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Earl Russell: I am happy to support both amendments. My name is attached to Amendment No. 6 and it is also attached, in spirit, to Amendment No. 7. The two amendments are linked. In arguing the case that it is difficult to have a clear line of distinction between disease and injury, I cannot help alluding to the Statement to which we have just listened. The damage--to avoid using anything other than a neutral word--involved in those cases is one that I would hesitate with any confidence to classify either as an illness or as an injury. However, if briefed, I could make a case for either.

As the Bill stands it will make a colossal difference to those affected, some of whom may also be civilians, as regards which definition will be applied to their case. For so fine a philosophical point, I do not think that it ought to make a very severe difference to what the claimant recovers which way the coin happens to fall. The purpose of the amendment is to bring the two cases closer together. As the noble Baroness explained very

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clearly, at present things are weighted against the illness in favour of the injury. We want that gap to be narrowed.

Obviously there will be objections about the difficulty of finding the date upon which the illness was first diagnosed. However, I believe that the noble Baroness's answer to that is conclusive. After all, that answer will have to stand whatever procedure is used to deal with personal injury. I say that because in litigation and, indeed, in dealings with insurance companies--as the noble Viscount, Lord Chelmsford, will probably confirm--it is necessary to have a GP's certificate to say when an illness first began. That will be necessary no matter which procedure is used. Therefore, why do we not use the suggested procedure to avoid committing an injustice and also to avoid letting the Government in for a great deal of unnecessary litigation at public expense?

5 p.m.

Lord Mackay of Ardbrecknish: Clause 3 defines the period during which benefits, paid in consequence of an accident, injury or disease for which compensation is claimed, may be recovered. Subsection (2) provides for the relevant period in cases of accident or injury, and subsection (3) provides for the relevant period in cases of disease. In the case of disease--the subject of the amendment--unless a settlement is reached beforehand, the relevant period ends five years after the day on which the claimant first claims a listed benefit in consequence of the disease.

As the noble Baroness and the noble Earl have explained, the amendments proposed would change the "relevant period" in disease cases so that it would be counted not from the date of claim, but from the date of diagnosis of the disease. They have argued that this would bring the treatment of diseases under the scheme more in line with that of accidents where the period of recovery runs from the date of the accident.

However, on reflection, the Committee might agree that industrial diseases often arise many years after exposure, and symptoms increase gradually over time. The date of diagnosis of a disease may not be the same as the point at which, owing to the disease, the victim is no longer able to work and therefore claims a social security benefit. Nor will the date of diagnosis always be a clear and indisputable date; for example, where a second opinion is sought or where a considerable number of tests have to be carried out because of the difficulty of diagnosis. By contrast, the date of claim can be easily identified, as indeed can the date of an accident.

In most cases the date of claim gives a reasonable indication of the point at which the victim's suffering as a result of the disease has caused him to be unable to work. This is broadly comparable to the way in which accident victims are treated. If there is to be a stage following his accident during which a victim is unable to work, this will usually commence immediately after the accident, and lead to a benefit claim at that point. I think that that is quite logical. If one has an accident, it does not take months or years for one to reach a point

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at which one ceases to work and claims a benefit. It is likely that the date of an accident and the commencement of a claim more or less coincide.

Use of the date of claim to determine the relevant period has worked well since the inception of the current scheme in 1990. I believe that there would be significant dangers for the smooth operation of the scheme if the amendments were accepted. I hope I have explained to the Committee why I do not think the comparison made by the noble Baroness and the noble Earl is the correct one. The correct comparison between accident and disease is much more closely related to the date on which someone with a disease has to make a claim. I hope that with that explanation the amendment will be withdrawn.

Earl Russell: If the Minister will forgive me, it is not quite so simple. He suggests that one can distinguish between an accident and an illness by the date after the injury at which evil effects begin to appear. There are old war wound cases, notably cases of a bullet being lodged in some portion of the anatomy, where severe ill effects begin to occur a long time after the bullet was lodged. Is the Minister telling us that those cases will therefore be classified as illnesses?

Lord Mackay of Ardbrecknish: The noble Earl--as often happens--has made a false comparison. Cases such as the one he mentioned would not fall under this legislation at all. They would fall under the war pensions legislation. Under that legislation the case itself determines whether benefits should be backdated.

Earl Russell: If the Minister thinks all bullets are fired in war, he has never listened to the Home Secretary.

Lord Mackay of Ardbrecknish: The noble Earl's question concerned someone who was injured in war. I thought I was therefore answering his question.

Baroness Hollis of Heigham: The Minister has been less than helpful on this matter. He made the point that there might be technical difficulties associated with the date of diagnosis as regards consultants, first and second opinions and so on. That was a smokescreen. We all know that after consultation the Government can agree a recommended point at which the clock begins to tick. For example, that may be at the point of first diagnosis, or when a medical certificate is signed by a GP. Whatever appears to be sensible and reasonable to the Government could constitute the guiding line and everyone would know where they stood. That is a simple, technical matter to overcome. The Minister and I know that that could be sorted out in three minutes flat.

The Minister also made the point that the date at which someone has incurred an injury would coincide with the date of drawing benefit for that injury. Perhaps the Minister would like to revise that view in the light of statutory sickness pay being now an employer's benefit and not something that would normally be

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recouped by government. Therefore there would tend normally to be a six months' discrepancy. I do not think his argument on that point is valid.

Further, the Minister made the point about benefits being linked to loss of work. That, of course, is not true as regards many of the disability benefits which are linked to the degree of disability and not to the point at which someone ceases work. To reinforce the point made by the noble Earl, Lord Russell, I should add that the Minister in no sense dealt with our substantive problem which is that while at extremes there is a clear distinction between an illness and an injury, nonetheless there is a major problem of overlap. For example I referred to chemical poisoning due to the nature of someone's work. In such cases it seems only fair and reasonable that treatment should be similar whether one labels a case injury or illness. The treatment should be parallel in terms of the benefit recoupment system. Will the Minister respond to those points?

Viscount Chelmsford: Before the Minister responds, I must refer to one point that the noble Baroness made; namely, the three minutes to agree the date of diagnosis of an illness. The courts are littered with claims concerning the problems arising out of manifestation of illness. I can assure her it is not a question of deciding these matters in three minutes.

Lord Mackay of Ardbrecknish: I thank my noble friend for underlining a point I was going to make. The noble Baroness makes it look a simple matter to decide the date of diagnosis of an illness. I used a shorthand form when I talked about unemployment benefit, or benefit related to being unemployed--that would be JSA now--because, of course, there are other benefits which are covered in Schedule 2. A person may not have had to give up his job but may still be claiming benefit. From that date the situation is timed and measured. I suggest that is a comparable date to the date on which an accident occurs.

On the question of the six months' delay to payments of recoverable benefit related to SSP, that, of course, applies both to accidents and to disease. Therefore there is not a distinction between the two, such as the noble Baroness sought to make. I am reasonably convinced that, as I have explained it, the position between accidents and disease is broadly comparable in the way the Bill outlines it. If the Committee were tempted to move in the direction the noble Baroness asks--I am not tempted to do that--there would be a considerable mismatch between the possible treatment of disease victims and the possible treatment of accident victims.

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