Examination of Witnesses (Questions 1-19)
23 FEBRUARY 2005
Mr Andrew Tucker and Mr Roger Maddocks, (Irwin Mitchell),
Mr Peter Evans and Mr Gareth Morgan (Hugh James), and Mr Lawrence
Lumsden
Q1 Chairman: Good morning,
Mr Tucker. Can I welcome you and your colleagues. I was just saying
to my colleagues that we do not intend to raise with you any specific
constituency cases this morning, you will be pleased to hear;
we will leave that to later. Perhaps you could introduce your
colleagues and we will get started.
Mr Tucker: Peter
Evans who is from Hugh James; Roger Maddocks who is from Irwin
Mitchell; as am I; Gareth Morgan who is from Hugh James, and Lawrence
Lumsden from Thompsons. There are two firms of that name; this
is the Scottish side of the practice.
Q2 Chairman: Thank you.
Pretty early in your memorandum you bring to our attention the
stability of the membership of the Solicitors' Groups involved
in the coal health schemes compared with the high turnover of
DTI ministers and personnel. Is it your feeling that the Department's
development and implementation of the schemes has suffered as
a consequence of this turnover? Is the feeling that you have that
every time there is a new minister, there is a new approach, there
is a new initiative, and every time there is a new senior official
responsible that there is a change in emphasis? Would that be
a caricature of what you are saying or is it something nearly
true?
Mr Tucker: I do not think it has
been by any means the most significant issue. Certainly when there
have been changes of minister, on each occasion there has been
a period of time which it has taken to brief the person concerned
and for them to get up to speed. It is also true to say that there
have been different styles as between them. The same has been
true to a different degree when there have been changes of personnel
at the DTI. I suppose the main thing that we now notice is that
there is nobody currently on the DTI team, which extends beyond
the officials to their legal advisers as well, who was about when
either of these agreements were actually negotiated, which occasionally
causes some dislocation in the exercise of going back to why we
have got to where we are, but, as I say, it is not the biggest
point.
Q3 Chairman: Maybe I can
put this in a different way because although I do not want to
flog this horse I think it is useful. We know that claims are
probably not taking as long as they did originally and that assessments
by the doctors have perhaps been dealt with more speedily now,
but is it your impression that lessons have been learned over
time by the DTI and that there have been improvements or are you
still stuck in the grooves that you were four or five years ago?
Mr Tucker: I think generally speaking,
yes, lessons have been learned and probably not only by the DTI,
to be fair. As you can see from our memorandum, there are still
issues that concern us now and that we can see going into the
immediate future.
Q4 Mr Clapham: Could I
take you on to some of the procedures for dealing with certain
occupational groups with Vibration White Finger. In your memorandum
you criticise Capita-IRISC for the way in which they have implemented
the occupational procedure for Group 3 VWF claims. How does the
procedural bar which you claim is being applied work in practice?
How do the actual procedures of Group 3 prevent progress?
Mr Maddocks: The Group 3 procedure
has been dogged by lack of progression of claims within it, really
since the handling arrangement was set up. It is important to
bear in mind that the original handling arrangement provided for
Group 3 claims and provided the information that would be necessary
to be produced, and that was followed for a period of a couple
of years or so after the handling arrangement was established
when claims were being submitted and being denied on the grounds
that they were Group 3. Those denials were then being tested and
there was no mechanism, it appeared, for resolving the claims,
for dealing with them. We were told about complaints about lack
of uniformity of evidence submitted by claimants. It appeared
that IRISC did not have the resource or the approach developed
to enable the claims to be assessed. To try and resolve some of
these difficulties we negotiated the occupational group procedure
which was intended to address a raft of issues related to occupational
groups but one of its major purposes was to address the issue
of Group 3 claims and provide a standardised form for their presentation.
The underlying thinking was if the claims were presented in a
form that fulfilled the requirements then subject to the absence
of evidence to the contrary, provided on its face the evidence
stacked up and made mining sense, that the claim would be accepted
and would go through. It was not envisaged that this would mean
that IRISC would refuse to consider the merits of other claims
but merely this procedure would be a vehicle, if you like, for
providing smooth passage for claims that met those requirements.
Then following on from that there have been other procedural hurdles
that have evolved that claimants have had to overcome. IRISC will
not consider claims that do not meet the requirements of the OGP
unless they pass the quality audit that they devise, and part
of the quality audit is checking that you have got the right number
of statements in from appropriate witnesses. In circumstances
where those requirements are not met they will only consider a
claim if a request is made for discretion which requires the claimant
to demonstrate that there are some exceptional circumstances and
to set out in detail the steps that they have taken to trace the
witnesses, so there are other hurdles that have to be overcome.
It is fair to point out that requests for discretion are largely
accepted but it is an additional step that the claimants have
to go through. It is fair to point out that the DTI have accepted
that where claimants are elderly or in posthumous claims then
that satisfies the criteria for `exceptional', but nonetheless
there is a series of steps that has to be gone over and at various
points along the way people have dropped out of the process. It
is of particular concern that in October 2002 a cut-off date was
put in place whereby all evidence that complied with the occupational
group was to be submitted if the claims were to go forward and
where that step was not taken the position was the claims would
not be considered. That was before we had in place a witness database
which has only been developed within the last 12 months which
facilitates claimants to identify witnesses and produce those
in support of the claim. The concern is that there are over 10,000
cases where an intention had been intimated to contest the denial.
They were never actually contested by the deadline and the concern
is that in a proportion of those cases that would be because the
claimants felt that they could not find the witnesses; there was
in place at that time no witness database.
Mr Morgan: Could I make an observation
please on the Group 3 claims and the VWF. I do not deal personally
with the VWF claims but I was at a Welsh Monitoring Group when
a statement was submitted to it dealing with VWF. The statement
was submitted by Mr Glyn Moss and he investigates disputed Group
3 claims for Capita and the statement included this: "My
opinion is that many claimants' and witnesses' statements are
not to be replied upon." I must say we found that quite troubling
that that should be put down in a statement by somebody whose
job it is to look into these claims.
Q5 Mr Clapham: On that,
the insurers use adjudicators or people with mining expertise.
From your experience, would it seem that the people that are used
tend not to use "mining sense" but rather to operate
to the book?
Mr Morgan: I would not like to
say that because of my lack of involvement. My concern was about
the view of somebody whose job it was to look into these expressing
the opinion that you cannot rely on what the miners are saying.
Mr Lumsden: There are concerns,
to answer your question Mr Clapham, that adjusters operate to
the book then the book that they are using should be accurate.
There are concerns that the guidelines that they may have used
in the past to assess Group 3 claims have not accurately described
what miners have done in particular jobs, so that is a continuing
concern.
Mr Maddocks: I think it is fair
to say that there have been long-standing concerns about the approach
of the adjusters as to the way that they approach the investigation
and adjudication of the claims and also and separately, concerns
about the rate at which those claims are being carried out and
the rate of progress there. I would be happy to develop either
of those points if you wish.
Q6 Mr Clapham: Before
I go any further could I for the record declare an interest. I
am a member of the English Monitoring Group. Just coming back
to the way in which the adjudicators are used, is it your view
that the adjudicators are used in a way to minimise settlements?
Mr Tucker: We do not know what
their terms and conditions are, so to speak, or precisely how
they are instructed by the Department. I think anyone observing
it could be forgiven for coming to that conclusion over the period
that Group 3 claims have been assessed. We give some figures in
our report that show how decisions that have been taken in the
first instance, so to speak, have been subsequently changed and
claims have been recategorised as they move through the process
of assessment and then through the disputes process. I think the
main concern has been about the application of what is called
in the procedure "mining sense", which is really expert
opinion about the operation of coal mines at the particular time
that the individual concerned was at work, and in that sense the
adjusters are almost acting as judge and jury because they are
giving an expert view which then determines whether they accept
the case or not. It is fair to say that it is subject to the right
of challenge and ultimately the right to go to court but that
has been the main area of concern.
Q7 Mr Clapham: Given that
the court made its decision regarding the issue of negligence,
given that you negotiated the various group procedures, do you
feel that the use of adjusters is in a way once again giving British
Coal, so to speak, a second bite of the cherry because the case
has already been decided in court?
Mr Tucker: I think we accept that
it is necessary to show that the claimant concerned was exposed
to tools that vibrate in the workplace, so we accept that that
is necessary for the majority of jobs that fall into this category.
I think our main concern really is that the Group 3 adjusters
appear to have been left largely to their own devices to set their
own evidential standards, which has been most recently evidenced
by the issue of so-called guidelines that they operate to that
the English Monitoring Group, as you know, found out about and
called for disclosure of and were eventually provided with only
to be subsequently told that they were of no material use to the
adjusters.
Q8 Mr Clapham: Given that
you have raised the guidance notes and bearing in mind that as
the Claimants' Group of Solicitors you liaise down the line with
solicitors, represent solicitors in negotiations with the DTI,
have you at all been involved in negotiating the notes of guidance
that are used by the adjudicators in these cases?
Mr Maddocks: The notes of guidance
are a DTI document of instruction. We have seen drafts of them
and been invited to comment on them and we have taken that up;
we have commented and some of our comments have been adopted.
We were very concerned about the guidance notes because of our
concerns about the way that the adjusters were approaching the
task of investigating. There were issues not only as to their
application of mining sense, which has been questioned, but also
the relative weight that they were giving to different types and
different elements of evidence and this has been a major concern
here, where it has appeared in a number of cases they have given
disproportionate weight to documentary evidence which is not pertinent
to the issue of vibration exposure but may be relevant to the
issue of what job the claimant was doing on the one hand when
on the other there may be evidence from the claimant and his questionnaires,
who will include officials, that completely contradict that. There
have been all those sorts of issues about the approach to the
weighing of the evidence, the investigation of the claims, that
those guidelines were attempting to address. Although we have
had input, they have been shared with us, we have commented and
some of the comments have been adopted, there has remained a concern
about the extent to which they are followed in practice. When
you look at the individual cases coming through there are clearly
issues there.
Q9 Mr Evans: Am I right
in believing that you are quite content with the services agreement
between yourselves and the DTI but you are unhappy at the way
it is being implemented in practice? I am just wondering if you
could give us some practical examples of where Capita-IRISC are
doing things which you are really unhappy about.
Mr Maddocks: In relation to the
VWF Services Agreement we are happy with the terms of the agreement
which was intended to facilitate speedy resolution of a lot of
claims. There have been a lot of concerns about its implementation
and there seemed to be difficulties in the early days at IRISC
in that there appeared to be a lack of understanding really as
to the basis for the services claim, a lack of understanding about
the impact of the symptoms of VWF, the vascular on the one hand
and the sensorineural on the other. So there have been lots of
issues that have arisen in relation to those sorts of matters
generally and then specifically in relation to cases in which
there is a suggestion that the claimant's employment in some way
suggests that he should be ineligible to recover for the costs
of assistance with services tasked and a failure to understand
that the Services Agreement is intended to compensate where assistance
is required not only in situations where there may be a complete
inability to do the task and a failure to understand that for
employment to be a bar then you would really need to demonstrate
that the employment indicated that the claimant was capable of
doing all aspects of the task for which he claimed assistance.
So there have been a lot of those sorts of issues and training
has been a problem and continues to be a problem. Some time into
the implementation of the Services Agreement and because of the
difficulties, we were invited to go down and assist IRISC with
some training and, in fact, it was something that I did personally.
In the discussion involved in the training it was quite clear
there was a real lack of understanding about the basis of the
Services Agreement and how it was proposed it should improve.
It has improved but there continue to be difficulties. The early
stages were also dogged with lots of inquiries from IRISC, the
relevance of which was not immediately apparent or if it appeared
that it might have been relevant, it was hard to see how it could
really have been determinative of the issue. Lots of inquiries
at an early stage are for tenancy agreements and documents to
prove ownership of vehicles and things like that. That sort of
problem has persisted to date. We still have lots of queries generated
and when you look at a query it is hard to understand why that
question has been asked. One of the most bizarre recent ones was
an inquiry for details of the claimant's involvement in his hobby
in keeping tropical fish. You just wonder what is going on. In
broad terms we are happy with the agreement. Our concerns are
about implementation. Training is a big issue on the way that
the claims are handled, and also I think it is clear that there
is a lot of investigation being conducted by IRISC some of which
we question the relevance of, which when you look at the text
of the Services Agreement itself you think the agreement made
it clear that it was set up in the way it was with a view to limiting
the factual investigation and yet at the same time we have got
this huge amount of activity going on investigating claims, lots
of claims stuck at the investigation stage, and one is left wondering
why. We do not know the terms of the arrangement between IRISC
and DTI so we do not know whether the answer is to be found there.
Q10 Mr Evans: Have you
got communications with the DTI in as much as the points you have
raised just now are quite appalling? I thought the Services Agreement
was there to speed things up in order that these cases can be
dealt with expeditiously and get the money through to the people
who are rightfully claiming it. You have mentioned training. The
fact that they do not even understand the basic tenets of what
they are doing seems to be hugely alarming. What recommendations
would you now make at this stage that could be made in order to
speed things up and make it expeditious?
Mr Maddocks: Two points. I stand
by everything that I have said. I think things have improved.
I think there is scope for significant further improvement. I
think that there needs to be better training by the adjusters
who are dealing with the claims at IRISC so they have got a better
basic understanding of the fundamental issue, the premises upon
which the agreement is intended to operate and then there needs
to be a radical look at the way IRISC investigates cases to see
whether or not that could be streamlined because the impression
that one is left with is that there is a lot of activity, a lot
of queries raised where the relevance of a lot of the inquiries
is at best marginal and there is significant scope for streamlining
the process.
Q11 Mr Evans: They do
not seem to be complying with the spirit of the agreement. Some
of these questions, particularly the tropical fish one which is
a practical example you have given, seem to me to be ludicrous.
Are you able to get that back to the DTI to say they are not complying
with the spirit of the agreement that you have come up with?
Mr Maddocks: We have a regular
dialogue with the DTI. We meet them on a cycle of meetings every
month or six weeks to discuss service claims in particular. We
have raised these examples. Where the examples are raised they
are taken back and a specific example is usually addressed and
if it is like the example I have given it is acknowledged that
it is not relevant. The concern is that whilst the specific examples
are identified, the wider message is not fed back. What may have
been identified as a training need with a particular adjuster
is not then addressed so that there is further training for adjusters
more widely.
Q12 Mr Evans: Is there
a big changeover in staff there with new people coming in?
Mr Maddocks: There is. We are
led to understand that there is a significant problem with staffing
at IRISC. In connection with some discussions we were having with
them about the stalled claims procedure, we were told they had
had a 25% turnover of staff in the last year, and that obviously
will create its own difficulties.
Q13 Mr Evans: That is
enormously worrying, I have got to say.
Mr Lumsden: Can I add a point
to what Roger has just said which is it may be said by the Department
that by asking the claim handlers to go through these questionnaires
and to pick out discrepancies and anomalies in evidence that is
submitted there have been significant savings by the Department
and by the claim handlers in relation to the value of these claims
and it may be said that the procedure is designed to flush out
exaggeration, whether it is deliberately contrived at or unintentional.
The problem is, as we see it, that many people who have been in
this process for years simply become scunnered with the time it
is taking to get to the end of it all and some of them undoubtedly
will simply accept what is on offer on the table now rather than
wait another several months for it all to be resolved. That is
not to say that there are not claims where the evidence may not
hang together or that there is not a case to be made for looking
at the claims closely, it is simply to make the point that if
you do not do this on a proper basis then you may well find that
you get a lot of people simply getting disenchanted with the time
it is taking.
Q14 Mr Evans: There may
be some people out there who may exaggerate simply to get more
money but in your estimation there are other cases where through
the `harassment' of parts of their claims, which have got nothing
to do with the claim basically in the way that IRISC is operating,
claimants are being cheated out of money that is rightfully theirs
because they have just given in?
Mr Lumsden: I do not say there
are necessarily people out there deliberately exaggerating. I
think it is a complicated process. You may have a claim where
part of the evidence is quite good for five years of the period
for which you are claiming but it is not so good for two years
of the period for which you are claiming. It may be that you are
made an offer on the basis of the five years and not seven years.
The claimant may simply get to the end of his tether and think,
"I may as well accept this because it has been going on long
enough," rather than hold out for the extra two years. That
is not to say he does not have a good claim for the two years.
It is just that the evidence may be a bit indifferent. The witness
does not remember all the facts that he requires to remember in
terms of these processes.
Q15 Mr Evans: But is there
a sense of harassment and delay which then leads to people being
cheated out of money that should rightfully be theirs?
Mr Lumsden: Inevitably that pressure
is there on people to accept things because they think they have
reached the end of the road and they wonder how much longer is
it all going to take.
Mr Evans: Chairman, there can
be little or no doubt that there is a group of claimants who simply
become worn out by the process, particularly if they are asked
for information that they find difficult to see the relevance
of, but if they are properly advised will recognise it is part
of the process and give that information, but when they are asked
for more information again in six months' time and again they
are wondering about the relevance of it and that happens a third
and a fourth time, they begin to get the perception that the dice
is loaded against them. In those circumstances an offer is made,
and a lot of them think, "I do not think it is right but
I have had enough of this," and they bail out.
Q16 Mr Evans: Do you think
this approach is intentional or unintentional?
Mr Evans: I have got no doubt
that in the early part of these proceedings there was a determination
to pay the proper amount of compensation as was due. However,
as the process has got very complicated and has taken a long time,
it is much more difficult to have confidence that the root desire
is to pay these men as opposed to making sure that it is right.
If there is a doubt as to whether it is too much or too little,
I suspect it usually goes one way.
Q17 Chairman: You have
said that people get tired. The other side of the coin is that
of course they die.
Mr Evans: Yes.
Q18 Chairman: We are talking
about people who are by definition ill or they would not be able
to complain and because of the nature of the coal industry we
are talking about men who are getting old and a lot of them are
into their 70s now. Certainly from my experience amongst the most
distressing is when you get cases of dementia setting in over
and above the other things and the family just say, "We want
to draw a line under it." You just wonder if people are rather
cynically observing the deterioration in condition and saying,
"If we wait long enough, they will be dead"?
Mr Evans: I think we have all
had the experience of people saying, "They are just waiting
for me to die." They are wrong because it costs the Department
more if that happens. They are wrong but that does not prevent
the perception being there in communities and, sadly, there are
now families where not just the miner but perhaps the miner's
dependents have died. Even now we think about some of these claims
being brought by miners' children, and I always think of them
as being young people. In fact, they are often people in their
60s now and, sadly, there is no doubt that that is happening again.
Mr Morgan: I would also like to
add that throughout this process there has been a feeling by some
in the DTI that a lot of people are trying to make fraudulent
claims and there has been a distrust of the mining community.
Right at the beginning this was evidenced by the DTI wanting to
introduce a declaration on the claim form that included the phrase
"if errors are made deliberately it may lead to arrest and
imprisonment". There were tremendous efforts to get that
onto the claim form. How many elderly miners or widows would have
signed such a form? It was very difficult to get them to back
off from that. Then when the medical assessment process was being
discussed, the DTI were very, very concerned that there should
be physical tests for these elderly miners to go through. We had
to get medical evidence to the effect that these tests would actually
kill some of these men. It was only with that evidence that that
was backed off from. The final stage of it is probably Appendix
6 to our report where there was a leaked report in The Guardian
about attempts to use technology to pick up people making misleading
comments on the telephone. Throughout the period there has been
this idea that there are vast numbers of people from the mining
communities out to make fraudulent claims. This has coloured a
lot of what the DTI's thinking is about. It is simply not right.
Chairman: You must excuse us, Mr Morgan.
We have just been taking evidence from the Export Credits Guarantee
Department concerning bribery and corruption regulations in which
the `tender flowers' of British business have felt that they were
being trampled on by civil servants who were asking them far more
polite questions with far less requirement of evidence and the
loss of evidence coming into play than they ask elderly men who
have been broken by a life of very hard work and are being treated
rather more rigorously by some parts of the DTI than by others.
It is just an observation to make. We are not intending for a
moment to be rude here. It is just there were wry grins coming
over our faces when you were giving important evidence. Many of
us were just setting one bit of evidence against the other.
Q19 Mr Evans: Following
what you said, Mr Morgan and following what you said, Mr Lumsden
which is that a lot of these cases can be somewhat complicated
and we are talking about people who are ill or very aged, have
you got any evidence that the frighteners are being put on claimants
that they ought not be claiming for things that are theirs because
they are frightened perhaps that they will be accused of fraud
and could end up in prison or with a fine or indeed losing their
entire claim?
Mr Morgan: I think the most distressing
aspect of this was when widows and elderly men were asked for
proof of employment. A lot of British Coal records were destroyed.
They were destroyed when this litigation was going on but they
were destroyed. So you had men who may have spent 50 years working
underground or the widow of a husband who had spent 50 years underground
being asked for proof of employment. This caused a great deal
of distress because the implication to those people was that they
were not being believed. That system was changed and after a lot
of argument it became agreed that that evidence would be accepted
but there was a time when people were being asked for proof of
employment. Proof was being given in of things such as a long
service award signed by the Chairman of British Coal. That caused
a great deal of resentment in the community because those people
saw this as their word not being accepted.
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