Fast-track offers for COPD
35. The Judge overseeing the scheme, the DTI and
the CSG all agreed that the current rate of progress with COPD
claims was unacceptable and the parties entered into negotiations
on ways to speed up the settlement of claims. With effect from
28 February 2005, live claimants under the COPD scheme have been
able to obtain 'fast-track' offers after a Spirometry test, with
the intention that the settlement process should be accelerated
for suitable claimants. Under the 'fast-track' arrangements, following
the Spirometry test a claimant would be classified under one of
four categories. He would then have the option of accepting a
payment based on the average for his spirometry category in settlement
of his claim. Those who do not wish to take the payment retain
the right to a full medical assessment. It has been estimated
that 100,000 live 'fast track' offers could be made in the first
year of operation.[69]
36. In addition to live fast track offers, the Court
has ordered that in posthumous cases where there is no indication
of COPD on a death certificate ('category 3' cases), widows and
families of deceased miners should be able to obtain 'fast-track'
payments if they wished to do so. The DTI intended that widows
would be offered £1,400 under these circumstances, while
other relatives would be offered £1,000. 'Deceased' claims
where the death certificate did give an indication of COPD would
still proceed through the full medical assessment process without
a fast track offer. It was estimated that as many as two-thirds
of the remaining posthumous claims could be eligible for a 'fast-track'
offer.[70] At the time
of our inquiry, no date had been set for the introduction of this
particular 'fast-track' scheme.
37. The Coalfield Communities Campaign supported
the concept of voluntary 'fast-tracking'.[71]
While the CSG agreed to the principle, it had complaints about
the way in which the 'fast-track' schemes were developed and doubts
over some of the details of the schemes and how effectively they
would be administered.[72]
The CSG told us that the 'fast-tracking' concept had developed
from a previous 'expedited payment' scheme which had worked quite
well.[73] However, in
September 2004 the DTI had introduced a proposal that fast-tracking
should be compulsory. [74]
Under this proposal, claimants would have to resort to the common
law process if they did not wish to accept the Department's offer.[75]
The English Monitoring Group told us that, in the event, following
strong representations from the Ministerial Monitoring Groups,
Members of Parliament and claimants' representatives, the Department
withdrew its proposal.[76]
38. For the DTI, the Minister told us that the Department
had consulted interested parties on a compulsory scheme simply
because the Court had ordered it to do so. Having taken soundings,
it had decided not to proceed with the scheme on a compulsory
basis.[77] Ann Taylor[78]
explained that the compulsory scheme would have covered only those
claimants whose respiratory function was normal on spirometry
testing. She claimed that only about 6 percent of those people
would have been found to have a disability during the full medical
assessment process. Since the compulsory scheme had been abandoned,
the fast-track concept had been widened to include many more claimants.[79]
39. The CSG representatives were also unhappy that,
at the time they gave evidence, they were still in dispute with
the DTI over the size of compensation to be paid and solicitors'
fees just days before the introduction of the 'fast-track' scheme
for live claimants, and the uncertainty over the timing of the
introduction of the scheme for widows and other family claimants:
"The DTI appears to have been content to let
the Court rule upon the substance of the 'fast track' offer and
associated costs to be paid to claimants' representatives, rather
than to engage in substantive negotiation, whether over the fast
track tariff of payments or costs or over the important matters
of detail that require to be ironed out so that the 'fast track'
procedures might be introduced speedily and effectively."[80]
40. The Group was also doubtful that the level of
compensation proposed by the DTI for widows and family claimants
would be sufficient to encourage the acceptance of 'fast-track'
offers, and thereby accelerate progress towards completion of
the task.[81]
41. We welcome the development of the 'fast-track'
approach to the problem of clearing the backlog of COPD claims.
It will give claimants the option of settling their claim quickly
or pursuing their case through the full assessment procedure,
with the delay that this might entail. It should also reduce the
demand for those assessment procedures and allow assessment resources
to be focussed on the cases that need them. We are concerned,
however, that the DTI and claimants' solicitors have failed to
resolve their differences over issues such as fees and payments
to claimants. It is in the interests of claimants and taxpayers
that these differences are resolved quickly and without recourse
to the courts.
Compensation for surface workers
42. We were told that, despite prolonged pressure
from the Monitoring Groups and claimants' representatives, the
DTI had refused to accept claims from workers whose duties were
performed above ground or who spent less than five years working
underground.[82] The
Department justified its position on the basis of the opinion
of its medical experts who, as Nick French[83]
explained, had advised that on the basis of the evidence available
on surface dust exposure, the levels of breathable dust on the
surface would be too low to cause COPD in all but the most extreme
susceptible cases.[84]
The CSG told us that it had obtained records which demonstrated
that dust levels could reach "quite high levels" in
coal preparation plants, but those records were insufficiently
comprehensive. One explanation for this was that the respiratory
dust regulations applicable at the time did not require the National
Coal Board and, subsequently, British Coal to monitor dust levels
on the surface.[85]
43. The CSG estimated that 3,500 to 5,000 people
were affected by this decision. Group litigation on their behalf
had been ruled out when the DTI refused to waive its right to
legal costs if it won the litigation, thereby exposing the claimants
to significant legal costs.[86]
The Minister pointed out that it was open to an individual to
take a civil legal action on his own behalf,[87]
but the CSG felt that the potential costs of such an action would
be prohibitive.[88] The
Group felt that resolution of the problem was not a legal issue:
it was more of a moral and political question. Peter Evans compared
the small number of potential claimants in this category with
the total number of claimants in the VWF and COPD schemes:
"We estimate that between 3,000 and 5,000 people
are affected by this in a scheme which now has over half a million
people registered and it is worth contrasting with what is known
as the 'rest of the world' protocol. You could be in Venezuela
and make a claim under this scheme if you had been employed in
a British coalmine but if you were employed on the surface you
cannot. That just does not seem to us to be fair."[89]
44. We were encouraged that, after discussing the
legal arguments against allowing claims from this group of workers
and the correspondence between the DTI and the CSG on this issue,[90]
the Minister gave us an undertaking that the Department would
give "maximum consideration to resolving [the issue]."[91]
We hope that a solution can be found which allows ex-surface
workers to be admitted to the COPD scheme. While we recognise
that the DTI's current position may be legally watertight, it
does not seem to us to be just.
55 Appendix 1, para 3.2 Back
56
Ibid, para 3.3 Back
57
Ibid, paras 3.4-3.6 Back
58
Appendix 5 Back
59
Q 137 Back
60
Q 20 Back
61
Appendix 5; Q 21 Back
62
Q 20 Back
63
Q 24 Back
64
Q147 Back
65
Q 145 Back
66
Appendix 3 Back
67
Q 147 Back
68
Q 25 Back
69
Appendix 5 Back
70
Appendix 2 Back
71
Appendix 1, para 3.10 Back
72
Appendix 5 Back
73
Q 30 (Evans) Back
74
Appendix 5 Back
75
Appendix 8, para 16 Back
76
Ibid. Back
77
Q 136 (Griffiths) Back
78
Ms Taylor is Director of the Coal Liabilities Unit, DTI Back
79
Q 136 (Taylor) Back
80
Appendix 5 Back
81
Q 130 (Evans) Back
82
Appendix 2, Appendix 5 Back
83
Nick French is Assistant Director, VWF Operations, DTI Back
84
Q 150 Back
85
Q 33 (Morgan) Back
86
Appendix 5 Back
87
Q 148 Back
88
Q 33 (Morgan) Back
89
Q 33 (Evans) Back
90
Qq 148-153 Back
91
Q 154 Back
