APPENDIX 1
Memorandum submitted by Coalfield Communities
Campaign
1. COALFIELD
COMMUNITIES CAMPAIGN
(CCC)
1.1 The Coalfield Communities Campaign (CCC)
is the all-party association representing more than eighty local
authorities in the present and former coalmining areas of England,
Scotland and Wales. The coalfields in total include around five
million people. Since its formation in 1985, CCC has played a
pivotal role in promoting the economic, social and environmental
renewal of areas affected by mining job losses.
2. CCC INVOLVEMENT
2.1 As a local government body from coalfield
areas, CCC representatives have inevitably had to deal on a daily
basis with the legacy of the coal mining industry. Part of that
legacy is associated with the coal health compensation schemes.
2.2 When the court cases were won and the
two main compensation schemes were set up, CCC was pleased that
the Labour government was in the process of putting right some
old wrongs and properly compensating miners for the damage to
their health inflicted as a result of working in the coal industry.
2.3 Unfortunately, the message our local
councillors have been getting for some years was that the way
the schemes are administered is resulting in much frustration
and bitterness.
2.4 With regard to the respiratory disease
scheme, after the first year or so when the administrative machinery
struggled to cope, successive ministers, the DTI and the organisations
under them have worked hard to improve matters. There were huge
difficulties delivering the biggest schemes of their type in the
world. There are also so many complexities within the Claims Handling
Agreement that it is not surprising problems have arisen.
2.5 Now, some eight years after the court
cases, both schemes have paid out around £2.3 billion in
total (DTI Press Release 24 January 2005). No one should play
down the significance of this for former mining areas. Many ex-miners
or their families have received compensation and in many cases
they will be satisfied with the outcome.
2.6 Nevertheless, in general, people in
the coalfields remain dissatisfied with the way the schemes have
been operating. Despite the hard work of all agencies and the
progress made in getting the administrative machinery to work,
problems persist. The DTI has been keen not to dwell on the problems
and appeared to take the view that it is just a matter of letting
the administrative machinery do its job. It was not until after
the scheme closed and the true size of the task ahead became clear
that the DTI was moved to look again at the Handling Agreement
and what could be done to expedite matters.
2.7 The Hand Arm Vibration Syndrome/Vibration
White Finger (HAVS/VWF) scheme has had a lower public profile
and less apparent controversy. Nevertheless, there are also some
outstanding areas of concern within the HAVS scheme, mainly associated
with Group 3 claims and the burden of proof required to establish
a claim. In common with the respiratory disease schemes, these
concerns have been expressed repeatedly by claimants, solicitors,
the Monitoring Groups, not just CCC.
3. RESPIRATORY
DISEASE SCHEME—OUTSTANDING
ISSUES
3.1 In January 2004, according to Hansard,
there were 34,306 settlements for less than £1,000. That
was some 26% of all settlements at that time. If that rate were
to be applied to the total claims submitted (560,000) there could
have been the prospect of over 145,000 claims settled for less
than £1,000. Because of the recent Fast Track proposals,
that will not now happen because fewer claims will go through
the full Medical Assessment Procedure (MAP). In January 2005 the
DTI assessed that there were 9,000 low value offers outstanding.
3.2 Low offers and low settlements remain
a central concern of CCC. This has been for three reasons. Firstly,
offers have been made as compensation for respiratory disease
that has occurred as result of working in the coal industry. Having
won the right in court to compensation, an ex-miner with lung
damage should be entitled to a fair payment no matter what other
contributing factors are taken into account. Secondly, low offers
clog up the system because claimants are unwilling to settle.
Thirdly, these low offers are out of all proportion to the amount
of resources used to process the claims and the amount of money
going to the organisations involved. Reported in Hansard in March
2004, solicitors were being paid £2,000 for a claim that
was worth only £200 to the claimants. This does not take
into account the bill for the services of other contractors (Capita/IRISC,
Atos Origin/Sema/Healthcall). It is unhelpful to create an impression
that the claimants themselves benefit from the schemes the least.
The case for a minimum payment
3.3 CCC, solicitors (including the Claimants'
Solicitors Group) and Members of Parliament have all made the
case for a minimum payment. The basis of this argument has been
that there is both a moral and a practical case to make a minimum
payment where damage to the lungs from working in the mines is
established.
3.4 CCC contends that by rigidly applying
the Handling Agreement and the mathematical formula that is supposed
to work out a fair apportionment of liability, offers are made
that do not come near to those routinely offered in County Court
settlements.
3.5 For every low offer made in the coal
health schemes for respiratory disease, hundreds of other County
Court settlements could be used to demonstrate the inequity. Two
examples as comparators are included here but these are not unusual.
3.6 Case 1—an ex-miner with 13 years
in the coal industry in Derbyshire was found to have chronic bronchitis
and his un-apportioned award assessed at £5,304. Using the
Handling Agreement calculator the recoverable proportion (taking
into account smoking) was just 0.31% of the total, resulting in
an offer of £17.64.
3.7 Compare this to a 46 year-old woman
in Taunton was awarded £925 for a lumber strain as a result
of a minor road accident. She has some time off work but was fully
recovered in 12 weeks.
3.8 Case 2—an ex-miner with 13 years'
underground service in County Durham was offered £33.36 due
to 24 years of average smoking being taken into account.
3.9 Compare this to a publican who was sued
by a customer for a small cut to the little finger of a child
from broken glass. The child was left with a half a centimetre
long, faint scar and was awarded £962.05p.
Fast track and minimum payments
3.10 For many years the DTI defended the
Handling Agreement and therefore saw no problem if thousands of
claimants were offered compensation of less than £1,000.
In many cases the offers were for much less—sometimes just
a few pounds. More recently with the fast track scheme, the DTI
has demonstrated a willingness to be more flexible in order to
address the problems of so many claims and the potential work
load for many years to come.
3.11 The new Fast Track or Risk Offer proposals
try to balance fairness with expediency just as CCC has argued.
If a claimant is found to have some lung damage as result of working
in the coal industry he will now be compensated for no less than
£1,400. The bottom tariff for deceased claims is £1,000
for estates and £1,200 for widows.
3.12 Under the new Fast Track scheme—the
same ex-miners referred to in the previous examples who were offered
£17.64 and £33.36 would have been offered £1,400.
3.13 Yet in the DTI Report to court of January
2005 it is categorically stated:
"The Department has made it clear that public
money will not be used to fund a minimum payment." (Paragraph
44, page 11.)
3.14 The DTI is therefore not considering
introducing any type of minimum payment outside of the Fast Track
option, either for claims still in the system or retrospectively.
3.15 Instead the DTI have focused on the
solicitors' proposals to top-up payments to a £500 minimum
using a proportion of their own fees. CCC would not wish to dissuade
the solicitors from making a contribution in this way, but this
is a reflection of the embarrassment they feel because the scheme
has produced such derisory offers in the first place. Solicitors
should not be put in such a position.
3.16 The Government took over the liabilities
of British Coal, therefore it is the obligation of the DTI to
address this issue and not the solicitors. By supporting a minimum
payment on the proviso that someone else pays, the DTI is side
stepping its responsibilities.
3.17 CCC takes the view that the Handling
Agreement produced unfair results at the bottom end of the compensation
scale and that it is neither a misuse of public money nor does
it set a dangerous precedent to make the necessary changes to
accommodate a minimum payment.
3.18 Taking into account the money already
offered, the overall cost to the Government would be relatively
modest and only a fraction of the many billions of pounds involved
in the schemes overall. With regard to minimum payments, it cannot
be fair to have such a discrepancy between very low settlements
under the full MAP scheme and the current minimum of £1,400
for live claims under the Fast Track option.
Surface only claims
3.19 The longstanding issue of claims for
coal mining employees who only worked on the surface appears no
nearer a satisfactory resolution. Although the number of mineworkers
who may wish to claim in this category is relatively small, the
DTI and its solicitors have resolutely defended their exclusion
from the scheme. This position was adopted based on their interpretation
of an expert medical opinion.
3.20 After the Judge gave leave for the
Claimants' Solicitors Group to search for evidence in British
Coal records, prospects for real progress improved. However, faced
with financial risks associated with group litigation, the CSG
have not proceeded.
3.21 Although this issue has been back and
forth between the various parties involved, the basic argument
remains the same. It is universally accepted that a great deal
of airborne dust was generated in coal preparation plants and
coke batteries. Records of the levels of dust were not routinely
kept, therefore finding evidence to support claims has been more
difficult. Nevertheless, there is an established causal link between
coal dust and respiratory disease. It is not surprising therefore
that the question continues to be asked—why was British
Coal (and now the DTI) found liable for exposing its underground
workers to harmful dust but not those who worked in dusty conditions
on the surface?
3.22 In Hansard (27 January) the DTI minister
gave an undertaking to examine the position once more. CCC welcomes
that and hopes that justice can be done for this excluded group
of mineworkers.
4. HAND ARM
VIBRATION SYNDROME
(HAVS) OR VIBRATION
WHITE FINGER
(VWF)—OUTSTANDING ISSUES
4.1 The HAVS/VWF scheme was closed at the
end of October 2002. Yet only 60% of the claims have been settled.
This is in part due to the continuing wrangle about denials of
Group 3 claims and in part due to outstanding "services"
claims. The current and long running argument is mainly about
burden of proof. A claim is placed in the Group 3 category if
the assigned job did not involve using the relevant vibrating
tools. An assumption is made that because it was not in the job
description the claimant cannot have used the tools and they are
automatically denied. Claimants then have to find evidence to
prove otherwise.
4.2 The English Monitoring Group has consistently
challenged the approach of the DTI and its claims adjusters to
Group 3 cases. A dossier containing seventeen examples was submitted
by the English Monitoring Group in 2003. The intention was not
to resolve the individual cases but to demonstrate that the adversarial
approach of the DTI and its contractors was biased against the
claimant.
4.3 Denials have been based on misunderstandings
about mining practice and an assumption that claims in the Group
3 category were less legitimate than others. There is a requirement
for claims to be supported by evidence from two witnesses. This
is very difficult to achieve especially with older or deceased
claimants. Capita/IRISC have discretionary powers to settle for
less evidence but have, by and large, chosen not to.
4.4 Where evidence is produced by claimants
and backed up by witness statements, it appears to have little
validity in the eyes of Capita/IRISC adjusters. The role of the
claims adjusters is key to the problem with many of these denials
and there is a continuing argument about the written guidance
they use to make assessments.
Some examples of injustice
4.5 Case 1—The claim was denied of
a shift charge engineer (electrical) who worked at Murton colliery
in County Durham. The IRISC claims adjuster asserts that the claimant
could not have used any vibratory tools because he was too busy
doing other work and could have deployed someone else to use the
tools if necessary. Witness statements from fellow workers of
the claimant were ignored.
4.6 Case 2—A coal face overman worked
at Horden colliery (County Durham) for 35 years. His claim for
vibration white finger was denied because using the specified
tools was judged not consistent with the job of a face overman
despite witness statements to the contrary.
4.7 Case 3—A miner from Maltby colliery
(Yorkshire) was denied, then reviewed, then denied again despite
the fact that his training records and an accident report clearly
showed him to have worked as a face ripper during part of his
post-1975 service. Ripping is a Group 1 occupation and involved
regular use of the specified tools.
4.8 Case 4—A worker at Duckmanton
workshops in Derbyshire was denied a claim despite his boss confirming
he often used vibrating tools. After his local MP took up the
matter with two DTI ministers, IRISC agree to look at it again
and an offer was made.
4.9 Such cases are commonplace in HAVS/VWF
denials. Very often the success or failure of the claim comes
down to vague assertions about mining practice and the assumption
that "one man one job" was the universal code of all
mineworkers. On the contrary, the very nature of mining meant
that tasks were interchangeable and that difficulties were overcome
by teamwork with the use of all kinds of tools, including compressed
air tools or similar.
4.10 Several thousand Group 3 cases were
eventually re-examined by Capita/IRISC. A significant proportion
of the re-examined cases were found to be in fact Group 1 or 2
cases ie in occupational groups eligible for compensation. This
demonstrates that many initial denials were made with little reference
to the evidence.
4.11 It is a recurring theme at Monitoring
Group meetings that Capita/IRISC have not always followed the
correct procedure or have missed some important information. Missing
information or no record of letters received, for example, may
seem fairly trivial administrative matters but, taken as a whole,
they give the impression that claims are being blocked rather
than simply processed.
4.12 There can be no winners if these claims
are allowed to drag on for years, costing the taxpayer much more
than if reasonable settlements were made based on the balance
of probabilities. The approach of the DTI and the adjusters appears
to have been to stonewall these claims until they become time-barred
or the claimant just gives up. In such circumstances any mutual
trust between parties is lost. The recent concern about the use
of lie detection technology (Hansard, 10 January 2005) only serves
to reinforce claimants' perceptions.
5. IN CONCLUSION
5.1 Throughout the life of the coal health
compensation schemes there should have been a willingness on all
sides to adapt to a developing situation. After all it was entirely
new territory, particularly with regard to the volume of claims
for respiratory disease. It is only by learning lessons and then
implementing sensible policy solutions that a satisfactory outcome
can be achieved.
5.2 Ministers and the DTI have responded
to developments and taken action to move matters forward. It bears
repeating that these schemes were huge and, with the best will
in the world, many difficulties would have to be overcome. Yet
an element of an adversarial approach remains.
5.3 The assertion that the DTI cannot use
public money to help fund a minimum payment flies in the face
of common sense. The Handling Agreement has been modified to address
practical issues and it can be modified to provide a minimum payment
for all. The new fast track proposals demonstrate clearly that
there is sufficient flexibility in the system and that there need
be no precedent set for industrial disease and injury benefits
outside of the scheme.
5.4 A similar willingness to balance fairness
and expediency for surface only claims and the remaining outstanding
issues in the HAVS/VWF scheme would go a long way to resolving
problems and make faster progress towards completion of the whole
process for both schemes.
February 2005
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