APPENDIX 8
Memorandum by the members of the English
Monitoring Group
1. Following the Court Judgments which determined
a liability upon British Coal (DTI) for injuries to health caused
by exposure to COPD and VWF, and after the Handling Agreements
had been determined by the parties, the Minister, Helen Liddell
MP, by personal invitation (26.10.99) invited Mr Michael Clapham
MP, Mr Peter McNestry (retired General Secretary of the National
Association of Colliery Overmen, Deputies and Shotfirers), and
Mr Vernon Jones MBE (the Chief Executive of the Coal Industry
Social Welfare Organisation) to become members of the English
Monitoring Group. Similar monitoring groups were established for
Wales and Scotland.
2. The original remit was:
"To review on a regular and transparent
basis and to advise the Minister for Energy of progress with the
implementation of the Handling Agreement on COPD so that communities
concerned can be confident everything possible was being done
to ensure a sensitive, rapid and effective delivery of compensation
to ex miners".
3. The motivation for the Minister to establish
an independent structure to monitor the activities of the Department's
officials in delivering the compensation schemes is a question
for the Minister and not for our speculation.
COPD
4. The Courts determined that there were
likely to be so many claimants under both compensation arrangements
that a method should be found for determining individual levels
of compensation for specific levels of disability outside of a
common-law procedures within Court because the legal system could
not cope with the volumes. A Handling Agreement was negotiated
by the parties for both schemes but they still fall within the
jurisdiction of the Courts. There are regular reporting back hearings
reviewing progress and directional hearings when the Judges, Mr
Justice Turner for COPD and Dame Janet Smith for VWF are asked
to issue orders when the parties cannot agree on solutions to
specific problems. The Handling Agreement for COPD was based upon
anticipated volume claims in the region of 100,000, although the
EMG have never been able to understand from whom advice was taken
to produce such a calculation because it was obvious to those
with considerable experience in the industry that the potential
claims from mineworkers, widows and estates would be considerably
higher as the liability upon the DTI commenced in 1954 given the
number of men employed in the industry on a cumulative basis since
that date. The 100,000 estimated claims had been surpassed by
the 26 March 2000 at a ration of two thirds live claims, one third
deceased.
5. From the outset the EMG asked the Department
for details of the contractual arrangements with the various service
providers, excluding confidential financial information, but this
was denied and it has always been impossible for the EMG to comment
upon whether delivery targets were or are being met. The EMG have
not been involved in any subsequent re-tendering procedures.
6. From initial separate meetings with the
DTI and the Claimant Solicitors Group (CSG) it was obvious that
the whole arrangements were underpinned by an adversarial arrangement,
presumably left over from the Court process. The EMG took the
view that this extraordinarily complicated and large compensation
arrangement would require co-operation between all parties including
service delivery organisations and the EMG were actually the first
to call a meeting to which all parties were invited. This was
to try to obviate a blame culture which had developed whereby
at any meeting where there was a problem this was attributed to
the party which was not present at the meeting. The EMG was not
established until after the Handling Agreement and the registration
process of claims having commenced. The EMG had meetings with
all service providers who were then Hayes (employment record collection),
IRISC, (the claims processing organisation), Health Call (providing
medical record collection services, spirometry, and subsequent
medical examinations by respiratory consultants, whether for live
claimants or purely record based for widows and estates claims.
Business Health Call were visited, the former privatised Medical
Department of British Coal, and in relation to Health Call the
EMG visited their Head Office in London to examine processes and
procedures but also visited all of the major English Spirometry
Centres. Complaints had been received that a number of the technicians
were being over zealous in what they were requiring elderly men
with respiratory problems to do ie to breath harder than their
capacity allowed which in one instance it was alleged had led
to an individual suffering a heart attack. The EMG designed a
form to be used when monitoring the spirometry appointments and
all of the visits were made on an unannounced basis although each
claimants was informed of our role and asked whether he wished
us to observe or did not. Only one individual declined to allow
the EMG to observe. The EMG successfully insisted that Health
Call had a duty of care for all claimants whilst on their premises
and suitable instructions to that effect were issued to all spirometry
centres.
7. The EMG reported that as a result of
these visits they could find no evidence of any technician being
over zealous in the breathing tests, although we did comment on
a number of other issues of concern which were:
(a) One centre (Leicester) was not disabled
friendly in terms of access to the actual building and Health
Call had declined to send out a map making the location rather
difficult. Advice that it was located some 300 yards from the
main rail station did not also say that this was up a fairly steep
rise. The Manchester centre had concentrated entirely on domiciliary
visits to ensure that the most elderly and ill were assessed first,
whereas in complete contrast there were very few domiciliary visits
in South Yorkshire due to the fact that the technicians at Sheffield
had no vehicles. We also commented upon the suitability of some
of the places being used ie Pontefract Hospital where car parking
was extremely difficult and the actual Spirometry Centre was located
after travelling through very lengthy corridors.
(b) Questions were also raised as to the
rather excessive travelling requirements of claimants based in
Leicestershire and despite repeated requests for the mobile units
to visit Coalville such requests were refused. As the spirometry
test involved two separate tests 20 minutes apart it enabled members
of the EMG to discuss claims with the claimants. One such claimant
interviewed in Barnsley did not understand why he was using a
solicitor based in Manchester other than the solicitors had written
to him at his home address offering their services but he had
never had any contact with this firm but his letter was received
some two weeks after attending his annual medical at the DSS.
8. Complaints had already been received
about the operation of a number of claims handling companies or
claims farmers, one in particular named the Miners' Welfare and
Compensation Agency which was using a title implied to suggest
that it was linked to a charity because there are over 300 Mining
Recreational Charities that are colloquially referred to as Miners'
Welfare Schemes. However, complaints were also being received
about solicitors, particularly in relation to non-communication
once claims had been submitted. From the outset solicitors were
concentrating upon the business activity associated with the Handling
Agreement ie encouraging as many claimants as possible through
both TV and press advertising. The corollary of this is that many
solicitors were not investing in their own infrastructure (staff
and IT facilities) until they had determined what volume business
they had. One firm of Solicitors even sent out a letter requesting
claimants not to ring the office. When Brian Wilson MP was the
Minister responsible he personally witnessed the antagonism felt
by claimants because at a public meeting in Barnsley Town Hall
(19 July 2002), there was no criticism as such of the Department,
only of Solicitors not providing information on the progress of
claims.
9. The fee structure for solicitors provides
no incentive to check or query the calculations for compensation,
other than a solicitor's own professional conduct. Concern is
expressed about the ability of some solicitors to check accurately
compensation levels when they have high volume claims with few
qualifies solicitors. One firm with 80,000 claims only has three
qualified solicitors. There is a marked trend of variance between
the average claims on a solicitor by solicitor basis. This is
a cause for concern.
10. The business nature of the Handling
Agreement which had encouraged the development of claims farmers,
solicitors with advertising and publicity measures which included
fly leafleting whole estates was exacerbated by recent changes
in Legal Aid and the emergence of "no win no fee" agreements.
A considerable number of claimants had signed up to various arrangements
whereby additional fees were being charged or a proportion of
a settlement could be deducted by the solicitor even though the
solicitors had their fees paid by the DTI through a fee structure
initially negotiated through the Handling Agreement and subsequently
updated. The Ministers subsequent letter to all solicitors who
had received fees from the DTI stating that additional fees should
not be charged, and if they had, should be paid back was most
welcome. However, the willingness of the Law Society to examine
complaints brought by MP's has led to the paying back of additional
fees but these requirements are not of a generic basis.
11. The EMG maintained that it was important
within mining communities for there to be an appreciation that
the most vulnerable, frail and disabled should be dealt with first
as a matter of priority and although a priority points system
was introduced this was not operated either by solicitors feeding
claims in a priority or being dealt with by IRISC on that basis.
Having invested what was then believed to be the appropriate resource
levels, IRISC were keen to maintain volume activity and were not
particularly concerned that the priority system was being adhered
to. When Peter Hain MP was the Minister he re-affirmed the need
to ensure that the priority cases were dealt with first and foremost
following home visits made to claimants in the Kent Coalfield,
organised by the EMG, when the Minister saw the level of suffering,
frustration and lack of progress with the system.
12. An initial major difficulty concerned
the employment records because the Handling Agreement was based
upon an erroneous assumption that the employer would have perfect
employment records on every individual that British Coal had employed.
Perhaps the saddest example of this is when the EMG were contacted
by a widow who had received a letter from IRISC stating that there
was no record of her husband's employment in the industry when
she stood possessed of a 51 year Long Service Certificate signed
by Sir Derek Ezra, the then Chairman of the NCB. The EMG saw this
Long Service Certificate. The problem was also compounded because
from the outset when IRISC were requesting employment records
from Hayes they were only being sent the front and back cover
of a training record, if one so existed, whereas for a fee of
£50 solicitors were obtaining from Hayes the entire training
record. Solicitors therefore felt that IRISC were either hiding
or not disclosing information. This tended to add to a generally
held view that the system was designed to slow down settlements
on the basis that men would die before their claims could be settled
and this would in turn save Government money. This slightly erroneous
view was not held by the EMG because the claim could continue
in the widow's name and had the man died a bereavement award would
also have been payable. All Ministers up to that time, namely
Helen Liddlell MP, Peter Hain MP and Brian Wilson MP publicly
stated that financial limitations on the amount of money involved
to settle the claims was not and had not ever featured.
13. The issue of employment records, or
the lack of them or their incompleteness, was beginning to cause
considerable blockages and both on moral and practical grounds
the EMG suggested a significant change. The feeling in the Coalfields
was that the issue of employment records and the need to evidence
employment was producing a culture of "blaming the victim".
Following representations made by the EMG the Minister Brian Wilson
MP accepted that when no evidence existed to the contrary the
statement by the claimant would be accepted in relation to his
employment history. The Minister announced this at the public
meeting in Barnsley on 19 July 2002, and it had an immediate effect
upon unblocking the system. In the early days of the COPD compensation
arrangements much criticism was made by IRISC and the DTI of solicitors
in that there was a considerable time delay between the registration
of the initial claim and the subsequent receipt of claims questionnaires.
The EMG blamed solicitors for this delay in that there was no
personalised service or assistance given to claimants, particularly
widows, in filling in the claims questionnaires, which included
certain questions by definition, which a widow would not necessarily
know. To prove that this non-personalised service was a problem
because up until that date most solicitors had been acting or
dealing with claimants in writing was tested in Yorkshire when
four public venues were booked in Bentley, Dodworth, Pontefract
and Maltby, to which the three major firms of solicitors, namely
Irwin Mitchells, Raleys, and Towells were appraised of seating
capacity of each venue and asked between them to agree which of
their claimants should be invited to attend these public meetings.
The constituency MP's attended each meeting.
14. Each firm of solicitors was represented
at the public meetings and Andrew Tucker from Irwin Mitchells
addressed each one on how the claims questionnaire had to be completed
and the most important comment he made was that if a claimant
particularly a widow, did not know the answer to a question they
could put "don't know". With the help of volunteers
who had been provided many of the claimants completed their claim
questionnaires there and then and the solicitors acknowledged
that a more personable service was required if the whole system
was to run more efficiently. The EMG attended a number of training
sessions provided by the CSG for solicitors and although some
of these were organised long after the system had started it was
evident that many local small firms of solicitors did not understand
the Handling Agreement, the processes involved, or what was expected
of them and their clients.
15. At meetings of the EMG when the CSG,
DTI and Minister were present often delays in settling cases were
attributed to outstanding policy issues. The EMG insisted upon
a list of all the outstanding policy issues, and the name of one
lead individual from the DTI and one lead individual from the
CSG charged with the responsibility of negotiating an agreement,
and by a specific date or if no agreement could be reached an
early referral to the Judge. It became obvious to the DTI that
the management of the process was in difficulty and to their credit
they seconded a logistics expert from Shell, Mr Mark Pyeman to
undertake a review of systems procedures and management accountability.
The EMG insisted that he could only fully understand why systems
had to be improved if he met some of the claimants and witnessed
their frustrations with the process. Arrangements were made for
Mr Pyeman to visit several claimants, both former mineworkers
and widows in the Yorkshire Coalfield. Mr Pyeman informed the
EMG that without their involvement those improvements which had
been introduced would not have been introduced on the time-scale,
if at all, and he was going to recommend to the Judge that the
role of the EMG should be expanded. He stated that the Monitoring
Groups in Scotland and Wales were performing well because of their
smaller geographical areas and less solicitors involved, albeit
with high levels of claims. He suggested that the EMG, through
the DTI, establish smaller regional sub-groups to address perhaps
more localised issues and bring them to the attention of the EMG.
These sub-groups were formed and a member of the EMG has attended
each regional meeting. In addition the EMG wrote to 572 English
solicitors dealing with claims informing them that the EMG could
be used as a vehicle for examining points of principle but not
individual cases. The DTI have been faced with a number of technical
problems, particularly in relation to the development of the two
pension fund calculators which were considerably delayed and held
up settlements or involved settlements proceeding with manual
calculations. They have also been severely hampered because the
Handling Agreement did not embrace mining employers other than
British Coal Corporation, mining contractors, other co-defendants
and licensed mines. There has therefore been considerable delay,
not of the DTI's making, in trying to settle a whole raft of claims
which involved these latter employers. Although this is technically
not the Department's responsibility they have tried to resolve
all co-defendant cases by embracing the mining companies and contractors
within the general principles determined in the Handling Agreement
but some of the Insurers have been extremely difficult to deal
with, primarily because their traditional role in common-law has
been from an adversarial background. The insurance provision or
lack of insurance details relating to small mines has been more
problematic although recently resolved for those claimants with
post 1972 small mines employment. There are still, however, problems
for those with pre 72 employment.
16. Mr Justice Turner has been concerned
for some considerable time about the length of time settlements
are taking, and will take, to settle all the COPD claims. To this
effect he accepted that there had to be some alternative to the
Handling Agreement and the principles contained therein which
were that in accordance with common-law the level of compensation
received should be based on individual assessments of the damage
caused to health for which British Coal/DTI were liable. The CSG
and DTI, at a workshop with the Judge on 22 September 2004 were
asked to consider the issue of an alternative and in negotiations
between the parties the principle of an alternative fast-track
option for both live and deceased claims (widows and estates)
was agreed. At the hearing on 4/5 October the Department proposed
that the fast-track offer for both live and deceased claims should
be mandatory and if unacceptable then the claimants could resort
to common-law. When the Judge asked if this was approved by the
Minister, following a short recess the Department's Counsel reported
that the principle of a fast-track offer had been accepted by
the Minister. This could be interpreted as the Minister having
approved the principle or the mandatory scheme as outlined by
the DTI. The hearing was adjourned until 18/19 October and the
Department had cancelled a Ministerial Monitoring Group which
was due to have taken place on Tuesday 12 October on the basis
that the Minister was unavailable. As a consequence of the discussions
in Court on a mandatory fast-track solution the EMG decided that
the meeting should continue even if the Minister was unable to
attend. The Department said the room was no longer available so
the EMG arranged for the meeting to take place in the House of
Commons. The meeting took place with a considerable number of
MPs from mining constituencies present, and officials from the
DTI and to the surprise of the EMG the Minister attended despite
his alleged unavailability. Members of the EMG, supported by coalfield
MPs spoke passionately that any mandatory fast-track system would
not be well received in the coalfields because it would be seen
to be taking something away and a fast-track system should be
a choice whereby a claimant had the opportunity of going through
the entire process, recognising that this would take some time,
or electing to go on a voluntary basis through the fast-track
process. The Minister accepted the EMG's recommendations and instructed
the Department to inform the Court that the fast track arrangements
were to be of a voluntary nature.
17. Recognising that the lead cases did
not involve any question of liability for surface workers in relation
to COPD the Department's opposition to any arrangements to compensate
a limited number of surface men, with respiratory problems, has
surprised the EMG given that the number of men who worked in enclosed
dusty environments were primarily confined to those employed in
coal preparation plants. It is suggested that the opposition to
considering the position of these men is more related to the perceived
impact upon other former nationalised industries where coal handling
took place although it is suggested very little of this would
have taken place in a confined environment.
18. Sheer volumes have obviously caused
logistical problems particularly in relation to the impact upon
time-limited CRU certificates, many of which initially had to
be renewed, blockages at probate registries, and the availability
of respiratory consultants to conduct the full map or for deceased
cases review medical notes. The volumes also caused difficulties
in relation to medical record collections, particularly given
the number of GPs and hospitals involved.
19. However, it is suggested that insufficient
logistical planning was given prior to or during the negotiations
of the Handling Agreement. The first erroneous assumption related
to the number of potential claims, which had an impact, as did
assumptions about employment records and their detail and availability,
and dust records being available for all collieries over the appropriate
time-scale, a fact which required the establishment of a dust
reference panel to work averages in certain coalfields where local
colliery records no longer existed. Considering that the judgement
of the Court took place in January 1998 and the Handling Agreement
was signed on 24 September 1999, it is a criticism of both the
CSG and the DTI that certain policy issues remain outstanding
which are prohibiting settlements.
20. One issue which caused the EMG some
considerable consternation was the non-disclosure by the DTI that
a separate Handling Agreement had been given to the Union of Democratic
Mineworkers', dated 17 November 1999, particularly as they had
not been involved in any of the lead cases. The UDM, however,
had established a company (Venside), a claims handling arrangement,
incorporated in May 1997. Presumably, because the UDM had no representatives
in Court during the trial they had been informed that the CSG
were confident of success and had put measures in place to enable
special treatment to prevail. It is also presumed that the UDM's
own Handling Agreement had Ministerial approval. When the EMG
found out that the UDM had their own Handling Agreement they asked
the Department why similar arrangements had not been offered to
the other Mining Unions and were told that such offers had been
made, subsequently denied by the Trade Unions and the DTI were
never able to evidence such offers. This has caused particular
difficulties in the Nottinghamshire, Derbyshire and Leicestershire
coalfields, although there is one issue that the EMG do not understand
and despite requests from the DTI no adequate explanation has
been received. Based upon a statistical comparison, using the
post codes of claimants across all coalfields, there would appear
to be 20,000 less deceased claims in these regions than would
have been expected if the ratio of deceased to live claimants
was common across all coalfields.
A RESPITE CENTRE
21. Recognising that compensation for COPD
did not improve the quality of life of a respiratory sufferer
the EMG undertook a review across South Yorkshire of the range
of statutory services available, the knowledge of such services
within a claimant group and ready access to such services. The
results of an initial questionnaire revealed poor knowledge of
service availability. A one day conference was held attended by
clinicians, statutory service providers and individuals suffering
from respiratory diseases, together with their carers. The results
of the survey and one-day seminar supported the EMG's contention
that a respite centre involving short stays, day care and from
where community services could be delivered would have a dramatic
effect on quality of life initiatives. Rotherham PCT agreed that
their level of service provision needed to be fully re-examined
and they, together with the EMG, and Coalfields Regeneration Trust
embarked upon a project to develop a Respite Centre with a subsequent
evaluation, which if successful, could lead to the rolling out
of a number of centres of excellence in those parts of the country
where high levels of respiratory illness are recorded.
22. The project development has involved
discussions with Ministers in the Department of Health and the
ODPM. A building design has been completed, with a site secured
in Rotherham, for which the capital costs have bee found. Discussions
are continuing to secure the initial two years' revenue funding
after which Rotherham PCT will become responsible for all ongoing
costs. A detailed report on the development of this unique respite
centre is available on request.
VWF
23. Despite the Handling Agreement having
been signed in January 1999 the terms of reference which applied
to the Ministerial Monitoring Groups for COPD were not extended
to VWF until 18 May 2002. This was primarily because the Ministerial
Monitoring Group were asked to concentrate on COPD (Minutes 5.6.2000),
which with hindsight was an error as an input in the early days
of establishing processes could have avoided some of the problems
subsequently experienced. The Handling Agreement determined, for
the purposes of paying compensation, 3 occupational groups.
GROUP 1
Where vibratory tools were generally recognised
as a substantial part of the occupation.
GROUP 2
Where vibratory tools were not necessarily a
substantial part of the job but may well have been used.
GROUP 3
Where there should have been no use of vibratory
tools and evidence of exposure would be required to substantiate
a Group 3 claim.
24. As with COPD most of the original activity
of the Monitoring Group was not in relation to determining whether
individuals had or had not been exposed but the process by which
a claimant actually was able to reach a medical, which by definition
would determine whether he had suffered from exposure.
25. The EMG's late entry into the monitoring
of VWF claims, which involved considerable less volumes than COPD,
actually resulted in the first major issue being the cut-off date
for claims. The CSG and DTI were primarily arguing as to whether
a cut-off date on the 31 October 2002 should end at 4.30 pm or
midnight. The EMG argued that the cut-off date should be extended,
particularly for deceased claims as the protocol for dealing with
deceased claims had not even been agreed and as an advertising
process had been impossible the EMG stressed that a number of
potential claims had yet to be registered. The Minister subsequently
agreed to extend the closing date for posthumous claims until
the 31 January 2003 and that in order to register a claim a lower
initial evidential base would be accepted. The EMG'S position
was fully justified in that during the additional three months
over 6,000 posthumous claims were registered.
26. Problems were associated with time-scales
within the Handling Agreement which were not being met, for example,
there were cases where records had been requested by solicitors
but were outstanding for up to two years. The EMG were particularly
concerned with VWF claimants who had a limited life expectancy
because the crucial test would be the actual medical whereas for
COPD if a claimant died in process medical records would still
be available for examination by a Respiratory Consultant. The
EMG successfully argued that claimants, irrespective of age, with
confirmed limited life expectancy should be allowed to proceed
to the medical irrespective of liability being established. It
was also argued that those over a minimum age of 71 subject to
certain satisfactory evidence within the OGP being established
should also proceed to MAP without liability being confirmed.
Solicitors were providing the EMG with considerable complaints
about delays within the process and the alleged inefficiency of
IRISC. The EMG undertook a number of audit trails for examples
provided by one firm of solicitors. These audit trails showed
that there was some considerable difficulties around process and
that the time-scales within the Handling Agreement were totally
unrealistic. Progress with claims had been encouraged by the actual
request to undertake audit trails, implying that there was no
systematic file review system. The quality of claimants' records
was poor with no evidence of periodic review or progress chasing.
Audit trails were also undertaken of solicitors' records which
were in marked constrast, with notes of telephone calls, copies
of e-mail, and monthly file reviews. In one case the solicitors
had sent, at IRISC's request the same information three times.
The contrast in case management records between IRISC and solicitors
was stark.
27. EMG were concerned, based on evidence
provided by Solicitors of the volume of Group 1, 2 and 3 denials
and the basis upon which denials were made. It appeared to be
that many rejection letters were based on quotations from "manuals"
without a proper examination of witness information or records.
As with COPD the EMG requested the DTI to prepare a list of outstanding
policy issues, identify the lead individuals from the DTI and
the CSG whose responsibility it was to resolve these issues with
in a time-scale (letter to DTI 06.01.2003). The evidential base
for a Group 3 claim require two witness statements, one of whom
should be an official. It appears that many of these witness statements,
made by officials were being discounted mainly on the availability
of the official. In one rejection letter the term "could
not have been an eye witness" was used and in another "the
opportunity to work together on a regular basis is required for
at least one of the witnesses, is not there". None of these
requirements were specified in the Handling Agreement yet IRISC
were prepared to rely on telephone conversations with their rebuttal
witnesses even when the witness said that while they knew of the
individual and the general work performed they had not been on
the same district or shift.
28. At an exploratory meeting with IRISC
on 11 December 2002 it was admitted that in relation to Group
3:
"the initial decision is left to an adjuster,
therefore it is an individual decision".
It was also stated that "initially only
assessors are involved"
and "in July 2000 IRISC did not have the
expertise they now have on Group 3 claims".
29. This is yet another example which pervades
the compensation processes of investment in staff and IT infrastructure
following volumes and causing delay and the subsequent duplication
of work. Because of the concerns raised by the EMG, at a meeting
held on 12 November 2002, the Minister directed the EMG to review
a number of cases and report their findings. Initially a total
of 16 individual cases were examined, which had not been selected
by the EMG but had been received from solicitors who did not understand
the rationale for the claims being rejected. This review was undertaken
at the offices of IRISC and while a full report was made to the
Minister on Wednesday 11 February 2003, a copy of which is available,
the principle conclusions were:
1. Group 1 and Group 2 denials had been wrongly
moved by IRISC to the Group 3 process, therefore unnecessarily
increasing the evidential basis (two witnesses as opposed to one)
which had not been challenged by the Solicitors affected.
2. Claims handlers placed undue reliance
upon the importance of a limited evidential base.
3. Some denials demonstrated a distinct misunderstanding
of mining practice and a misunderstanding/disregard of some of
the evidence provided, compounded by a solicitor's incapability
to question such judgements, either through an inability or unwillingness
to engage professional advice.
4. The use of the vibration calculator for
9 claims to deny exposure was inappropriate.
5. The number of employees wrongly assigned
a Group clarification, and despite the requirements of the Handling
Agreement for full disclosure evidence had been wrongly withheld.
30. The recommendations to the Minister
were that
(a) all denied Group 3 claims should be reviewed
by an independent panel,
(b) the role of the claims handlers was to
be re-assessed,
(c) the principle of the balance of probabilities
was to be restored to the process as it was meant to underpin
common-law,
(d) all claims denied using the vibration
calculator be reinstated,
(e) all evidence used by IRISC on which to
make a decision be disclosed to the claimants solicitors,
(f) delays to the process be avoided as some
claims were now entering their fourth year.
31. In addition to the report that was tabled
to the Ministerial Monitoring Group on the 11 February the EMG
wrote to the Minister on 3 March 2003 concerning not only the
report but the lessons which should be learnt from the review
and a request that they now be translated into practical instructions
for the assessors and adjusters.
32. In examining a number of individual
cases it became apparent that notes were being taken of telephone
calls to claimants witnesses which were not being disclosed or
kept in any agreed format. In addition, witnesses for IRISC, involved
telephone conversations where the witness did not sign to confirm
that the notes were a true record of the telephone call. A number
of complaints were received from claimants' witnesses saying that
the telephone investigation was of a badgering nature and from
the outset many witnesses had the impression that they were not
believed. Although the Department reacted to these issues with
an arrangement in February 2003 by arranging for telephone training
techniques for IRISC staff and Nabarros were to prepare a template
for the writing up of telephone statements, this was some years
after it should have been introduced ie from the outset of the
claims process.
33. The DTI reported back on 15 January
2004 in relation to the results of the 16 case review. Six had
been accepted and damages paid, one involved liability being accepted
but the claimant was waiting to go to the MAP, three were parked
due to an outstanding policy issue—pre 1975 exposure, and
six remained with denials but pending further action from the
claimants Solicitors. In the review of the 16 cases the EMG had
been extremely critical of a number of the processes involved,
the way in which witness information had been interpreted, concerns
about the interpretation of mining practice and that decisions
should be based on the balance of probabilities.
34. At a meeting of the Kent Monitoring
Group on 13 October 2003 IRISC informed the members of the Regional
Monitoring Group that they had to work within the guidelines laid
down by the DTI. At a meeting of the Groups on 10 December the
EMG members asked the Minister for copies of all guidelines and
desktop instructions issued to IRISC and that the current copies
should also indicate where revisions had been made against any
original and the originals also provided. Despite the protestations
of the Department the Minister agreed that the guidelines could
be made available. It is worth recording that during 2003 Messrs
Ernst and Young audited the processes of IRISC in relation to
VWF which, despite certain minor criticisms, basically produced
a clean audit, but Messrs Ernst and Young were by the terms of
their remit excluded from commenting upon issues of mining sense
and this was the first external auditing of processes since the
signing of the Handling Agreement in January 1999.
35. Based upon the lessons learnt from the
EMG's review of cases, the Minister requested a review of all
Group 3 denied cases. Following a meeting with Capitas the (claims
handlers) on 15 June 2004 of those cases investigated 57% had
been restored for consideration. As at the 20 June 2004 there
were a total of 20,788 denied or withdrawn claims (excluding those
that had been denied for a 12 month period and had exceeded the
time period allowed for within the agreement for the submission
of additional evidence (10,000). Of this 20,788, 15,567 were contested
as Group 3 claims with liability. 5,037 had been investigated
of which 2,299 (46%) had been accepted as Group 1 or Group 2.
628 (12%) had been accepted as Group 3 with liability to exposure.
This showed an extraordinary high level of incorrect assessments
either at the initial stage or through the informal appeals procedure.
The amount of resources undertaken in order to complete these
reviews and more accurately determine Group classification or
in the case of Group 3, liability to exposure, could have saved
significant sums of public money had the appropriate procedures,
personnel and investment been in place at the appropriate time.
36. Despite the Minister determining that
the guidelines and desktop instructions could be disclosed to
the EMG they were not received until the 24 June 2004 of which
sections had to be subsequently re-circulated because of poor
copy quality and indeed parts were subsequently revised. The time
delay is perhaps attributable to the fact that there had never
been a systematic procedural manual (guidelines and desktop instructions)
and one had to be rather hastily put into place on a retrospective
basis.
37. Having eventually received the guidelines,
the EMG spent over 200 working hours reviewing the documentation,
particularly the job descriptions quoted, or the functions of
a job so described. This was deemed critical as adjusters were
comparing what a claimant and/or witnesses said in relation to
tasks performed and were concluding whether this was feasible
given the individuals job title and description. The EMG took
the view that the appraisal of claimants statements should be
on the basis of "is what the claimant and/or his witness
saying possible/likely" whereas it appeared that adjusters
were taking a view that the specific description for a particular
job heading would have precluded an individual from using vibratory
tools or prohibited him using them on the time-scale alleged.
The task involved the review of legislation, rules of the mine,
NCB/British Coal production instructions, and an intrinsic knowledge
of specific changes within the industry namely the revision of
the old grading structure (Black Book) and changes in mining production
techniques with the introduction of the incentive agreement in
the late 1970s.
38. One member of the English Monitoring
Group spent 18 months during 1975 and 1976 reviewing all of the
then job titles and job descriptions in order to produce a sophisticated
grading system with appropriate pay differentials for different
classes of underground and surface workmen. The job descriptions
which emerged from this process were more generic, listing areas
of broad responsibility and experience (skills and/or training),
to identify comparable tasks to be banded in the different pay
grades. These job descriptions were never meant to be an exhaustive
list of all the tasks which a man was meant to perform, according
to his job title, or for which he was trained to do. Having analysed
their findings the EMG met with Capitas and the DTI on 24 November
2004 and during their presentation they were interrupted by the
DTI who said the job descriptions in the guidelines were "meaningless".
They had only been produced as:
(a) An aid memoire for staff involved in
the process who did not understand certain tasks performed by
a colliery workforce; and
(b) to help phrase rejection letters.
39. At a meeting the following day (Thursday
25 November) of the English and all the English Regional Monitoring
Groups, the EMG reported that having initially blamed the assessors
and adjusters for erroneous decisions, then subsequently believe
that the fault lay with the guidelines and desktop instructions
prepared by the DTI, it now emerged that the fault was back with
the assessors and adjusters as the job descriptions, were meaningless.
However, it is argued that a knowledge of a man's job and the
potential tasks to be performed is a crucial part of an evaluation
process.
40. Most of the adjusters are unknown to
the EMG although their collective experience in terms of combined
years and range of activities has periodically been recorded.
However, it is know that one adjuster was not even employed in
the industry or of employable age, during the initial period when
exposure applied which is critical for determining mining knowledge.
Equally one of the lead adjusters who reached the level of Deputy
was not employed in the industry in 1975 and only worked in a
limited number of coalfield operations.
41. The position of Overman and Deputies
is particularly bizarre in that either claims by these categories
of men or their witness statements in support of the workmen,
have tended to be rejected with the rejection letters quoting
their statutory duties which would have precluded them from either
doing the work claimed or observing other workmen. For those in
the industry this is difficult to comprehend and is best evidenced
by a statement from a Colliery Manager where he clearly states
that he would not have employed an Overman who was not prepared
to "get stuck in", or "take a lead". Equally
the long-running argument whether face trainees would have used
pneumatic tools during their training is incomprehensible. It
appears to be based on one adjuster who claims that he did not
use such tools during his face training whereas there are a number
of representatives on the Ministerial Monitoring Groups, and the
Regional English Groups, who have confirmed that the use of such
tools was an integral part of their training and at the end of
that training their employment records confirmed that they had
undergone all aspects of face work. There were no separate authorisations
for other workmen to use pneumatic tools which would have been
identified on their training records. This can be exemplified
by a Group 3 claimant who's exposure was denied on the basis that
he would not have used vibratory tools, and had not been authorised
so to do, despite the records which were disclosed to the Solicitor
which included the report of an accident investigator in 1983
which determined that the claimant, who was a surface worker,
had sustained an accident while using a jigger pick breaking up
concrete on the colliery surface and this individual had been
part of a surface team for 30 years doing similar work throughout
South Yorkshire collieries. The name of the claims investigator
in 1983 was Mr J Hinde, who is currently a Senior Manager with
Capitas involved in the VWF claims process.
42. The statistics produced by Capitas for
monitoring the Group 3 review/disputes progress has recently included
a new heading namely "VRP finding would have altered the
original denial but the Department found the VRP's finding perverse
and we have maintained the original decision". The Handling
Agreement which was negotiated by both parties and accepted by
the Court does not support the Department in being Judge and Jury.
43. Capitas have now started producing statistics,
at the request of the EMG, on Group 3 claims which enables the
EMG to monitor progress. Given the introduction of an informal
disputes resolution arrangement in order to try and reduce the
volumes being referred to the Vibration Reference Panel (VRP),
as at the 5 December 2004 there had only been 12 referrals to
the VRP but five had resulted in a decision being changed from
denial to acceptance. This high level of positive outcomes, bearing
in mind the reviews that were undertaken following the lessons
learned from the EMG's review of 16 cases, raises serious questions
about issues of mining sense as interpreted by Capitas' investigators.
44. Given the evidential base required for
disputed Group 1 and Group 2 claims, and Group 3 claims, the Department's
willingness to establish a national witness database was most
welcome, although their subsequent decision that this should only
include witnesses to date for claimants, and exclude their own
witness database on grounds of data protection was disappointing.
The Department's witnesses could have been asked in writing for
their agreement to publicise their names and addresses which would
have over-ridden the requirements of the Data Protection Act.
The most alarming position was when the Department said that this
database could not be used for those claims which had been denied
when claimants could not provide witness details. As most of the
early claims were from elderly men, whose witnesses, by definition,
would have been even older it was surprising that the Department
could not seen that such a policy would not be well received in
the coalfields. They eventually agreed to re-consider this position
and either they did not understand the perception within the coalfields,
or it was not an issue of concern to them.
45. As with COPD there are problems endemic
in the system, some of which the DTI have been trying to resolve
although technically it is not their direct responsibility, ie
the issue of co-defendants who are not part of the Handling Agreement
and the insurance issues relating to licensed mines. There are,
however, a number of current issues which are causing concern.
The long term failure of the DTI and CSG to agree on crossover
claims, (service claims where a claimant has both COPD and VWF
claims) will lead to a direction of the Court through a joint
hearing heard in front of Dame Janet Taylor and Mr Justice Turner.
There are also particular concerns about referrals to the Special
Investigations Department (SID), ie on what basis referrals are
made, the nature of investigations and interviews, and the non-disclosure
of information to Solicitors which is contrary to the principles
of criminal law. Many of the complicated issues around calculations
for services will be very dependent upon settlements resulting
from a review of the offers and calculations underpinning those
offers by Solicitors and where firms have volume claims the same
concerns are expressed as are those for COPD whereby some Solicitors
have a large number of claims with limited number of qualified
Solicitors.
CONCLUSION
46. The EMG believe, with some justification,
that they have tried to fulfil their remit and certain key recommendations
accepted by Ministers during the course of both schemes have helped
and resolve blockages, and enhance to a limited degree the perception
within Coalfields of how the compensation process is being delivered.
47. However, our role regrettably has tended
to have been reactive to problems and blockages, some of which
could have been avoided had there been prior consultation. Information
on proposed policy/process changes has rarely been volunteered
and our role has tended to be more of a detective rather than
advisory. The claims initially started as an adversarial process,
improved significantly but has reverted to a more adversarial
approach which may be partially explained by the introduction
of end dates for various stages of the process, designed to conclude
the compensation arrangements at the earliest possible opportunity
and therefore relieve Departmental officials from what may be
regarded as a deflection from the current overall political remit
of the DTI. However, the Department stands in place of British
Coal and the Courts determined that miners whose health had been
adversely affected by COPD and/or VWF were deserving of compensation
as measured by the individual impact on their quality of life.
48. One could be forgiven for thinking that
the DTI and their Legal Advisers were still fighting a case which
they lost. Having accepted at the outset Ministerial statements
that delays, particularly in relation to COPD, were unrelated
to the financial costs of the compensation arrangements one could
also be forgiven for concluding that costs now are of paramount
importance. This is evidenced by the arguments in Court over the
solicitors fees for the COPD live and deceased fast-track offers,
the fast-track arrangements being sought on a compulsory basis
by the Department with the only recourse being common-law; the
resources being applied to the Special Investigations Department
which have shown relatively low levels of fraud. It is interesting
to compare that what may be regarded as exaggeration in relation
to services claims is fraud whereas exaggeration by the adjusters
in terms of mining sense is regarded as either errors or differences
of opinion.
49. Although the EMG have tried to follow
the entire Court process through attending both formal review
hearings and directional hearings this has not always been possible
for VWF in that the Department have on occasions chosen not to
inform the EMG of where and when Court hearings were to be held
nor made available copies of their submission to Court. There
is quite a stark contract between the courtesy shown in relation
to the COPD Court process as compared to VWF. Despite the success
which the EMG claim there has been little progress or improvements
achieved during the last six months and given that the DTI now
appear to hold the EMG with some disdain, the members of the EMG
are currently considering their position.
50. In addition to the specific points there
are a number of broader conclusions emerging from the process:
(a) Given that the COPD claims have involved
the widest collection of medical records from an industrial workforce
these should be examined, particularly in relation to co-morbid
conditions amongst miners which are higher than the national average.
For example, the incidence of bowel cancer is five times higher
amongst mine workers than the national average.
(b) There could be lessons to be learnt for
GPs in relation to the diagnosis of respiratory diseases. A number
of miners who have been treated for many years for asthma did
not have asthma according to their spirometery test, but COPD.
Conversely, a number of men had been diagnosed with COPD by their
GP but in fact have asthma.
(c) There is inadequate regulation of claims
farmers who often raise expectations of compensation levels and
their cold calling techniques often cause distress, particularly
to the elderly.
(d) While the Law Society's decision to vary
the normal complaints procedure has been welcomed, their subsequent
decisions where a proportion of the compensation has been deducted
from a claim, or that an additional fee was charged should be
repaid, were confined to individual complaints. These decisions
should have been of a generic basis and the firms concerned instructed
to repay all claimants where fees/a proportion of compensation
were inappropriately deducted, rather than just in response to
individual complaints channelled through constituency MPs.
(e) The Law Society should conduct sample
reviews of case files for those solicitors with large volume claims
to ensure that claimants have received a professional service
for the fee paid by the DTI.
(f) Given the extraordinary sums of money
paid to solicitors, including the Department's own legal advisors,
and contracted service providers the Public Accounts Committee
should be asked to satisfy themselves that value for money has
been obtained even though the cost of delivering compensation
for a significant number of claimants has exceeded the value of
the individual compensation received.
(g) The independent monitoring of an activity
of a Government Department has been fraught with difficulties,
given that this was undertaken by volunteers who were not resourced
by the DTI. However, it has had some positive effect and potentially
has some future policy considerations for Government.
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