COMMITTEE FOR SOCIAL DEVELOPMENT
OFFICIAL REPORT
(Hansard)
Draft Mesothelioma, etc., Bill
17 April 2008
Members present for all or part of the proceedings:
Mr Gregory Campbell (Chairperson)
Mr David Hilditch (Deputy Chairperson)
Mr Mickey Brady
Mr Thomas Burns
Mr Fred Cobain
Mr Fra McCann
Mrs Claire McGill
Miss Michelle McIlveen
Witnesses:
Mr Gerry McCann )
Mr John O’Neill ) Department for Social Development
Ms Doreen Roy )
The Chairperson (Mr Campbell):
I welcome Mr John O’Neill, Mr Gerry McCann and Ms Doreen Roy from the Department for Social Development to the Committee. The witnesses are present to discuss the draft mesothelioma, etc., Bill. Can all mobile phones be switched off as they interfere with the Hansard recording system.
Mr John O’Neill (Department for Social Development):
The Department has already sent some material on the draft Bill to the Committee.
The Chairperson:
Yes, it has.
Mr J O’Neill:
First, I want to cover the main points of the proposal. Diffuse mesothelioma is a particularly terrible illness. Although it has a long latency period, sometimes in excess of 40 years, life expectancy from the point of diagnosis is very short — on average, around nine months. Most people who contract mesothelioma do so as a result of coming into contact with asbestos fibres at their workplace.
Some help is already available to those employees who can establish an occupational link — for instance, in the form of industrial injuries disablement benefit — and most employees can also seek civil compensation from their former employer. When employees cannot trace their employer, payment can be made under the Pneumoconiosis, etc., (Workers’ Compensation) ( Northern Ireland) Order 1979.
If the draft Bill is introduced, it would break new ground by providing for a lump-sum payment to be made to those suffering from diffuse mesothelioma without the need to establish any occupational or causal link. It will be available to all sufferers, irrespective of whether they were employees, self-employed or, indeed, have never worked.
The scheme is expected to benefit those who currently cannot claim or would have difficultly in claiming compensation. That would include: those who have been exposed to asbestos from a relative — for example, through washing their work clothes; those who have been exposed to asbestos environmentally — for example, those who live near a factory using asbestos; those who are self-employed; or those who cannot trace a specific exposure to asbestos.
Given the very short life expectancy, the aim of the scheme is to provide payments within a matter of weeks of diagnosis. When a person dies before the payment is made, their dependants will be able to claim under the scheme. That means that anyone who contracts mesothelioma will be eligible for a lump-sum payment within a matter of weeks; that will apply to those with recourse to other avenues — for example, through civil compensation, through an employer or under the 1979 Order. Pursuing civil compensation can take some time, and, because of the poor life expectancy associated with the disease, sufferers often die before compensation is paid.
The scheme aims to get a lump-sum payment to sufferers when they can still benefit from it and to give them greater financial security in the final months of their lives. The draft Bill provides for lump-sum payments under the draft Bill and the 1979 Order to be recoverable from subsequent civil compensation, similar to social security benefits. Any moneys received or recovered will be ploughed back into the scheme with the aim of funding higher payments in the future.
The amount payable to a person diagnosed with diffuse mesothelioma is expected, initially, to be set at around £6,000. As money is recovered from civil compensation, it is hoped that payment will increase over the coming years to match the amount payable under the 1979 Order, currently around £18,000. Someone who has already received civil compensation, or has received moneys under either the 1979 Order or the new scheme, will not be eligible for a further lump-sum payment under the draft Bill.
The draft Bill provides an appeals system that applies to the determination of claims by the Department. This means that the claimant has the right of appeal to a tribunal and that the Department and the claimant have a subsequent right of appeal to a commissioner on a point of law.
Given the long latency period for the disease, it is likely that most beneficiaries will fall into the older age cohorts. As most mesothelioma cases result from exposure to asbestos in the workplace, the majority of beneficiaries are likely to be males who were formerly involved in heavy industry or the building trade. It is also likely that many of those who contract the disease from para-occupational exposure — for example, from washing their partner’s clothes — will be women, and the draft Bill will be of particular help to that group. The Department has carried out an equality impact assessment, and no adverse, or potentially adverse, impacts were identified.
The draft Bill could be said to be highly beneficial, and it aims to get real financial help to people within the final months of their lives and within weeks of diagnosis.
The Chairperson:
Our research paper indicates that there are approximately 1,800 cases in the UK as a whole. Would that mean that on a pro rata basis that there are 50 or 60 cases in Northern Ireland?
Mr J O’Neill:
The average number of deaths from mesothelioma is probably between about 40 and 50 a year in Northern Ireland. The number is expected to peak between 2011 and 2015, given that, from the 1970s onwards, measures were taken to deal with the asbestos problem. Because of the long latency period of many asbestos-related diseases, cases are still arising because of exposure at that time.
The Chairperson:
When you say “peak”, what would you expect the number to become?
Mr J O’Neill:
We do not know, because there will still be cases to emerge of exposure to asbestos. Those will be fewer because of the measures that have been put in place to protect people from the effects of asbestos. The numbers will decline; statistically, we think that that will happen between 2011 and 2015.
The Chairperson:
You also said that those who had previously applied for other types of benefit or compensation payments would not be included in the scheme.
Mr J O’Neill:
No, they would not, because they would already have received some form of payment.
The Chairperson:
Of the 40 to 50 people to whom the draft Bill applies, is that a gross number of people, or are those who have previously sought compensation excluded?
Mr J O’Neill:
Those 40 to 50 people constitute the average number of deaths each year where mesothelioma is given as the cause of death.
The Chairperson:
Out of that 40 to 50 people, will some not be eligible under the draft Bill because they have previously received payments?
Mr J O’Neill:
That number would cover only those who have established a claim under the various pieces of legislation; what we are dealing with is those people who contract mesothelioma but do not have an avenue because they did not contract mesothelioma through exposure at work — for instance, a wife who washed her husband’s clothes or a child who played with the father’s overalls.
In the construction industry in the 1970s, many people moved around from site to site and worked in squads, so it is difficult to establish who the employer was at the time of exposure. Furthermore, under this scheme, we will be dealing largely with newly diagnosed people.
Mr Burns:
The problem of how people contracted asbestosis is complicated by the fact that bombs were exploding all over Belfast at that time, when the disease was at its most dangerous. Asbestos fibres were in the air, and anyone could come into contact with them. The disease may lie dormant for 20 to 30 years before it is diagnosed.
When people eligible for this scheme visit their doctor and are diagnosed with mesothelioma, they are entitled to receive a £6,000 lump sum on top of the benefits that they would otherwise receive. As Mr O’Neill said, the life expectancy of those afflicted is very limited.
Mr J O’Neill:
Medical authorities on the subject state that life expectancy varies from 12 to 18 months, but the average is generally about nine months after diagnosis.
Mr Burns:
Is the purpose of the draft Bill to make it easier for people to receive money?
Mr J O’Neill:
There are already avenues for that. The draft Bill aims to help people to receive payment more quickly and to extend eligiblity for payment to certain groups. At present, mesothelioma payments are based on occupational exposure. Often, people have had contact with blue asbestos, which gives rise to mesothelioma through work. However, wives and children may contract the disease, as I described earlier. There is also the issue of workers in the construction industry who moved from site to site. We hope to extend payment to both categories through the draft Bill and to get payments to them faster.
Civil compensation claims can take several years, and people receive no compensation payment in the meantime. This measure will get money to those people in the short period before death. We will recover the money from any future civil compensation awards. However, those affected will receive the money while they are still alive and pay for any extra services that they may need.
Mr Burns:
When will the draft Bill take effect?
Mr J O’Neill:
The draft Bill is part of the Child Maintenance and Other Payments Bill which is passing through Westminster: the Westminster Bill may receive Royal Assent at the start of June. It is the Minister’s intention to seek accelerated passage, which would enable us to make payments before the end of the calendar year — we would hope by October. Anyone diagnosed between now and the end of the year will receive a payment.
The Chairperson:
Do you envisage a backlog of applications building up, or will the number of applications be small?
Mr J O’Neill:
We do not know exactly how many applications there will be; people have been exposed other than through employment, so there is potential for claims to be made. A problem is that, sometimes, mesothelioma is only diagnosed post-mortem , when it may be confirmed as the cause of death. The figures for mesothelioma include diagnosis after death.
The Chairperson:
Will payment under the terms of the draft Bill impact on those who are currently in receipt of other benefits? Might the £6,000 payment take their savings over a capital threshold that debars them from a benefit that they receive currently?
Mr J O’Neill:
That may be the case with respect to income support. However, if life expectancy is nine months, it is unlikely that —
Mr Gerry McCann (Department for Social Development):
I doubt that it would have a significant effect. It is only £6,000.
Ms Doreen Roy (Department for Social Development):
It is a small amount.
Mr G McCann:
It could have an effect if the beneficiary had money in the bank already, which could take them over a capital limit.
The Chairperson:
Just to clarify that: if the applicant had money in the bank, the payment of £6,000 might render him or her ineligible for benefit if it took their savings over a capital threshold.
Mr G McCann:
Yes, that could happen.
Ms Roy:
All income must be taken into account.
Mr Brady:
Surely, in a sense, that defeats the purpose of giving money to those people — presumably, to make their last months easier — if they will suffer the stress of their benefits being reduced?
Mr J O’Neill:
Some people may be retired and on a pension. The period of development of mesothelioma can be 20, 30 or 40 years, and people exposed to asbestos in their 20s or 30s are likely to develop the disease in old age. Those people who have money beyond existing capital limits will not be affected by the additional £6,000; it will affect only people who are close to the margin of the capital limits. Moreover, people with little money will not go above the limit if they receive the £6,000.
Mr Brady:
The pension system here is so mean that most people rely on pension credit, and, if they already have money, that might tip the scale. It is a contradiction in terms.
Mr J O’Neill:
In relation to pension credit, we intend to treat it in the same way as any other compensation payment. However, pension credit is revised, perhaps, only every year and, therefore, the nine-month lifespan might not take effect.
Mr Brady:
It may not make sense if it will affect them only for nine months.
Mr J O’Neill:
The measure only affects a small number of people. Of the 40 to 50 people who currently die from mesothelioma, many will have an existing source of compensation. This measure aims to help those who do not fit into that category.
Mr Brady:
Whether it affects one person or 2,000 is not important; the effect that it has on the individual is important. It could fail to achieve its objective.
Mr J O’Neill:
Yes, in theory, it could.
Miss McIlveen:
Can families claim post-mortem?
Ms Roy:
Yes, they can.
Miss McIlveen:
Is there a time limit?
Mr J O’Neill:
Yes; it is one year.
The Chairperson:
There is a possibility that a small number of people — perhaps only about 40 or 50 — might consider it a disincentive to apply for compensation because, in doing so, their personal circumstances may be disadvantaged in the few remaining months of their lives.
Mr J O’Neill:
That would arise if a person applied for compensation under the 1979 Order, or any form of compensation.
Mr G McCann:
That would be the same if a person applied for compensation from an ex-employer, and so on.
Ms Roy:
The aim of the draft Bill is that the individual receives compensation more quickly. However, as regards benefits, any compensation must be considered on the same terms.
Mr Brady:
Are you saying that it is the effect of the condition rather than the cause that the draft Bill addresses?
Ms Roy:
Yes, we are.
Mr Brady:
Therefore, essentially, tracing the cause can be a long process involving civil action, and so on. Presumably, the person could be dead or practically dead by the time he or she is diagnosed. Therefore, it may not be beneficial to the person. Various benefit payments may be affected, so there may be a disincentive.
Mr J O’Neill:
It will benefit people without money and give them a sum of money to use before death. The difficulty, particularly in the construction industry, is tracing the employer or an insurance company that was in existence at the time and, therefore, civil compensation claims can take a while.
Mr Brady:
It is a long-drawn-out situation. Two of my cousins worked with asbestos as part of a summer job when they were 15 or 16 years of age, and they died in their 50s — [Inaudible.]
The Chairperson:
Mr O’Neill, you indicated that the Minister will seek accelerated passage and will, therefore, address the Committee on that. I imagine that members will question the Minister on such issues. Overall, the draft Bill is a welcome development and of particular assistance to people in those circumstances.