Examination of Witnesses (Questions 620-628)
19 MAY 2004
RT HON
JANE KENNEDY
MP AND MR
GARETH WILLIAMS
Q620 Miss Begg: If I could move on very
briefly to rehabilitation. Certainly I get the sense that it is
still a poor relation in regard to the responsibilities for employers.
It is still easy for an employer to consider early retirement
and move people out of the workplace and on to Incapacity Benefit.
I suppose that is where the HSE being part of the Department of
Work and Pensions, as you have already said, makes life easier
because you can get a much more rounded view of what has happened
to an individual. Rehabilitation is still not used as much as
it should be. I am not convinced that employers necessarily think
of that as a way of retaining them. Quite a number of witnesses
have suggested that there should be a stronger requirement on
employers and I think in your Revitalising Strategy, Action
Point 31, that the HSC would consult on whether the duty on employers
under health and safety law to ensure the continuing health of
employees at work, including action to rehabilitate where appropriate,
can be usefully clarified or strengthened. Now I understand that
this morning you have published something called Framework
for Vocational Rehabilitation?
Jane Kennedy: Yes.
Q621 Miss Begg: Is that Action Point
being taking forward in that new publication?
Jane Kennedy: The consultation
that was launched today arises out of the work of the review on
employer's liability compulsory insurance. When an employer does
not consider rehabilitation for an employee, that employee very
often—as Gareth has hinted—ends up the recipient of
the Incapacity Benefit and then we have to work with them to find
an alternative means of work. The employer loses a source of experience
and skill that they have benefited from over the years. We do
think much more can be done. The aim of the consultation on the
Framework is to hear from the stakeholder organisation, those
that will be affected by the publication of it, what their views
of the suggested Framework would be with a view to publishing
in late summer a final Framework which would be used then to take
forward this whole agenda.
Mr Williams: I think, again, it
is an example of an area where in the past year there has been
a real sea change in terms of the culture and the climate. People
have been beating down our door to discuss this issue, whether
from the employer side or from employee representatives. I think
the point you are saying about people see it as an easier option
to pension people off, it is a real issue and in part I think
it is because a lot of the costs around rehabilitation are not
pursuing rehabilitation, they are hidden costs that are not immediately
apparent. In part it is around what we were discussing earlier
about where do you turn for these services? There is a bit of
a chicken and egg thing here. Is there presently the capacity?
At the moment we have neither the demand there should be nor the
capacity stepped up and we need to move both forward together.
What we are essentially seeking to do in the Framework is to make
the case for rehabilitation, to set out more clearly what the
costs and benefits are to employers to expose a lot of the evidence
that exists on the effectiveness of particular interventions or
approaches and to assist employers in knowing where to turn or
how to go about setting up these kinds of services for their employees.
Q622 Miss Begg: Obviously if the cost
is not to the employer, the cost is certainly to Government because
the Government will pick up the cost either in the NHS or in the
Department of Work and Pensions in the benefits system.
Mr Williams: Overwhelmingly the
cost is to the employer. We had the mention earlier of the Industrial
Injury Disability Benefit, and actually the ratio was wrong between
the funding. If you look at the make up, only about 10,000 cases
a year are new cases being paid through IDB rather than legacy
cases. If you compare that to the number of claims that are moved
under civil suit, where the cost falls to the employer, it is
176,000 a year. Employers, until the insurance premiums were adjusted,
have never seen the full economic costs of this being recognised
in their bottom line, the premiums they pay out. It has been a
bit of a sledgehammer approach but the change in premiums has
now focused the attention on the true costs to employers of getting
this wrong, of not pursuing restitutive responses as opposed to
buying people off or pensioning people off. That is why, I think,
there is now such an interest in this agenda.
Q623 Miss Begg: Can I ask whether you
are in discussion with the Department of Health in regard to increasing
the number of physiotherapists and occupational health workers
in the NHS, but obviously you need to feed a private sector in
this, particularly having discussions with regard to the training
and increasing the numbers? You did say there is already a shortfall,
how will that be solved in the short term, or indeed in the long
term?
Mr Williams: Do you want me to
answer?
Jane Kennedy: Yes, go ahead.
Mr Williams: I think it is one
of the elements we pick up or are looking to pick up in this Framework
for Vocational Rehabilitation. The supply is low at the moment
in terms of the availability of these services but that may be
a function of the fact that demand is low because there has not
been the take up of occupational health or the approach to rehabilitation
that we would like to see. It may be a case of moving one in step
with the other. That is why as part of the Framework we are working
with the trade associations, the representatives of the occupational
health service providers. I do not think you can do either: set
up and encourage a structure of occupational health service provision
without the market to support it or create the demand without
looking ahead to how you are going to meet that demand through
the encouragement of provision. In the work on rehabilitation/occupational
health they are trying to strike the balance of doing both in
tandem.
Jane Kennedy: I saw a superb example
of a rehabilitation service in a Young Offenders Institution in
Northern Ireland when I was security minister. It started as a
unit designed using occupational and physiotherapists to work
with young men who were in the institution as inmates serving
sentences for a range of different crimes, many of whom had been
injured by paramilitary organisations outside and therefore needed
physical rehabilitation. Increasingly members of staff would knock
on the door of the occupational and physiotherapists and say they
had ricked their back or done themselves an injury and this service
has now developed into something quite remarkable and I think
quite a model. They keep it a very well kept secret because it
is so good.
Mr Williams: It is also an area,
coming back, again, about linkages between HSE and its work and
the wider work of the Department, where there is very much a working
in step in that what we and HSE are seeking to do with employers
and insurers on occupational health and rehabilitation is very
similar to the approach that we are seeking to develop in relation
to Incapacity Benefit and the clients there, for instance under
the Pathways to Work pilots.
Chairman: Can we conclude with a couple
of questions about the international dimension. Joan Humble?
Q624 Mrs Humble: It is quite appropriate
really to ask questions about Europe at this time. In your evidence,
Jane, you do acknowledge that the European Commission is alleging
that the UK Government is under implementing the Framework Directive
because of the use of the phrase ". . . so far as is reasonably
practicable . . ." in our legislation. What is the latest
update?
Jane Kennedy: If I can give you
a broad response and then you can tease out further detail, perhaps.
We are pursuing an approach represented by the Health and Safety
Executive to the discussions with our European partners based
on the set of principles that we have agreed with ministers. Those
principles are these. First of all, to ensure that the European
Union Health and Safety Legislation is as similar as possible
to UK domestic legislation in order to minimise the number of
changes, obviously, to which both sides of industry here would
have to adjust. Our further aim is to incorporate, wherever appropriate,
a goal setting rather than a prescriptive approach, that may disappoint
some Members of your Committee. The third aim is to press for
a period of consolidation and consistent implementation of existing
legislation rather than for a whole raft of new proposals. Finally
the point, I think, is that we have now established a code of
European law on health and safety. Now we all need to work together
to ensure that is applied effectively across all Member States.
I think it is important that we afford everybody across Europe
equivalent levels of protection. I do not know if that answers
the specific point? Do you want to add anything, Gareth?
Q625 Mrs Humble: I have got a question
to come in on so can I get that question in before we end and
then, Gareth, you can make any other points. You are quite right,
Jane, in identifying the fact that many of those who have given
evidence to us would prefer our legislation to be more prescriptive
but ironically we have also had people who are saying "There
are some directives coming out of Europe which are not being challenged
and should be challenged and what are we as a Government doing
about then? Is the HSE challenging some of them?", for example,
the issue of whole body vibration and electromagnetic fields.
We have had some concern expressed that if we get more of these
European directives along these lines it will especially have
an impact upon smaller businesses and how they are going to cope
so that is the other side of the argument.
Jane Kennedy: Yes.
Q626 Mrs Humble: What are we doing about
that?
Jane Kennedy: Can you answer about
reasonably practicable as well?
Mr Williams: Yes, certainly. I
think we accept the point and the converse of the points being
made earlier is that many small businesses would not regard this
as a field which was under-regulated. There are elements of that
directive, for example, where the Health and Safety Commission
has said we do not see that there is a health benefit to the implementation
of this directive. What we are trying to do and what they are
trying to do is work within Europe along the Regulatory Impact
Assessment model that we use domestically in order to get more
clarity about what the purpose is of individual directives and
what their cost benefit is and to instil that discipline at a
European level. They fight our corner on that in European negotiations.
Clearly there is give and take around the outcome of that. So
far as reasonably practicable, we are in the position where we
think the approach adopted in the UK within the context of UK
law, which adopts different principles from European law, is robust
and we think when you look at comparative performance across the
European Union that it has demonstrated its value in terms of
the respective performance for the UK. We have responded to the
Commission and we await their response to that.
Q627 Mr Dismore: First of all, I am surprised
it is reasonably practicable because in practice that is not what
is happening, is it, in the UK, because the directives themselves
can be directly enforced against emanations of the state. So effectively,
going back to the discussion on Crown Immunity, as far as civil
liability is concerned, the state has a higher standard being
applied to it than the average non state employer so you have
an inconsistency there. The debate has always been that we should
be enforcing the Act as it stands. I do not believe that the higher
standard imposed by the directive has created any particular problems
for emanations of the state so why should it for private employers.
Jane Kennedy: We hear what you
say is probably the best answer to give you on that.
Q628 Chairman: Can I say that it is obviously
perfectly understandable that some of the evidence you have been
able to give us this morning is slightly tentative because you
have only recently taken the responsibility for the job. You would
be wrong, I think, from your own point of view not to reserve
your positions on these things and to give it a bit more thought.
As a Committee, we are seized with the importance of this. It
is an important report for us and I hope that our recommendations
will be positive, robust but positive, and try and strengthen
your hand to try and deal with what is obviously an increasingly
important area of public policy. I am sure you are aware of that.
We look forward to the Government response when the report is
published in due course. Thank you very much for your appearance
this morning.
Jane Kennedy: Thank you. Can I
say a special thank you to Gareth for the sterling work that he
has done.
Chairman: Indeed. Thank you to Gareth
too. We wish him well in his new career, wherever that may take
him.
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