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Lord Skelmersdale: Certainty is all very well, and I appreciate that the Minister is trying. However, the 12 months suggested by the amendment is a very certain period. Saying that the amount due is up to 33,000 is very elastic and does not produce certainty at all. I cannot accept that argument. I wish to test the opinion of the Committee.

12.52 p.m.

On Question, Whether the said amendment (No. 416) shall be agreed to?

Their Lordships divided: Contents, 13; Not-Contents, 42.

Division No. 3


Attlee, E.
Barker, B.
Blatch, B.
Clement-Jones, L.
Colwyn, L.
Cox, B.
Howe, E.
Hunt of Wirral, L.
Noakes, B. [Teller]
Onslow, E.
Roper, L.
Skelmersdale, L. [Teller]
Strathclyde, L.


Acton, L.
Amos, B. (Lord President)
Andrews, B.
Archer of Sandwell, L.
Bach, L.
Bassam of Brighton, L.
Brett, L.
Brooke of Alverthorpe, L.
Burlison, L.
Campbell-Savours, L.
Carter, L.
Chandos, V.
Crawley, B.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Dean of Thornton-le-Fylde, B.
Desai, L.
Evans of Temple Guiting, L.
Farrington of Ribbleton, B.
Gilbert, L.
Golding, B.
Gordon of Strathblane, L.
Grocott, L. [Teller]
Hilton of Eggardon, B.
Hollis of Heigham, B.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Jones, L.
Jordan, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mitchell, L.
Pendry, L.
Plant of Highfield, L.
Randall of St. Budeaux, L.
Sawyer, L.
Simon, V.
Warner, L.
Warwick of Undercliffe, B.
Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

20 Oct 2003 : Column 1428

1.2 a.m.

Lord Strathclyde: It is now just after one o'clock in the morning. The noble Lord the Government Chief Whip is still in the Committee. Does he realise that we have completed a page and a bit of amendments on the groupings list so far today, and that there is at least three-quarters of a page still to do?

We have an agreement in the House to try to aim for a 10 o'clock cut-off, which has been very difficult to achieve in recent weeks. We all understand why that is. However, it is now likely that we may have to run for another three or four hours. Might the noble Lord consider that we should continue for another hour this evening—that would bring us to four hours beyond the 10 o'clock cut-off—and then complete this Business on Thursday morning? That should give us enough time. It is a reasonable and sensible offer, and fits in entirely with the view taken by many Peers that doing Business at this hour of the morning is not only unreasonable, but not very effective.

Lord Grocott: I suggest that we see how the Committee proceeds. Believe me, I infinitely prefer to do our Business at a different time of day. I do not think it sensible to try to negotiate across the Dispatch Box. As I am here until I switch the lights off and put the cat out, I would be more than happy to have such discussions but, as the noble Lord knows, it is not sensible to try to have them on the Floor of the House.

The Earl of Onslow: Actually, I cannot see why that is not sensible. My noble friend has put forward a perfectly decent suggestion. If there is a bad reason for saying no, say no. Why cannot we all be let into the secret? It is a great myth that we cannot negotiate on the Floor of the House. What is Parliament for except negotiating across its Floors? I spoke earlier about exactly that point. I understand the difficulty that the noble Lord is in, because he and I had a civilised conversation outside where I think he understood me, and I him. The fault is in agreeing to stop at 10 o'clock. It would have been much wiser not to, and then we would have all accepted that occasionally these events are inevitable. They become unacceptable when the rules are that we only play cricket on a cricket pitch, and then suddenly because it is inconvenient to play cricket we have to play football—even though we have reached agreement. If we know that we can play cricket or football that is much fairer.

When one says that we will not go beyond 10 o'clock, half past 10, or 11 o'clock, that is fair enough. But then to go on very late is unreasonable—that has happened not only today but last week as

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well. I cannot see why the matter cannot be agreed across the Floor of the House. There is no great secret. We are not delving into great affairs of state. There just seems to be a sensible proposal put forward by a sensible man to a sensible man on the other side of the House.

Lord Roper: I believe that the Government Chief Whip has suggested that it would be useful to have further discussions outside the Chamber, and I hope that that suggestion, which seemed a good response to the Leader of the Opposition, is accepted.

[Amendment No. 417A not moved.]

On Question, Whether Clause 146 shall stand part of the Bill?

Lord Skelmersdale: I apologise to the Committee for not having tabled the request. Before we leave Clause 146, the notes on clauses assume that the new scheme will be operated by the Compensation Recovery Unit of the Benefits Agency as heretofore. Before the Health Act 1999 came into force a number of companies were contracted to the NHS to recover from insurance companies the cost of treating road accident victims under the provisions of existing legislation. Those organisations, of which by far the largest was the National Road Traffic Accident Claims Centre—NATRAC—were put summarily out of business without compensation when the 1999 Act came into force. They were obliged to pass to the CRU all their work in progress, again without payment.

Regarding this Bill, has a formal comparative analysis been made of the costs and benefits of a private versus public sector solution? The history of the CRU in that field is not a happy one, although I understand that the teething problems that they experienced initially have now been resolved. For example, I accept that the CRU has introduced a new computer programme to connect to all NHS trusts. But that does not make any difference to my question. Also, have the Government estimated the costs of collection compared to the estimated revenues of the NHS? We know from the notes on clauses and the regulatory impact assessment that about 150 million will be raised for the NHS. That is about half as much again as has been raised now.

Above all, why has the CRU not been benchmarked against private sector bids for cost effectiveness? What is the cost assumed to be for the CRU? Why have we not been informed in the various pieces of paper accompanying the Bill? I understand that the cost now to the CRU is 1.9 million to recover 100 million under the existing road traffic scheme. I ask again: what are the anticipated costs under the new scheme to recover an estimated 150 million?

Lord Warner: I do not have the detailed figures in my head at this time of night and I shall write to the noble Lord. However, I would ask him to accept that the CRU is an established organisation, so the relative costs of expanding it to cover the new scheme

20 Oct 2003 : Column 1430

are fairly modest compared with the amounts of money that will be generated. I am happy to write to the noble Lord with more chapter and verse to try to reassure him on that matter.

Earl Howe: Was a benchmarking exercise done as regards private versus public sector solutions, or was an executive decision taken to run along with the present system?

Lord Warner: We have an established organisation where the overheads are effectively covered. However, I am not sure that I have in my head the exact answer to the noble Earl's point and I will cover it in the letter I promised to write to his noble friend.

Clause 146 agreed to.

Schedule 10 [Recovery of NHS charges: exempted payments]:

Lord Hunt of Wirral moved Amendment No. 417B:

    Page 146, line 19, at end insert—

"Any payment made direct to a provider of treatment, whether that provider is a health service hospital or other organisation or individual providing treatment."

The noble Lord said: The grouping of Amendments Nos. 417B, 430D and 477ZA would under normal circumstances, were it not almost quarter past one in the morning, have given rise to a wide-ranging debate on rehabilitation. I know that many noble Lords wanted to participate in the debate, but sadly, because of the hour, they will not be able to do so.

Why is rehabilitation so important? It is because there is a genuine wish to try to overcome the serious problems caused to the economy by the rising bill having to be paid by industry for sickness and absence from work. Wearing my hat as president of the All-Party Group on Occupational Health and Safety, I can state that we recently had a report from the Trades Union Congress estimating that the cost of sickness and accidents at work was rising above 17,000 million a year. This is why rehabilitation is such a key issue.

It is also a key issue for the Government. Indeed, several departments have clearly said that rehabilitation is a priority. The Department for Work and Pensions stressed that in considering the future of employers' liability insurance. The Department of Health, in that outstandingly good report from the Chief Medical Officer, Making Amends, has already stressed the need for a wide-ranging policy on rehabilitation. The Treasury has several times indicated that we cannot go on in the way that we are with the rising cost. The Department of Trade and Industry has on a number of occasions demonstrated the need for a greater emphasis on rehabilitation. I know that in this debate many noble Lords would have wanted to stress the fact that at last there are a number of opportunities to do something fundamental about tackling rehabilitation.

Before I come to Amendment No. 477ZA, which seeks to implement one of the proposals that I know the Government are presently considering, perhaps I

20 Oct 2003 : Column 1431

may deal with the detail of Amendment No. 417B. This amendment would insert into Schedule 10—that is, the list of exempt payments which a compensator can make without having to repay NHS treatment charges—a new item to cover treatment costs paid by the insurer direct. Particularly in the employers' liability field, where, of course, these provisions will take effect for the first time, there are schemes where employers or insurers themselves provide treatment services for anyone who is off work for a certain period of time, whether or not involved in a compensation claim. Therefore, it is clearly right that the Government should seek to encourage employers and their insurers to act in this positive way. Equally, it is right that new legislation should not discourage such measures.

I know from my own experience that under such schemes it is possible that an employer or an insurer will make a payment for treatment well before liability for the accident or the incident has been resolved. Surely it is in everyone's interests that that treatment should be provided so that the employee can get back to work as soon as practicable, where appropriate.

There are some wider issues here, too, which I have shared with the Minister. Those who run our specialist units for severe injuries—that is, spinal and head injuries—tell me that accident victims spend too long in those units, when better provision of treatment and other facilities could get them back into the community rather sooner. That has a knock-on effect on the ability of those units to treat other victims of such injuries. That, in turn, means that the victims find themselves being treated on non-specialist wards and not receiving the same level of care as they could in a specialised unit. With the best will in the world, that will lead to the worst possible outcome for those individuals.

Therefore, I would like to think that payments for rehabilitation treatment could join the list of exempt payments. In practice, the number of cases where such payments are made and where there is then no further compensation is not high. The other important factor is that, under the current version of the Bill, any payment for treatment would trigger liability for NHS charges. That might well cause some companies to pause before making payments for rehabilitation.

The Minister very kindly shared with me his general support for Amendment No. 417B by saying that it is entirely in line with the points made by the Department for Work and Pensions in its review of employers' liability compulsory insurance. But he added:

    "In the sorts of cases we are talking about, it is more than likely that the injured person will have received NHS hospital treatment before they get to the stage of needing physiotherapy or other rehabilitation services".

He continued:

    "We would not want to encourage compensators to try to persuade the injured to accept payment of treatment costs instead of a personal compensation payment to which they are fully entitled".

20 Oct 2003 : Column 1432

Perhaps I may respectfully say to the Minister that there is no wish on my part, or on the part of any of those to whom I have referred, to persuade the insured to accept some payment on treatment instead of compensation. That is not on the agenda. We are talking about payments made at an early stage to obtain the vital treatment necessary to get people back to work. We want to encourage those payments, even though liability issues have still to be sorted out and may well result in there being no liability at all and therefore no compensation. So it is very different from the description that the Minister has put in his letter to me. I want to see us encouraging insurers to pay for rehabilitation even though liability is not yet determined.

Amendment No. 430D would insert at the end of the provision requiring the Secretary of State to repay money recouped by the relevant NHS trust the words,

    "as the result of accidents to which section 146 applies".

The intention of those words is to ensure that money received by the NHS trust as a consequence of these provisions is used for the supply of services to accident victims as a whole.

Previously I referred to rehabilitation. Surely it is one of the key drivers behind much of government policy that rehabilitation services should be improved and made more available. I would like to see—the Minister has explained to me that it is impossible to ring-fence the money—a greater vision on the part of those formulating policy as to how best to proceed. I shall not press the Minister for a detailed response tonight as it is far too late. I would not want to press him in that direction.

However, Amendment No. 477ZA seeks to repeal Section 2(4) of the Law Reform (Personal Injuries) Act 1948. That section provides that when a court is assessing a case for personal injury damages, no account at all should be made of the availability of treatment and care under the NHS. As a consequence of that section, many seriously injured accident victims are able to claim for the cost of professional care provided outside the NHS when the NHS still has an obligation to provide the necessary treatment. Many of those claimants will purchase such professional care so the money goes where it is intended—I am sure that is the overwhelming majority of cases—but research has shown that damages paid for nursing care are frequently not used for that purpose. Therefore, society is providing double compensation as it has to fund both the necessary insurance premiums and the cost of the National Health Service.

Earlier I referred to the Chief Medical Officer's report, Making Amends. That recommended the repeal of Section 2(4) in clinical negligence cases. I was most interested to read the noble and learned Lord the Lord Chancellor's response to a question from the noble Baroness, Lady Finlay of Llandaff, on 8th September 2003, HL4239, when the Lord Chancellor said:

20 Oct 2003 : Column 1433

    "The report of the Chief Medical Officer, Making Amends, recommended that Section 2(4) of the Law Reform (Personal Injuries) Act 1948 should be amended so that the costs of future care in any award for clinical negligence made against the National Health Service should no longer reflect the cost of private treatment".

That recommendation is currently the subject of consultation. However, the answer continues, most importantly:

    "The Government intends to consider the implications of the recommendation for personal injury claims generally".—[Official Report, 8/9/03; col. WA 2.]

That opens an opportunity that I hope the Government will take. I have deliberately inserted this proposed amendment in the repeals consequent upon the provisions setting up foundation hospitals. It is hoped that those hospitals will have greater financial and management freedom and, therefore, will be able to look at a range of schemes that could involve the private sector. There must be scope for finding ways to fund better and more effective rehabilitation facilities, certainly in those hospitals, in a way that would involve case managers—I declare an interest as chairman of the Case Management Society of the UK—who would ensure that those suffering injury are provided with the necessary support to bring about an early return to work where appropriate.

So, what I am really saying to the Minister—and I am not pressing him now—is that there is a real opportunity for some joined-up thinking on the part of the Government, rather than to perpetuate this system of seeking to recover comparatively small payments through this very intricate system that often, in many cases, costs just as much to collect as the actual money which is recovered. Surely, we could find a better way to have a really viable private finance initiative, which could join together with private sector finance and the National Health Service itself, in seeking to create far better rehabilitation services within NHS hospitals, so that people, however an injury may have been caused, will be able to get back to work at a much earlier stage. I beg to move.

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