investment into finding a cure. That would, long term, remove the need for lump sum payments or any insurance industry levies. Because this field is so underfunded, every pound of investment is likely to be worth while and to attract further funding. I am pleased that the British Lung Foundation continues its work to secure funding for vital mesothelioma research. It has recently secured £5 million over five years from Catalina Holdings, aimed at achieving early diagnosis and trials of high-potential drugs. But the Government must do more as well.

I come to my last point. The Merseyside Asbestos Victims Support Group—I pay tribute to John Flanagan and to Joanne Gordon, who chairs the Asbestos Victims Support Forum—has raised with me the particular case of equalising and upgrading posthumous payments. I hope that the Minister will reply to this point tonight—I know that it has been raised with the Government by the metro mayor of Merseyside and others. The payments are meant to provide some compensation for asbestos victims who cannot take legal cases. That is surely right. However, there is an inconsistency in the schemes. If applications are made after the patient has died, the payments, which can be claimed only by surviving partners or dependent children, are substantially lower. That cannot be right.

A victim aged 77 making a claim based on a 100% IIDB award will receive £14,334. The surviving partner of someone who passed away at the age of 77 will receive £7,949. In such a situation, many family members feel that the life of their loved one lost to this devastating disease is regarded as being of less value. This is surely morally wrong, especially as in a legal claim a surviving partner will suffer no such disadvantage. Furthermore, victims’ families could suffer a financial hardship, as people budget on the basis of two incomes and, through no fault of their own, are reduced to one income and are further disadvantaged by receiving a lower government compensation payment.

The victims who receive payments are not interested in the money for themselves. However, they are concerned about the financial security of their families. In this situation there is clearly a moral and financial case for raising the level of posthumous payments. I know that the noble Baroness will have been listening with care, and I hope she will be able to respond in a positive way.

There are also practical considerations. Of the 3,830 payments made in 2018, only 260 were posthumous claims. In 2010, the Government acknowledged that there was no justification for differential payments, further adding that such inequality in payments could put pressure on victims at a time when they are most vulnerable. The Government made a firm commitment to bridge the gap between in-life payments and posthumous payments. I hope the noble Baroness is able to say today that that commitment will be honoured.

Some 60,000 people will die over the next 30 years. We owe it to them not to merely go through an uprating ritual every year but to provide tangible support and world-class leadership in research.

5.30 pm

Lord Wigley (PC)

My Lords, I am delighted to follow the noble Lord, Lord Alton, in this debate. We have campaigned together on many occasions, and I was glad to support his Bill in the past. I came to the mesothelioma question through the death of a very close friend, my school chum Peter Wolfe, who died four or five years ago, within a matter of four months of having been diagnosed as suffering from mesothelioma.

The figure quoted, of 60,000 possible deaths, may be more than the number of deaths in the UK arising from the present flu scare. That puts it into context and underlines the need for us to address it. I have spoken in several debates on this in the past and will not repeat the points I have made. I very much support what was said by the noble Baroness, Lady Thomas, and the noble Lord, Lord Alton, about the need for funding for research in order to minimise the extent of suffering due to mesothelioma and asbestosis. I reinforce the point made about schools. So many schools were built using asbestos, and in Wales, the National Assembly are facing this issue in a number of locations. This has to be tackled, otherwise there will be problems.

I will focus mainly on the pneumoconiosis order, although the two do of course blend into each other. From debates in earlier years on the uprating orders, noble Lords may recall the interest I have in these matters, arising from having represented for 27 years a slate quarrying area in the Caernarfon constituency. They may well also recall the significant involvement that my colleagues and I had in pressing for the Act to be completed in the dying days of the 1974-79 Labour Government—something that my noble friend Lord Jones will well recall.

Lord Jones

The noble Lord will recollect that I was a member of that Administration, which fell on a vote of no confidence.

Lord Wigley

Indeed. Our three votes were not enough to save that Government, but they were enough to help the pneumoconiosis Act find its way through, in two days flat, to the statute book. That that happened is a tribute to Michael Foot, among others. There had been delays all along in getting the Act on to the statute book, but Michael Foot made sure that it went through both Houses within 48 hours—quite a remarkable achievement.

It might interest noble Lords to know that considerable interest is now being taken in this legislation in the context of the bid for UNESCO to accord world heritage status to the slate industry in north-west Wales, in a similar manner to that given to the coal industry’s big pit at Blaenafon. One aspect of interest in the presentation of that case is the way in which the slate quarrying communities led the fight and campaign to secure compensation, not just for slate quarrymen, whose health was undermined by breathing in industrial dust, but for workers in so many other industries. That includes those working in cotton mills, pottery production, foundries and other metal industries, and even some working in the coal mining communities who were not covered by the coal mining scheme.

In recent years we have seen asbestosis and mesothelioma, both covered by the Act, become the predominant part of the payments made under the Act, which I will come on to now.

At the time of passing the 1979 Act, the Government estimated that it would cost £5 million in the first year and, thereafter, £75,000 per year—yes, £75,000 per year. In fact, more than £20 million was spent in the first five years and £30 million over the subsequent 10 years. In the five years from 1994 to 1999, the figure was £25 million. Since then, expenditure under the Act has mushroomed. From 1999 to 2009, £236 million was spent, and from 2010 to 2019, £415 million was spent. A large part of that was clearly associated with asbestos-related diseases, but I have tried by way of Written Questions to identify which payments were related to which industries that come under the purview of the Act—which is a reasonable question to ask—so that we might see how the issue relates to other industries.

I wanted also to establish that the total cost of asbestosis is not only the payments under the 2008 scheme but a large part of the payments being discussed here, which adds to the significance of the need to find a solution for those suffering from mesothelioma. We have a right to know. Certainly, it is not the slate quarrymen who have been the beneficiaries of the huge sums that I have referred to, but they will of course be glad that provision is there is to help others in need. The trigger is asbestosis. Can the Minister confirm that, if those figures are not available now, the Government will undertake to identify exactly what costs are attributable to what industries?

I do not deny for a moment the absolute right of those in any industry who have suffered loss of health and even life as a result of their work to be properly compensated, but questions need to be answered about whether the schemes still help those not affected by asbestosis and to what extent. Perhaps a focus can be put on that. It is also relevant to ask what the total for mesothelioma is between all the schemes and what research budget is needed. It is a large sum, but it needs to be even larger to help those most in need. I would be grateful for the Government’s response.

Lord Jones

I thank the Minister, the noble Baroness, Lady Stedman-Scott, for her caring introduction. The increase of 1.7% in respect of asbestosis must be welcome, but, whatever the lump sum paid and whatever the increase, none of us can quite comprehend the miserable impact on the sufferer or the dependant, but it is good that some recompense has now been made.

Is there a regional breakdown of where sufferers worked historically? Does the department have that information? Is there any indication of the number of survivors and the number of dependants in receipt of payments? Does the department have such a figure? What sum of money has been paid so far since enactment? Does the department have that information? If so, could it be given to the Minister?

There have been some recollections. The late Lord Harold Walker of this noble House described to me how in the late 1960s workers in a factory in Hebden Bridge played snowballs with the piles of asbestos. The real tragedy in this case is that the asbestos was blue, which is, in effect, a certain prescription for illness and death.

I recollect debating the subject of the second SI with the Minister on a previous occasion. I remember it well; it might have been her first appearance in this Committee—a very fine appearance, if I might say so. She was responsive, as she always is. Again, I thank her. I intervene on this SI on the matter of the slate quarrymen, particularly those in north Wales, on whom the noble Lord, Lord Wigley, gave us his own insights. How many claimants are there now? How many dependants are claiming? Is there a breakdown for that part of Wales? Is there a breakdown by county—or country—of claimants throughout England and Wales? Is such statistical information available to the department?

Should there be the time and inclination, I will briefly describe a quarry in Blaenau Ffestiniog called Llechwedd. It is underground, of course, cavernous, dark and damp. There were dangers and pitfalls. Of course, the quarrymen worked underground at the quarry face. There were no health and safety regulations whatever when that quarry was at work. In what we call the olden days the quarrymen had to pay for the candles that lit their place of work. That is the memory and heritage. That makes some humanity of the regulations that the Minister must necessarily bring to the Committee. I stress that the emphasis of regulations should be on their humanity—the consequence for the citizen.

Another quarry, Penrhyn, was arguably the biggest in the world. Ten miles away from that great quarry, which is not active now, is a great castle, Penrhyn Castle. It is now a National Trust property. Should Members ever visit it, there is a Rembrandt in the breakfast room. My point is that the castle is mighty; it was built in the 19th century on the profits from the slate quarries. The contrast between the humble quarryman, and the mighty potentate and the wealth and treasure he and his descendants had, is enormous. It puts our debate into further context.

In 1976 I sat alongside the late Michael Foot, when he was deputy leader of the British Labour Party, as a junior colleague throughout the passage of the legislation. He enacted the first Health and Safety at Work etc. Act. It is relevant to emphasise that historic legislation to place this important SI in context. The department would then be the keeper of that memory, and the memories which noble Lords have recalled and put forward for consideration today.

5.45 pm

In the quarry, there is a small hospital with a tiny ward. The quarrymen from Ynys Mon/Anglesey would walk to the mainland by first crossing the Menai Strait. They would have tiny, humble lodgings on site while they were at work for the week. It is I think moot to remember where these regulations came from. That little hospital ward in what was once arguably one of the largest quarries in the world is now a museum. These matters bring humanity to important regulations, so it is always important for those who have a connection to make these statements.

Lord Freyberg (CB)

My Lords, much has been done to raise awareness of this disease and to improve the lives of people affected by it. This is thanks to a great deal of political support and work by colleagues in this House and the other place. I refer here to my noble friend Lord Alton, who gave his customary forensic analysis of the issue, the noble Lords, Lord Giddens and Lord Wills, and the noble Baroness, Lady Blackstone; and in the other place, Mike Kane, Tracey Crouch and the late Paul Goggins. My noble friend Lord Alton highlighted the invaluable work led by the British Lung Foundation and others.

Although we may expect the decline in heavy industry and mining over the last century to have eradicated occupational lung disease, people are still affected by exposure to harmful substances at work. As my noble friend Lord Alton mentioned, the Health and Safety Executive estimates that occupational lung disease results in around 12,000 deaths a year. For mesothelioma, there is currently no cure. Patients often have a short life expectancy and experience complex, debilitating symptoms.

A recent case regarding a former doctor in Coventry, Dr Kate Richmond, who is 44 with two young children and has only months to live, highlights that we must continue to strive so that employers are responsible for ensuring that effective measures are in place to control exposure to hazardous substances and must comply with the Control of Substances Hazardous to Health Regulations 2002. Last November, during the High Court hearing of Dr Richmond’s case against University Hospitals Coventry & Warwickshire NHS Trust, Judge Master Davison found that she had been negligently exposed to asbestos. Dr Richmond’s exposure as a trainee during the demolition of Walsgrave Hospital was due to

“frequently using underground tunnels in which there were pipes covered with asbestos lagging in poor condition.”

It resulted in a number of people who work for the NHS raising concerns about their working environment. This underscores the calls to fix capital funding to upgrade NHS facilities—and similarly in our schools. If we cannot get it right in-house and have the NHS lead by example, how can we expect others to take steps to remove harmful materials from the workplace?

The regulations under debate today are the annual revision to the rates for the lump-sum compensation payments to people with mesothelioma or pneumoconiosis or to their surviving dependants. The payments are dependent on the age of the person at the time of diagnosis or, if unknown, at the date of the claim. Typically, the payments are uprated each year in line with inflation. The total amount of the levy to be charged for 2019-20 is £33.3 million. I notice that the proposal is to increase the lump-sum payment in line with the consumer prices index, currently 2.4%. I do not know whether that is standard Treasury practice for compensation schemes, but the RPI inflation rate currently stands at 4%. My first question to the Minister is, as in the previous debate, whether this is too small an increase and whether this is the right measure to uprate these schemes.

In last year’s debate the Minister stated,

“I know that in previous debates on increasing the value of these lump sums, noble Lords have raised the subject of equalising the payments made to dependants who claim after the death of someone who had the disease with those made to people who have the disease and claim in their lifetime. However, I must tell noble Lords that we do not intend to equalise payments. The Government’s view remains that it is most important that the available funding is given to the people with the condition who would most benefit from it.”—[Official Report, 14/2/19; col. 1968.]

I am raising this matter again, as have the noble Baroness, Lady Thomas, and the noble Lord, Lord Alton, in light of the case highlighted earlier, given the relative youth of the doctor and her dependent children. Does the Minister still regard not equalising compensation payments as fair? Does the state not have a duty of care to frontline professionals working in the public sector? It seems particularly churlish not to invest in capital assets such as hospitals and schools and then to potentially disadvantage dependants on the grounds that this is taxpayers’ money. In this case, the doctor will have to spend her last months fighting the Government for compensation to ensure that her children are properly taken care of when the household they live in loses its mother and her salary sooner than would otherwise have been the case.

Turning to research, prevention and diagnosis, I welcome the NHS lung health check programme mentioned today by the Minister. It has been offered in some parts of England from autumn 2019 and aims to help diagnose lung cancer at an earlier stage when treatment may be more successful. I also welcome last week’s announcement by the University of Glasgow and NHS Greater Glasgow and Clyde which are set to benefit from a £5 million European research award to refocus research efforts on mesothelioma. The project, led by Professor Kevin Blyth, will help scientists across the UK to develop new research tools, resources and infrastructure to improve their understanding of cancer, including rare and hard-to-treat cancers, helping to find better ways to treat them. Professor Blyth said in the launch press release:

“It’s been difficult to build a network of scientists with enough cases of the disease to build a thorough understanding of how to best treat mesothelioma. And this has left people with the disease very few treatment options.”

Now that the UK has left the European Union, how do we retain collaborative cancer research with the EU and other research-focused countries? What steps are the Government taking to safeguard vitally important research initiatives such as this one, which rely upon data sharing across borders? The Government have said that they will diverge and have their own data protection scheme in the future. Could that prove to be detrimental to research efforts, innovation and of course patients in the UK? I also flag the publication of the EU’s artificial intelligence white paper, published on 19 February 2020.

What steps are the Government taking to ensure that communities such as Glasgow which are disproportionately affected by mesothelioma are not going to be left behind if they fail to agree a sensible way forward which enables research and innovation to flourish in the post-transition period? Glasgow has some of the highest rates of mesothelioma in the world due to the previous widespread use of asbestos in the shipbuilding industry.

Finally, the main focus today is on the people affected by these devastating diseases who currently have little hope due to the lack of treatment options available. It is for them that we must approve these regulations and continue to do all we can to support them.

Lord McKenzie of Luton (Lab)

My Lords, I thank the Minister for introducing these regulations. I love this debate each year here in this Room. It is incredibly powerful, compassionate and knowledgeable, and we should take it to the Chamber so that the wider world can listen to it. We have heard from the noble Baroness, Lady Thomas, about long latency and issues where there is no known cause, which are therefore incredibly difficult to diagnose and treat. I think that that is the situation in a number of cases. We have also heard from the noble Lord, Lord Alton, who is a stalwart of these occasions with his knowledgeable contributions. He spoke in praise of the British Lung Foundation and explained what it has been doing. We heard from the noble Lord, Lord Wigley, and my noble friend Lord Jones about slate quarrymen, reflecting the very real issues that for the noble Lord, Lord Wigley, are deeply personal, which enhances our debate. The noble Lord, Lord Freyberg, had questions for the Minister about collaborative research and what might be lost by our departure from Europe.

As we have heard, the mesothelioma lump sum payments regulations have uprated the lump sum payments for sufferers and their dependants in line with the September 2019 consumer prices index, which was 1.7%. We recognise the fact that the Government have reviewed the rates to maintain their value in line with inflation, although they are actually under no statutory obligation to do so, a point which I think has been made.

The Child Maintenance and Other Payments Act 2008 made provisions to fast-track up-front lump sum payments for people diagnosed with diffuse mesothelioma and their dependants. The scheme was introduced in recognition of the challenges that people can frequently face in obtaining compensation from one source or another and the fact that sufferers usually die within months of being diagnosed. It operates alongside the scheme established under the Pneumoconiosis etc. (Workers’ Compensation) Act 1979, with the one difference being that the 2008 provisions assume 100% disability. That is not the case for pneumoconiosis.

These dust-related diseases are very much a reflection of our industrial past and the carelessness with which employers approached health and safety. The 2008 scheme provides for payments to be made to dependants where a person has died from mesothelioma before a claim can be completed. We are told that the 2008 Act payments are made from a compensation recovery mechanism which are then recovered from any subsequent successful civil compensation claim. This being the case, can the Minister tell us what levels of compensation have in fact been recovered in recent years and how do they relate to the 2008 Act payments? The 2008 scheme provides a one-off payment to sufferers who have no occupational link to the disease or who are self-employed. They include, for example, sufferers who live in close proximity to a workplace containing asbestos, those exposed to asbestos in the environment and to family members exposed via workers’ clothing. Payments can be made to dependents but not at the same rate as sufferers, which is a bone of contention that I will come on to.

Mesothelioma is a type of cancer that develops in the lining covering the outer surface of some of the body’s organs and is usually linked to asbestos exposure. Mesothelioma mainly affects the lining of the lungs, although it can affect the lining of other organs as well. It takes some years to develop, but it is usually rapidly fatal following the onset of symptoms. Unfortunately, it is rarely possible to cure mesothelioma, although treatments can help to control the symptoms. That is why it has been important to hear about some of the developments in research. It may take some while, but we need to keep the pressure up, so the engagement that noble Lords have with those involved is incredibly important.

According to the NHS website, more than 2,600 people are diagnosed with mesothelioma each year in the UK. Most cases are diagnosed in people aged 60 to 80, and men are affected more commonly than women. Last year, the Minister said that deaths from mesothelioma are at a historically high level, as we have heard again today, and the widespread use of asbestos in the decades after World War II means that this issue may be with us for some time to come, sadly.

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A 2015 study found that some 85% of schools contain asbestos. The material was typically used in buildings between the 1940s and 1970s. Experts say that it is a greater health risk as it gets older and starts to degrade. It needs to be treated with care and expertise. According to the National Education Union at least 315 teachers have died from mesothelioma.

While welcoming the uprating, we remain concerned about the lack of parity between lump sum payments made to sufferers and those made to dependants. Will the Minister tell us whether she thinks that arrangement is fair? Would not compensation recovery levels permit the closure of the gap? What amounts would be needed to do this? What assessment have the Government made of the impact of the lack of parity in payments for women, given that the difference in payments can often affect women whose husbands were directly exposed to asbestos at work? Will she advise on the most recent estimated cost of providing equal payments for sufferers and their dependants?

I note the call for an automatic uprating each year. This seems an entirely sensible thing to do, as long as it does not preclude us having these debates.

We might just reflect that these arrangements sit alongside the diffuse mesothelioma payment scheme, which was established in 2014 with the help of the noble Lord, Lord Freud, as we have acknowledged in the past. It applies to those diagnosed with the disease who contracted it as a result of negligent exposure. A person cannot get redress because the employer no longer exists and the employer liability insurance policy cannot be found, or, as in some cases, has been destroyed. This payment scheme resulted from years of wrangling and was eventually settled by insurers who wrote employer liability business agreeing to contribute to a fund. The calculation limit was originally capped at 3% of gross written premiums. Will the Minister tell us whether the cap had to be employed in any year? Can we also have an update on the tracing of employer liability policies and whether the obligation to contribute to the payments fund acted as a spur to better tracing of policies?

Elements of the insurance sector have, over the years, contributed to medical research. This was at the urging of several noble Lords who we have heard from today, and who have been involved in this previously. Is there an update on where those matters lie?

It is vital that we continue to raise awareness of the risks of working with asbestos. Will the Minister reassure Members that continuing to raise such awareness is a priority for the Government? Will she tell us how the Government will do this?

Responsibility for asbestos management rests primarily with the Health and Safety Executive. It is important to point out that, as we have heard this afternoon, the HSE’s funding has been cut significantly since this Government came to power. It will receive more than £100 million less from the DWP in 2019-20 than it did in 2009-10—a reduction of 54% in real terms. Between 2010 and 2016, the number of inspectors was reduced by 25%. Can the Minister tell us about the impact of these cuts on the ability of the HSE to run campaigns to raise awareness of asbestos and mesothelioma? Will she also take this opportunity to rule out further cuts to the HSE?

Can she assure us that the Government will fund the HSE at a level that enables it to carry out its responsibilities post Brexit? Will she also commit to ensuring that, so far as is possible, any trade deals concluded post Brexit do not increase the risk from asbestos? It has been reported that a post-Brexit trade deal with the US could raise the threat of products containing asbestos entering the UK. Currently in Britain there is a total ban on the importation and sale of asbestos-containing products. This is an extremely important issue, so I hope that the Minister can confirm that the UK will not in any event seek to lower standards in this country to match American regulations which, as I understand it, allow the use of products containing up to 1% asbestos.

We welcome the regulations to increase lump sum payments to pneumoconiosis sufferers by 1.7% in line with inflation. We have further noted that the Government are under no statutory obligation to do so in this case either. The pneumoconiosis regulations refer to the 1979 Act, which provides lump sum payments to people suffering from certain asbestos-related conditions or, if they have died, to their dependants where they are unable to claim damages because the employer has gone out of business. As well as mesothelioma, the scheme covers pneumoconiosis, bilateral diffuse pleural thickening, byssinosis and primary carcinoma of the lungs where there is accompanying evidence of asbestosis and/or bilateral diffuse pleural thickening. Will the Minister set out what action the Government are taking to raise awareness of all of these diseases and the support that can be offered?

We are told that people suffering from pneumoconiosis often face a series of hurdles to receive payments from the DWP. It can be difficult to diagnose the disease using two-dimensional X-rays since they may not show enough detail. It can take 10 years to manifest itself, so the last X-ray a miner receives on leaving work may well not pick it up. How will the Minister respond to this? As with the mesothelioma regulations, we welcome the uprating, but again there is a lack of parity between the levels of compensation being offered to sufferers and to their dependants. Doubtless we will return to this if there is no movement from the Government. What other support, as well as financial support, is made available by the Government to those who have lost a loved one due to one of the diseases covered by these regulations?

In conclusion, we should acknowledge, as the noble Lord, Lord Alton, has done, the work of the support groups. I have not been in touch with them recently, but I know that they are powerful organisations that keep the focus on these important issues. I support the regulations and look forward to the Minister’s reply.

Baroness Stedman-Scott

My Lords, my first time speaking at the Box was to reply to the mesothelioma debate. I remember having a wad of papers then, and today it is the same size. I will do my best to answer all the points which have been made, but if I do not cover them all, I will undertake to read Hansard with my officials to ensure that points which are not responded to verbally are answered in writing. I thank all noble Lords for their contributions. I thank the noble Lords, Lord Jones, Lord Freyberg and Lord Wigley, for their reminders that this is about people who have suffered and are suffering.

I start by referring to what the noble Baroness, Lady Thomas, said about the indiscriminate nature of mesothelioma. As she and all noble Lords will be aware, it is not always the people who work in dangerous environments who get this disease. For example, there have been tragic cases where a worker’s spouse has been exposed while cleaning work overalls. This is why the 2008 Act scheme was set up: to order compensatory payment to anyone with diffuse mesothelioma without a medical examination, regardless of whether they have worked in hazardous environments.

On the crucial matter of research, raised by the noble Lords, Lord Alton, Lord Freyberg and Lord Wigley, and others, the Department of Health and Social Care has been working to stimulate mesothelioma research activities, including making specific calls for research proposals. I believe that the Medical Research Council spent £2 million on research directly related to mesothelioma in 2018-19. Noble Lords will no doubt be aware of the £5 million grant awarded in 2016 from Libor fines to establish a National Centre for Mesothelioma Research. More recently, the Department of Health and Social Care has been working with the British Lung Foundation—another organisation referred to by noble Lords—to support the first UK mesothelioma research network.

All noble Lords have drawn attention to the issue of undisturbed asbestos in public buildings, notably schools. The Government take the matter of asbestos in public buildings seriously. Since 2015, £7.4 billion has been allocated by the Department for Education to building refurbishment, which includes asbestos removal. The Department for Education also launched a new asbestos management process in 2018 to understand how the issue is being handled by state-funded schools. More broadly, I refer all noble Lords to the advice of the Health and Safety Executive: as long as the asbestos is in good condition and protected from damage, it is usually safer to leave it in place and manage it than remove it.

Noble Lords referred to equalising payment rates between those with the disease and their dependants. The intention of the scheme is to provide support to people living with these diseases. My view is that funding should be targeted where it is needed most. In addition, equalising payments would require an overhaul of the payment structure. In 2018-19, 350 awards were made to dependants, compared with 3,570 awards made to those with diseases. Awards to dependants under the 1979 Act scheme are made in two parts: the first payment is for the effects of the illness before death; a second payment is made in cases where death was caused by the relevant disease. Equalising payments would, of course, entail primary legislation and be subject to other government priorities.

Noble Lords referred to calls for uprating to be automatic each year. The point has been made that if we did that, we would not be having this debate. I am not into trade-offs, certainly when they involve people’s lives, but maybe the deal can be that I will try to get this debate in the Chamber next year. Payments have been uprated each year in line with inflation since 2004. Making any change to uprating legislation would make no monetary difference to those in receipt of payments. As I said, we could lose the opportunity to debate this important subject.

On the tragic case of the NHS doctor, Kate Richmond, assuming that Dr Richmond suffers from mesothelioma, our schemes can pay out without liability being established. Anyone in this situation is paid the highest rate for their age without needing a face-to-face assessment. Rates are highest for those who contract the disease at younger ages. I acknowledge the important point that the noble Baroness, Lady Thomas, made about payments to children. I will take that back to the Minister for Disabled People.

The noble Lord, Lord Freyberg, raised the issue of uprating the sums to average earnings rather than RPI or CPI. The Government believe that CPI is an appropriate measure of price inflation, but if the noble Lord has other thoughts on this, I would be very happy to take them back to the department. On the critical point he raised about collaborative research in the EU, it is vital that research into these diseases continues as smoothly as possible. I know that this Government view innovation and research as a priority. I will write to the noble Lord on the specific matter of this health research and I am happy to share that with all noble Lords. I am sure he will appreciate that collaboration with the EU is a cross-departmental matter which we must continue to push.

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The noble Lord, Lord Freyberg, also raised the issue of action to help communities such as Glasgow, which is disproportionately affected. As I said in my opening speech, the NHS is delivering a ground-breaking lung health check programme targeting those aged between 55 and 74 years old in parts of the country with the highest mortality rates from lung cancer. After having been trialled in the north-west of England, it will be rolled out more widely.

All noble Lords asked about putting the uprating of the lump sum scheme onto a statutory footing. Since 2004, Ministers have agreed that payments under the scheme can be uprated in line with inflation. Making this legally binding is extremely difficult, as I have said before, and it will not make any monetary difference at all.

The noble Baroness, Lady Thomas, and the noble Lord, Lord McKenzie, raised the important issue of the Health and Safety Executive, and of course the noble Lord, Lord Jones, reminded us about the first health and safety Act. We have one of the best workplace health and safety records in the world, achieving some of the lowest rates of occupational injury and fatality. At the same time, the Health and Safety Executive has demonstrated an ability to deliver better value for money, moving more cost to those who create the risks. I think that is where some budget balance can happen. The executive regularly reviews its approach to regulation with the aim of ensuring that it has the greatest impact in preventing workplace death and injury.

What action is the Health and Safety Executive taking to raise asbestos awareness? Delivery of the strategy for occupational lung disease includes a national summit to raise the profile of occupational lung disease and to establish and facilitate a new healthy lung partnership to provide direction and co-ordinate stakeholder activity on occupational lung disease.

The noble Lord, Lord Alton, mentioned the task force recommendations. He makes very valid points which I shall raise with Ministers at the Department of Health and Social Care, who lead on these matters, and make sure that a response is forthcoming—I hope he is happy with that. He and others raised the promotion of research. As I have said, the Department of Health and Social Care has been working to stimulate activity. The Medical Research Council spent £2 million, and a £5 million grant was awarded from the Libor fund, as I said.

The point was made that although we pay compensation, at the same time we must invest to find a cure. That is a very important point.

The noble Lord, Lord Alton, raised the issue of awareness of asbestos in schools, and the noble Lord, Lord Freyberg, asked about asbestos in NHS and public buildings. It is vital that we deal with the legacy of asbestos in public buildings in the safest manner possible. The noble Lord will appreciate that this is a question for the Department of Health and Social Care, but I will write to him on this subject. The Department for Education and the Health and Safety Executive are proactive in promoting good asbestos management in schools. The DfE convenes the asbestos in schools steering group, comprising experts and campaigners, to support the department in providing guidance to schools on the effective management of asbestos.

We have talked about equalising dependant payments. I have said that it is about making sure that the money goes to those with the disease and, via different payment methods and amounts, to those who have lost people.

Lord McKenzie of Luton

I am trying to understand whether the compensation recovery mechanism produces more than, less than or the same as the money needed for the 2008 arrangements and whether there is a surplus which might be applied to equalisation. I am not sure that the Minister has dealt with that point; perhaps she will come on to it.

Baroness Stedman-Scott

I have had a number of detailed questions about data, which I will come to.

The noble Lord, Lord Alton, mentioned the insurance industry’s funding for mesothelioma research. Again, I will cover that in the letter.

I have had numerous requests for information: industry led, geographically led and fiscally led, whether there are surpluses or anything else, and about the number of claimants in the slate quarry. I hope noble Lords will understand that I am not able to give them that information at the moment, but I will work with officials to get a complete set of data, where it is available, and I will cover the points raised. Information on the slate quarrymen awards is held by the department. It might be difficult to get, but we will have a go.

The noble Lord, Lord McKenzie, asked what proportion of the amounts paid under the 1979 Act and 2008 Act schemes is recoverable from claims for civil damages. In 2018-19, a total of £24.5 million was recovered. In the current financial year to December 2019, £21.9 million has been recovered. The net cost of the 1979 and 2008 Act schemes to the Government in 2018-19 was £28.2 million.

The noble Lord asked about the number of cases of mesothelioma and requested a breakdown by profession. I will include that in the data that I send out.

Dependants receiving compensation are mostly women. I was asked whether we had considered equality issues. The intention of the scheme was to compensate those who had contracted the disease as a result of their working environment. Historically, those who worked in hazardous environments tended to be men, and this is reflected in the current gender balance of claims.

The noble Lord, Lord McKenzie, asked about the levy on the insurance industry and the cap rate of 3% of gross written premium. The levy is reviewed annually using estimates based on management information from the scheme administrator. The levy for 2019-20 is £33.3 million, which is below the cap of 3% of the employer liability gross written premium.

Trade deals were raised and the need to make sure that no opportunity is given for asbestos-related issues to arise. Our standards in the UK are very high and we have no intention of lowering them.

The noble Lord, Lord McKenzie, asked also about progress on employer liability tracing. I will need to write to him about that once I have found out.

As last year, this has been a wide-ranging debate which has shown this Committee’s interest in and commitment to the people who have suffered this dreadful disease. I thank Members for their many and helpful contributions. I think that I have dealt with a lot of the questions raised, but, as I have promised, I will go through Hansard with my officials and make sure that every noble Lord gets an answer to their questions. The Government recognise the important role played by these schemes in providing financial support to people diagnosed with mesothelioma and the other dust-related diseases covered by them. The regulations will ensure that the value of the schemes is maintained. I commend the uprating of the payment scales and ask for approval to implement it.

Motion agreed.

Pneumoconiosis etc. (Workers’ Compensation) (Payment of Claims) (Amendment) Regulations 2020

Considered in Grand Committee

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Moved by

Baroness Stedman-Scott

That the Grand Committee do consider the Pneumoconiosis etc. (Workers’ Compensation) (Payment of Claims) (Amendment) Regulations 2020.

Motion agreed.