The Department of Work and Pensions is reviewing the Industrial Injuries Disablement Benefit (IIDB) scheme, having declared it no longer fit for purpose in the modern world of work.
The DWP’s review of IIDB is part of its broader welfare reform agenda and there is no clear proposal for an alternative occupational injury scheme.
Below are set out Thompsons’ main points made to the DWP in its response to the IIDB reform consultation.
There is a compelling case for a “no fault” scheme, separate to the tort system (the system whereby someone can be sued for damages) for claiming compensation. The scheme should not be anything other than “no fault”, free for all, and payable regardless of financial status.
People who have been injured or made ill due to their employment and who are unable to work as effectively as in the past, or are unable to work at all, are entitled to financial support.
Workers have little or no control over their work environment. Their health at work is in their employer’s hands. It is a fact that the majority of people injured at or made ill through their work are doing lower paid, usually (but not exclusively) manual jobs. They are therefore likely to be more economically vulnerable than other categories of workers.
While any injured or ill worker able to establish negligence on the part of their employer will be able to claim compensation from their employer / insurers, many will not. This is either because it is not possible to establish negligence, or because it is not possible to trace former employers or their insurer. This is especially so in asbestos and other occupational disease claims.
At least 10 per cent of mesothelioma claims are unsuccessful because it is not possible to trace an employer or insurer.
It is therefore vital that those whose health and ability to work have been seriously compromised or ended, but who cannot claim damages from an employer, have access to the safety net of a “no fault” benefits scheme.
Although there is benefits recovery in successful personal injury claims (through the Compensation Recovery Unit), any benefits scheme must be kept separate from the tort system, ensuring that those who can sue an employer or former employer or insurer for compensation continue to have the right to do so. The two are not mutually exclusive. Indeed the two systems complement each other.
The purpose of a scheme
The IIDB scheme is also, importantly, more than just a financial crutch. It provides evidence to vulnerable, injured or ill people that society cares and is genuinely committed to helping them to cope better with the circumstances they are in.
Individuals pay National Insurance (NI) contributions because they are required to do so but also as a form of insurance. They should have the reasonable expectation that it will result in a return when a genuine need arises.
Rehabilitation should be a key part of any scheme, and the government appears committed to that principle. However, while rehabilitation aims to encourage people back into appropriate work, it must not be a stick to punish or force people into returning to work too early or into inappropriate work. Rehabilitation should be used appropriately and money for it should be ring-fenced within the scheme.
There will, however, be cases where rehabilitation is inappropriate or unsuitable and where that occurs individuals must not be penalised for failing to take up the option of rehabilitation. If rehabilitation fails, they must not be penalised in terms of the benefits they receive.
Financial incentive to improve workplace health and safety
The scheme should include a financial incentive to employers to improve health and safety procedures and to protect their workers from ill health and injury. This would reflect the social responsibility that employers have. They should be compelled to make a contribution to the social costs of caring for those too ill to return to work or of assisting people to return to work and to cope with their circumstances.
Employers should be required to report all accidents to the Health and Safety Executive and should have responsibility, if they are negligent, to pay part of an injured worker’s benefits.
Their contributions to the scheme should reflect the injuries they have caused. Rather than just paying in cases where negligence is established, they could be required to pay to the DWP all or a proportion of the IIDB paid to employees injured by them. Alternatively their contributions should be based on the percentage of their workforce that is in receipt of IIDB over a certain period.
Apart from the employer contribution, the scheme should continue to be funded on the basis of a social contract between the individual and the state whereby the individual pays contributions, which are levied across the piece, and the state pays out when the need arises.
This principle avoids any profit motive for the insurance industry which, if responsible for funding the scheme, might avoid paying out in order to guard its profits.
The rights of union safety reps
The TUC recently highlighted the problem faced by union safety reps who are being denied their legal entitlement to time off for training and to undertake their duties of inspection and investigation. Union safety reps also report that their work is being undermined by employers not acting on their safety concerns.
The evidence is that unionised workplaces are safer workplaces and that health and safety reps play a crucial role in this. The new scheme should enhance the role of the safety rep, by confirming their role and rights in law as has been done with union learning reps.
Equity, transparency and simplicity
Thompsons sees many clients who have been forced to undergo regular and repeated interviews and medical examinations in order to claim and to continue to receive IIDB.
While this demonstrates a flexibility that some benefits lack, there is a dearth of information that often leaves vulnerable people confused. They may be unable to understand why one day they are judged to have a certain level of disability, and yet only weeks later, a much lower level when they themselves feel no discernible difference in their condition.
There must be increased transparency in all decisions regarding eligibility for IIDB and greater simplicity in the process. This should include a plain English letter and leaflets explaining the process, and a helpline so claimants can speak to a DWP benefits advice worker.
Decisions on entitlement should be done as quickly and informally as possible, based on medical evidence and the simple balance of probabilities test. In other words, is it more likely than not that the condition was caused, aggravated and/or accelerated by the employment?
Clearly this would be regardless of whether or not there was negligence on the part of the employer.
Self-employed and agency workers
All workers, including some self-employed and agency workers, should be covered by the scheme. The self-employed may pay reduced NI contributions in recognition that they may not be entitled to certain benefits, including IIDB, but many have no more control over their working environment than an employee.
A freelance or contract worker may be working in exactly the same conditions as an employee. Indeed contract and agency workers increasingly make up the bulk of workers in many organisations and where they have no more control over their conditions than an employee, their employment rights and entitlement to work-related ill health benefits should be the same as an employee.
Too many employers are hiding the true relationship between them and a worker to avoid the obligations of being an employer. It is a scam that should not prevent the worker receiving benefits.
Thompsons would support a strict control test, as per the definitions given in existing legislation including the Employment Relations Act 1996 and the National Minimum Wage Act 1998 and testable in a Court of Law, of the relationship between the worker and the employer to establish eligibility for the scheme. Agency workers should have the same rights as all other categories of worker.