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12 Jul 2005 : Column 239WH—continued
Industrial Injuries Disablement Benefit
12.59 pm
Mr. Gordon Prentice (Pendle) (Lab): This debate is very important to my constituent Peter Lambert. It is unusual for me to bring a particular case to the Commons in this way, but Peter Lambert's case, which is interesting in its own right, perhaps illustrates failings in the system, and I am sure that the Minister will want to address them.
Who is Peter Lambert, what happened to him and what does he want? He is now 63, but when he was 52, he was assaulted. That was in 1995, when he was a schoolteacher. Today, he is in great pain and can get relief from that pain only by hanging upside down like a bat or by swimming. He swims about 40 lengths a day and tells me that the pain begins to go after 20 lengths. Clearly, that has an enormous impact on the way in which he leads his life.
Mr. Lambert cannot walk without experiencing incessant back pain and he has a disabled driver's badge to help him get about. He cannot bend, stoop or kneel without experiencing pain and he has great difficulty climbing stairs. His right leg is numb below the knee and he trips and stumbles a bit. It is also impossible for him to lift heavy weights.
He has been in severe spinal pain for a decade, since June 1995. Every day, he experiences searing, disabling pain. He now takes morphine tablets, which have been prescribed by the pain specialist at the spinal injuries unit of Hope hospital in Salford. He also wants to have an operation on his spine to make things better. His life has been completely dominated by this pain and its management. However, it is not just Mr. Lambert who suffers; his wife literally lives his pain with him.
Mr. Lambert has become part of my life, too, because he has been along to my surgery regularly. He is consumed by a burning sense of injustice. I say to him, as sympathetically as I can, "But you've got to live your life. You've got to move on from this," but he is totally fixated by the injustice of what happened. He has presented me with files thicker than the London telephone directory; one could get submerged in the most minute detail. A few months ago, he astonished me by bringing along a skeleton used by medical students to illustrate the nature of his disability; as if I did not know about it, having seen the photographs, the slides and so on. There he was, however, coming into my surgery holding a skeleton. It took my breath away.
So, how did it all begin? Mr. Lambert was teaching at Edge End high school in 1995. Two boys were fighting, and he stepped in to separate them. One of them hit him at the top of his spine, and that is when it all started. The doctors got involved, naturally. I am not going to name individual doctors or clinicians; that would be invidious and there is no need for it. However, Mr. Lambert is totally and absolutely critical of the medical establishment, the way in which it diagnosed his injury and the subsequent follow-up.
The accident, as I say, happened in 1995. In January 1996, a report from a consultant at the Royal Preston hospital stated that there was some bruising to the back and what he described as spontaneous osteomyelitis not caused by the trauma of the blow, which meant that it was just bruising to the spine.
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The following month, Mr. Lambert was awarded 5 per cent. disability for soft tissue injury—the bruising that I have just described. At no stage were those considering his case aware that scans taken at the hospital showed a fracture to the vertebrae. In November 1996, the medical appeals tribunal entered the frame. Mr. Lambert could not believe what was happening to him. Astonishingly, the tribunal did not apply for the detailed medical records but took at face value the original statement by the consultant that there was just bruising to the spine, a soft tissue injury.
In early 1997, Mr. Lambert, who wanted to get to the bottom of the problem, saw the hospital records from Preston. He noted that the spine had been fractured. He appealed again, saying that the tribunal did not have all the facts and had not allowed him to speak about his condition. In December 1998, the social security commissioners entered the scene. They set aside the tribunal decision and asked the medical appeals tribunal to look at the issue again.
In June 1999, years after the assault, the medical appeals tribunal requested all the medical records. Mr. Lambert went through them and noted that various documents were missing and that there were various errors. He was told that the person who presided at the tribunal in June 1999 would not preside at the following medical appeals tribunal that December. When the tribunal met again on 13 December 1999, the person who presided was the regional chairman. Mr. Lambert was very concerned because he felt that that should not be the role of the regional chairman. The medical appeals tribunal reaffirmed the previous decision.
That takes us up to 1 March 2001. The appeal to the social security commissioner at an oral hearing was won. The commissioner wanted to get it all sorted out there and then with a meeting with the spinal surgeon and so on. I am told that the solicitor to the adjudicating medical authority advised against that and that he wanted a further tribunal. The process is endless.
In February 2002, a new schedule of evidence was received and new documents turned up. Some documents were missing and some referred to another individual. So, there were all sorts of anomalies. On 14 May 2002, there was what is known as a direction hearing, at which the chairman of the medical appeals tribunal directed Mr. Lambert to assemble a schedule of the events—documentation of what happened where and when. Mr. Lambert spent hours, days, probably weeks, assembling that documentation. It was a huge labour.
Then came the meeting that changed things. On 19 November 2002, a consultant orthopaedic surgeon gave evidence to the medical appeals tribunal that the blunt trauma, or blow, in 1995 had caused a fracture not mentioned by the consultant in January 1996. That fracture caused the osteomyelitis and the pain that I described. So, Mr. Lambert won his appeal. He was awarded a 20 per cent. disablement, but only for six months, followed by 5 per cent. for life. Such an award does not include any financial recompense. People do not get paid for awards of less than 20 per cent.
So Mr. Lambert's appeal to the social security commissioners had been successful but he got nothing out of it. Inside, he rages about the unfairness of the matter. He cannot understand some things. He alleges that medical notes were tampered with or, no pun intended, doctored.
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He also alleges that he saw his GP after the assault and not before. Amazingly, in the statement of reasons for the decision on 19 November 2002, which I just alluded to, we are told that Mr. Lambert
That was the month before the assault took place. Mr. Lambert contests that. He says that he did not see his doctor about his back pain then and that the doctor, amazingly, got his dates wrong. A general practitioner can be forgiven for getting his dates wrong on one occasion, but Mr. Lambert's general practitioner got his dates wrong on a number of occasions. That is unbelievable. When I read that, I thought, "Is it credible that a professional person such as a doctor would habitually get his dates wrong on medical notes?"
So, in essence, Mr. Lambert says that the pain that he is suffering was directly caused by the assault of the boy in 1995. The authorities have maintained for years that it was a degenerative back disease and that the assault caused only soft-tissue injury and some bruising, which explains the 5 per cent. disablement award. What a state of affairs it is that such a matter can still be rumbling on after a decade.
What does Mr. Lambert want? He wants an investigation into how the claim was handled. That is a daunting prospect, given the volume of material, the details, the medical expressions, the questions about who did what, when, and who covered up what, when and for what purpose. However, that is what he wants. He wants 30 per cent. disablement benefit, backdated to 1995. He tells me, because he is an expert in such matters, that his disablement must be the same, and is probably more, than someone losing a thumb. Apparently, one receives 30 per cent. disablement benefit if one loses a thumb. I suppose that the thumb is important to the operation of the hand.
Mr. Lambert also wants this whole business sent to the Industrial Injuries Advisory Council. I took up the matter on his behalf, and I got a letter from my colleague Baroness Hollis of Heigham, who said that the Industrial Injuries Advisory Council does not look at individual cases. It looks at epidemiological work, so there is a sort of road block.
Mr. Lambert wants someone somewhere to consider critically the doctors who sit on and advise the medical appeals tribunal. He wants people in authority to look behind the medical decisions, to hold the doctors to account, to ask questions and to challenge them. He feels that in his case that did not happen.
Mr. Lambert wants the Secretary of State to take another look at his case, as Mr. Lambert thinks that there are probably thousands of voiceless people suffering because they have been mistreated by the system and the authorities. Those people do not know each other and cannot communicate with each other, but he is convinced that what happened to him was not unique. I suppose that it was not. I have been reading the recently published report of the president of the appeals tribunal, which oversees such matters. The president says that
He goes on to discuss the quality of medical reports, and how they can be tested to ensure that they accurately reflect the severity of the disability.
I am sure that Peter Lambert has been in touch personally with anyone and everyone who has a connection with this case. Some people may say that he is literally a pain in the neck. That would be a disservice, but he is persistent. He knows what he wants, and he wants answers. He got a letter from the president of the appeals tribunal, his honour Judge Michael Harris. That gave further encouragement to Mr. Lambert, because the judge said that the Secretary of State has powers to look again at what happened
I am not entirely sure how the Minister will respond. This case is immensely complicated in all its details, but in its essentials it is pretty simple. It is about how medical opinions can be tested and verified, and it is about getting some expedition into the system and giving people such as Peter Lambert the justice that they think has been denied to them.
1.20 pm
The Minister for Employment and Welfare Reform (Margaret Hodge) : I congratulate my hon. Friend the Member for Pendle (Mr. Prentice) on securing the debate. I am sure that when Mr. Lambert reads our proceedings, he will be grateful for the diligence with which my hon. Friend has approached the case that has arisen in his constituency.
I will confirm the position regarding the Department's medical assessment procedures, and I hope that I can answer some of the points that my hon. Friend has raised. I am aware that both he and his constituent have written to the Department and to the previous Secretary of State on these matters. I hope that it will be accepted that I cannot comment on all the individual circumstances surrounding Mr. Lambert's claim for benefit, but I will make some general points, which I hope will be helpful.
There are three main issues that Mr. Lambert wanted to raise through my hon. Friend. First, there is his belief that he should get more than the 5 per cent. assessment of disablement that he has been awarded. He makes the comparison that has been made in today's debate between the assessment of 5 per cent. disablement for his condition and the assessment of 30 per cent. for the loss of a thumb. Secondly, there is the question of whether we should have an investigation of the appeal tribunal system of the Appeals Service and of my Department's medical advisers. I believe that that relates to whether the medical assessment framework has been properly complied with. Finally, the other issue is whether osteomyelitis should be referred to the Industrial Injuries Advisory Council.
First, let us consider the assessment of disability. The assessment is made by a fully trained medical adviser. Just to put the record straight: doctors on the tribunal are appointed by the Lord Chancellor in consultation with the Government's chief medical officer. Their training is undertaken after consultation with the chief medical officer, so I have some confidence, which understandably Mr. Lambert does not, in the quality and calibre of the people that we appoint.
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The assessment of disablement for the industrial injuries disablement benefit is a functional assessment. It tests what the person can or cannot do compared with somebody of the same sex and age whose physical and medical condition is normal. It is not an assessment of the medical condition; it is an assessment of the effect that the medical condition has on a person's capacity to function normally. The reason why we have that method of assessment is that the same medical condition can have different effects on different people and, conversely, different medical conditions can have a similar effect on people's functional capacity.
The schedule that the Department uses to assess disability for the benefit involves the expression of a percentage of disablement. That is a bit awkward, but it is the way the system works. Those schedules are contained in legislation, so we operate within that legislative framework. We have a panel of experts who made the determinations on the assumption that the injury occurred in an otherwise healthy person. That is used as the basis of the assessment to look for a loss of function when compared with a normal person. So, the assessment is not about the extent of damage to, or the loss of, body tissue; it is about the effect on functional capacity.
Let us consider the example that my hon. Friend brought to us. His constituent was given an assessment of 5 per cent. because it was decided that the level of disablement from which he suffered was minimal. Both the formal examination findings and informal observations at the tribunal hearing of 19 November 2002 showed almost normal function of the back. The tribunal assessed disablement at 20 per cent. for the period of time when my hon. Friend's constituent had been in severe pain.
The decision to decrease the assessment after a short time is justified because the evidence shows that his function had returned to almost normal. The tribunal decided that, although there was some residual loss of function, which it assessed at 10 per cent., there was evidence—I understand that it is disputed, but it was the evidence before the tribunal—of pre-existing problems with the lower back; that was the reason for the assessment of 5 per cent.
In order to be assessed at 30 per cent. in connection with a spinal injury, the person would need to have a marked restriction when bending or straightening, with much-reduced other movements of the spine, such as twisting. There would also be much-reduced movement of the limbs, muscle wasting in the limbs, muscle weakness, and inability to tiptoe, bend or kneel. Those things are pretty well set out.
In the comparison with the loss of a thumb that was made in this case, the assessment of 30 per cent. that was suggested does not relate to the number of bones lost,
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but to the effect on the function of the hand that such a loss causes. I think that my hon. Friend understood that. The important function of the human hand is the pincer grip, which is formed between the index finger and the thumb. Thus, if the thumb is lost, a major function of the hand is lost.
In the few minutes that I have left, it is worth considering the medical assessment framework. When advising on the percentage level of assessment, the medical services medical adviser considers a list of specific injuries and the accompanying percentage disablements, as set out in the legislation. Those not only set out certain degrees of disablement for specific injuries; they are also used as a guide for assessing the effects of injuries and conditions not listed in the legislation.
The medical assessment framework is guidance, which was developed in the assessment of industrial injuries claims as one of the training aids on how to relate the effects of injuries that do not appear in the legislation to those that are set out in the legislation. I can reaffirm the explanation given by my predecessor that the medical assessment framework is for guidance only and has no legal status. It is only one small part of the material to which medical advisers have access.
Disability assessment requires widely based knowledge of what is normal or abnormal, and extensive practical experience. In addition, in the context of the industrial injuries scheme, it calls for tuition in the specific requirements of the scheme and its practical application. That is provided as verbal tuition, demonstration and coaching in the examination setting. It is practical work, which is best learned by demonstration. The medical assessment framework forms just one of the aids to which medical advisers have access. There is no obligation on appeal tribunals to comply with the framework, as the medically qualified members of the tribunals are independent of the Department for Work and Pensions, and their training is a matter for the Appeals Service.
I probably shall not have time in the couple of minutes that I have left to deal with the osteomyelitis issue and whether that should be referred in relation to becoming part of the scheme. However, I undertake to write to my hon. Friend about that aspect of the issue. I understand that his constituent remains dissatisfied with the current assessment of disability for his condition. My response will simply reiterate the position of which he has already been made aware. However, I hope that by responding today in Parliament and by writing to my hon. Friend on the remaining issue, I shall provide him with some satisfaction. If, after reviewing the report of the debate, my hon. Friend has further questions to raise, I shall write to him with a further full response.
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