Policy Responses 2007 Industrial injuries.htm

1.1 Law Centre (NI) is a public interest law non-governmental organisation. We work to promote social justice and provide specialist legal services to advice organisations and disadvantaged individuals through our advice line and our casework services from our two regional offices in Northern Ireland. We provide a specialist legal service (advice, representation, training, information and policy comment) in five areas of law: mental health, community care, immigration, social security and employment to almost 500 member agencies. Members include local Citizen Advice Bureaux, independent advice agencies, local solicitors, trade unions, social services, probation offices, constituency associations of local political parties, libraries and other civic organisations.

1.2 The consultation paper on the Industrial Injuries Disablement Benefit (IIDB) scheme is of particular relevance to Law Centre (NI) as it cuts across many aspects of our work. This response has been informed by the work of our mental health, employment and social security practitioners who provide representation relating to the issues highlighted in the consultation paper.

1.3 We welcome the opportunity to respond to this consultation document. We have made some general comments in response and address some of the questions which were posed for consultation.

We welcome the move by Government to reform this area of social security and are encouraged by some of the proposals within the consultation paper. We comment in more detail on some further recommendations within the body of the paper and have highlighted the appropriate paragraphs for ease of reference. In summary, we recommend:

Q1 What is the case for a ‘no-fault’ occupational injuries and diseases scheme?

3.1 A no-fault scheme ensures equal and consistent protection for those who suffer injuries no matter who is at fault. This is a fair and equitable way of providing assistance to those affected by occupational injuries or diseases. It recognises the drop in income and impact of the loss of faculty and ability caused by industrial injury and disease.

3.2 The purpose should be to provide timely care and rehabilitation that gets people back to work or independence where possible, while minimising personal financial loss through the provision of financial assistance to an individual while he/she is off work.

3.3 We welcome the comments within the paper that refer to the importance of work as a route out of poverty. Approximately 20 per cent of the population of Northern Ireland are living in income poverty, equivalent to around 350,000 people.[1] The provision of support to enable those who have suffered or are suffering from an industrial injury or disease to return to work is a key area which, if managed correctly can have a significant impact on the reduction of poverty in Northern Ireland as elsewhere in the United Kingdom. Any review of work-related benefits, however, needs to ensure that careful consideration is given to whether returning to work is the most appropriate option for the individual concerned. Any new scheme needs to recognise that some claimants will be unable to return to work and will require ongoing financial support.

3.4 We are aware the current scheme does not offer rehabilitation to those in receipt of IIDB. This is an area that warrants further attention, and we welcome the comments in the paper that any reform will need to consider including vocational rehabilitation in a modern IIDB scheme. Recent developments in other benefit areas, namely the changes proposed to the administration of Incapacity Benefit in the Welfare Reform Bill, have demonstrated a renewed commitment to returning people to work. The provision of effective and timely rehabilitation services as part of the IIDB scheme would greatly assist in the reduction of time spent on IIDB and help to create a more positive and controlled return to work for those who have an occupational injury or disease. Any such provision must be voluntary and not contain a level of compulsion or sanctions for failure to comply.

3.5 A further area that should be investigated is the inclusion of injury prevention as part of any new scheme. There needs to be a commitment by the Government to reducing the causes of occupational injuries and diseases. The inclusion of injury prevention as part of a new scheme may assist in the streamlining of education regarding work place safety and in the promotion of safer working practices.

3.6 Potential and current claimants should be given the opportunity to access compensation and benefit schemes. Consideration, however, should be given to the best means of providing access to dual schemes for individuals. While the current scheme allows a claimant to receive IIDB and pursue civil law compensation through the courts, the process of then recovering benefit payments from compensation is complicated and often time consuming.

3.7 Other international scheme should be investigated as potential models for future reform in the United Kingdom. For example, the New Zealand system administered by the Accident Compensation Corporation provides accident cover for all New Zealand citizens, residents and temporary visitors to New Zealand but people do not have the right to sue for personal injury, other than for exemplary damages. The New Zealand scheme provides ‘weekly compensation’ for those unable to work and also a ‘lump sum’ payment scheme, a one-off payment to compensate for permanent impairment resulting from an injury paid in addition to any other entitlements or assistance received.

Q4 What support should a scheme offer and how should any support be provided?

3.8 As previously mentioned we believe the current remit of the scheme should be extended to include support for rehabilitation and injury prevention. Any scheme of this nature needs to be holistic in providing support for claimants, including benefit payments to compensate for lost income, and rehabilitation support to assist with a return to work, if medically possible. Both vocational and medical rehabilitation should be provided and monitored within any new scheme.

Q5 How should a new scheme be integrated with measures for the prevention of work-related accidents and illness, rehabilitation, retention, retraining and return to work?

3.9 We welcome the principle behind the reform of IIDB to support and encourage people in receipt of IIDB to move into employment, where they are able to do so. This is a considerable change of focus from the current system and it is largely welcome.

3.10 To ensure the integration of a new scheme will measures for the prevention of work-related accidents and illness and rehabilitation consideration needs to be given to the creation of new units or departments to administer IIDB and facilitate injury prevention.

3.11 A new unit/department could be created within Jobcentre Plus to be responsible for the management of all IIDB claimants. Each claimant should be appointed a Case or Claims Manager, similar to the Employment Adviser’s appointed to Incapacity Benefit claimants. The Case/Claims Manager would co-ordinate vocational rehabilitation and assist the claimant to retain his/her current employment or retrain in alternative employment to facilitate a return to work. A new unit/department will ensure a better service for the claimant as he/she will have one Case or Claims Manager to work with them through the life of their claim coordinating benefit payments and vocational rehabilitation, including retraining if required. The Case/Claims Manager should also work with employers to facilitate a timely return to work as soon as medically practicable. In Northern Ireland such arrangements will need to come through the Department for Employment and Learning who will need to liaise closely with the Social Security Agency.

3.12 An injury prevention unit/department should come under the remit of the Health and Safety Executive for Northern Ireland and be responsible for developing an injury prevention strategy to reduce the incidence of serious injuries, their severity and their costs and to create a safer community to live and work in. The injury prevention strategy should not be limited to work related injuries but could include wider injury prevention measures for domestic and social injuries. A major focus, however, will be on the reduction of work related injuries.

3.13 The injury prevention unit should work with key employer organisations, unions and industry training organisations to develop and implement tailored injury prevention initiatives in high-risk industries and areas of employment. The unit should identify employers experiencing high injury rates and provide assistance and education to improve safety management and endorse specific injury type programmes across industries and individual workplaces.

Q6 How can we ensure that the principles of equity, transparency and simplicity are met?

3.14 The proposed scheme as detailed above should ensure that the principles of equity, transparency and simplicity are met. Claimants will all have access to one Case/Claim Manager to provide them with one to one support. Having one direct point of contact will ensure greater transparency and simplicity to how the IIDB claim is managed.

3.15 The need to ensure that the scheme remains independent of employers and insurers is important. Employers, however, will become more involved if vocational rehabilitation becomes an active element of the new scheme. Considerable care will need to be taken to ensure claimant confidentiality at all stages of the process and that the employers are not able to unduly pressurise the claimant to return to work before medically able.

Q7 How should inclusion of injuries and diseases in the scheme be decided?

3.16 While the current scheme provides for the payment of IIDB where a person is suffering from a mental injury, by way of an industrial accident, it is unduly complex. The scheme requires the identification of a specific incident or ‘trigger’ as the cause of any mental injury or decline in mental health. This can often be problematic as a mental injury, including workplace stress, can gradually build over time because of various work-related events. In isolation, these events may seem minor but they can prove to be significant when taken together. Many potential IIDB claimants, therefore, may not be able to pinpoint one specific incident as the cause of his/her mental injury, which excludes them from cover under the scheme.

3.17 The further requirement to demonstrate a 14 per cent disability as a result of a work place injury also complicates the IIDB scheme for claimants with a mental injury. Given the complex nature of mental injury and the lack of medical professionals in Northern Ireland who are able to provide expert opinion on the nature and cause of mental injury the ability to meet this threshold is restricted. We recommend that as part of this review the Government consider putting measures in place to streamline and simplify the process to enable more claimants to qualify for IIBD as a result of a work related mental injury.

3.18 Recent research has found that almost a tenth of Northern Ireland’s working population is claiming benefits for mental health and 40 per cent of all awards for Incapacity Benefit or Severe Disablement Allowance are for mental or behavioural conditions.[2] In the UK as a whole, mental ill health leads to an estimated 80 million workdays being lost each year to stress, depression and anxiety.[3] Not addressing mental health problems in the workplace cost business and the public sector an estimated £9 billion each year.[4]

3.19 The workplace has a powerful effect on an individual’s health and workplace stress can lead to various debilitating mental health conditions. With various research supporting the significant rise in mental ill health in the population of Northern Ireland consideration needs to be given to the cause and effect of the workplace. We would support the inclusion of measures to simplify the process for the acceptance of mental injury as an occupational injury within any new scheme. We appreciate that this is a departure from the current system but believe it is one that is essential. These proposals will greatly assist in the recognition and acceptance of the limited capabilities of those with work related mental injuries who need benefit assistance as a result of their condition. Further, if mental injury as an occupational injury is more widely recognised within the IIDB scheme, employers may take more responsibility for the promotion and protection of employee’s mental health within the workplace. Employers will therefore invest more time and resources into ensuring that adequate support is in place for those suffering from work-related mental health issues.

3.20 We are concerned that the current list of prescribed diseases and occupations for which they are prescribed within the Social Security (Prescribed Diseases) Regulations 1985 may no longer adequately reflect the modern industrial climate. We welcome consideration, as part of this review, to the redrafting of this list to address current diseases and/or injuries and the occupations they relate to. We also assume that the Government will ensure parity between the prescribed diseases and injuries for the IIDB and those for the War Pensions Scheme.

3.21 The decision on entitlement to IIDB and/or vocational rehabilitation will be informed by a variety of sources, including the information provided by the claimant and his/her employer, a claimant’s GP, further specialist medical opinion if required and the Case/Claims Manager.

3.22 As stated within the paper while cause and effect is reasonably clear for the majority of accidents, specialised medical and statistical evidence is often necessary to establish the occupational causation of diseases. This will also be required if mental injury is more widely included within the remit of the IIDB. We recognise that entitlement to IIDB must continue to be restricted to work-related accidents and illness and that IIAC will continue to provide valuable support in order for entitlement decisions to be reached.

Q9 How could the scheme best meet the needs of individuals affected by injury or disease caused through work?

3.23 The scheme needs to provide a holistic approach to the needs of any claimant. This means that not only should the claimant receive appropriate medical rehabilitation, a weekly benefit or lump sum financial compensation but also vocational rehabilitation to assist with a return to work, where possible and appropriate. Individuals in receipt of IIDB have already proven their capacity and desire to work and this should be capitilsed on through the inclusion of vocational rehabilitation. Vocational rehabilitation should include assistance with a gradual return to work if a claimant is able to return to his/her previous employment and may involve the Case/Claim Manager assigning an occupational therapist to work with the claimant and the employer to develop a programme for a gradual return to work while medical rehabilitation is completed. If a claimant is unable to return to the same employment he/she will need to be supported in finding alternative duties with the same employer if possible.

3.24 If as a result of the work-related injury or disease the claimant is unable to return to the same employment and suitable alternative duties cannot be found consideration will then need to be given to retraining or assisting a claimant with job seeking. This could involve a scheme similar to that outlined in the Welfare Reform Bill for those Incapacity Benefit claimants who are placed in the Work Related Activity Group.

3.25 As highlighted within the paper there have been significant changes in the employment market in the UK since the IIDB scheme was originally introduced. It is clear that the exclusion of self-employed people is no longer justifiable as they now account for approximately 12 per cent of all employment. The scheme will need to include the self-employed as continuing to discriminate against this section of the population is unjustifiable. Similarly, people made ill through environmental exposure should also be covered.

3.26 The new scheme should continue to be funded through general taxation. Although, we would welcome further information regarding the level of recovery of benefits by the Government from compensation awarded in the civil courts.

3.27 As referred to at points 3.10-3.13 we recommend the creation of a new unit or department within Jobcentre Plus to administer the new scheme.

Q13 How can any new scheme be made simpler, and more cost effective, to administer?

3.28 While we recognise that initial costs in altering the IIDB will be considerable the ongoing effects of more proactive vocational rehabilitation and a closer management of claimants in receipt of IIBD will ensure that claimants who previously may have remained on IIDB for longer will now return to work faster through effective vocational rehabilitation.

Q14 How should any future scheme relate to other forms of compensation or benefit and ensure that any benefits in the scheme do not conflict with existing benefits?

3.29 We agree that any new scheme will need to ensure that IIDB and related benefits do not conflict with existing benefits. We have no further comment on how this should work in practice.

3.30 As previously mentioned much can be learned from drawing on international experience. As already mentioned the New Zealand scheme is one example of how to effectively manage work-related injuries. The New Zealand scheme, however, covers all personal injuries and mental injuries, as a result of sexual abuse or sexual assault, and is not limited to merely work-related injuries. The New Zealand scheme also provides social rehabilitation alongside medical and vocational rehabilitation, including childcare, travel costs for rehabilitation appointments and educational support.

3.31 In consideration of international comparisons consideration should be given, as part of the review, to the need to address the gaps in reciprocal agreements under the current IIDB scheme. There are no reciprocal agreements for industrial injuries benefits with Canada, New Zealand or the USA. This warrants further attention to ensure international consistency in access to benefit support.

4.1 We believe this consultation process creates a significant opportunity to capitalise on the work that has already begun through the Welfare Reform Bill to continue to redesign the benefits system in such a way as to have a significant impact on many individuals who require support and assistance to return to work.

4.2 Law Centre (NI) welcomes the opportunity to respond to this consultation paper. We trust you will find our comments helpful. If there is any further way in which we could contribute to this process we would welcome the opportunity to do so.

[1] Peter Kenway, Tom MacInnes, Aveen Kelly and Guy Palmer, Monitoring poverty and social exclusion in Northern Ireland 2006 at page 57

[2] Peter Kenway, Tom MacInnes, Aveen Kelly and Guy Palmer, Monitoring poverty and social exclusion in Northern Ireland 2006 at page 110-111

[3] Future Foundation, Mental Health: the last workplace taboo, for Shaw Trust June 2006

[4] Department of Health, National Service Framework for Mental Health, 1999