Statutory Instrument 1988 No. 668

The Pneumoconiosis etc. (Workers' Compensation) (Payment of Claims) Regulations 1988

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© Crown Copyright 1988

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1988 No. 668

SOCIAL SECURITY

The Pneumoconiosis etc. (Workers' Compensation) (Payment of Claims) Regulations 1988

The Secretary of State in exercise of the powers conferred on him by sections 1 and 7 of the Pneumoconiosis etc. (Workers' Compensation) Act 1979^[1] and of all other powers enabling him in that behalf hereby makes the following Regulations, of which a draft has been approved by resolution of each House of Parliament:—

Citation, commencement, revocation and transitional provision
    1.—(1)  These Regulations may be cited as the Pneumoconiosis etc. (Workers' Compensation) (Payment of Claims) Regulations 1988 and shall come into force on 11th April 1988 in relation to any case in which a person first satisfies the conditions of entitlement to a payment under the Act on or after that date.

    (2)  Subject to paragraph (3), the Pneumoconiosis etc. (Workers' Compensation) (Payment of Claims) Regulations 1985^[2] are revoked.

    (3)  Notwithstanding the revocation in paragraph (2), those Regulations shall continue to have effect as provided in those Regulations in any case in which a person first satisfies the conditions of entitlement to a payment under the Act before 11th April 1988.

Interpretation
    2.—(1)  In these Regulations unless the context otherwise requires:—
 (a) "the Act" means the Pneumoconiosis etc. (Workers' Compensation) Act 1979;
 (b) "the appropriate percentage" means, in the case of any disease, the percentage specified in section 57(1) of the Social Security Act 1975^[3] or, if Regulations have been made under section 77 of that Act specifying a different percentage in relation to that disease, the percentage specified in the Regulations;
 (c) "the appropriate period" means, in the case of any disease, the period specified in section 57(4) of the 1975 Act or, if Regulations have been made under section 77 of that Act specifying a different period in relation to that disease, the period specified in the Regulations;
 (d) "claim" means a claim made in accordance with the Pneumoconiosis etc. (Workers' Compensation) (Determination of Claims) Regulations 1985^[4];
 (e) "determination" as respects a Pneumoconiosis Medical Board, (or Special Medical Board, as the case may be), a Silicosis Medical Board or a Medical Appeal Tribunal means a determination in connection with a claim for disablement benefit;
 (f) "disease" means a disease to which the Act applies, namely pneumoconiosis, byssinosis, diffuse mesothelioma, primary carcinoma of the lung and bilateral diffuse pleural thickening;
 (g) "extent of incapacity" means extent of incapacity, either "total" or "partial", assessed by a Silicosis Medical Board for the purposes of determining entitlement to an allowance under a scheme made, or having effect as if made, under section 5 of the Industrial Injuries and Diseases (Old Cases) Act 1975^[5] or under any corresponding provision of the former Old Cases Acts^[6];
 (h) "percentage assessment" means percentage disability assessed in respect of a disease by a Pneumoconiosis Medical Board, (or Special Medical Board, as the case may be), or Medical Appeal Tribunal, as the case may be, for the purpose of determining entitlement to disablement benefit under section 76 of the Social Security Act 1975 or under any corresponding provision of the former Industrial Injuries Acts^[7];
 (i) "primary carcinoma of the lung" means primary carcinoma of the lung where there is accompanying evidence of one or both of the following:—
 (i) asbestosis
 (ii) bilateral diffuse pleural thickening;
 (j) "Secretary of State" means the Secretary of State for Employment.

    (2)  Any reference in these Regulations to a numbered regulation shall be construed as a reference to the regulation bearing that number in these Regulations and any reference to the Schedule shall be construed as a reference to the Schedule to these Regulations.

Payments to persons disabled by a disease
    3.—(1)  The amount of any payment made to any person disabled by a disease who has made a claim for, and in respect of whom there is entitlement to a payment under the Act, shall be determined in accordance with Table 1 of the Schedule.

    (2)  For the purpose of a determination as respects Part A of Table 1 of the Schedule the age of the person concerned and the percentage assessment shall be related to the first determination that he was suffering from the disease in the following manner—
 (a) in any case where the said determination was a determination of a Pneumoconiosis Medical Board, (or Special Medical Board, as the case may be), the age of the person concerned shall be the age of that person at his last birthday preceding the first day of the month in which that determination was made, and the percentage assessment shall be that which is applicable either at the time or retrospectively for the period immediately following the date of the determination by that Board;
 (b) in any case where the said determination was a determination of a Medical Appeal Tribunal, the age of that person shall be his age at his last birthday preceding the first day of the month in which his case was last considered by a Pneumoconiosis Medical Board, (or Special Medical Board, as the case may be), (being at a time prior to the aforesaid determination of a Medical Appeal Tribunal) and the percentage assessment shall be that which is applicable for the period immediately following the date of that last consideration by a Pneumoconiosis Medical Board, (or Special Medical Board, as the case may be).

    (3)  For the purpose of a determination as respects Part B of Table 1 of the Schedule the age of the person concerned shall be the age of that person at his last birthday preceding the first day of the month of the first determination of a Silicosis Medical Board that he was suffering from the disease, or in the case of diffuse mesothelioma, the age of the person concerned shall be the age of that person at his last birthday preceding the first day of the month in which the Administrative Board (established for the purposes of the Industrial Injuries and Diseases (Old Cases) Act 1975 or any of the former Old Cases Acts) or an insurance officer, or an adjudication officer, as the case may be, first awarded disablement benefit in respect of the disease: and the extent of incapacity shall be that which is applicable either at the time or retrospectively for the period immediately following the date of the determination or the award of disablement benefit, as the case may be.

    (4)  In any case where, at the time of the first determination of a Pneumoconiosis Medical Board, (or Special Medical Board, as the case may be), or a Medical Appeal Tribunal that the disabled person was suffering from the disease, the aforesaid Board or Tribunal, as the case may be, diagnosed that pneumoconiosis was accompanied by tuberculosis, the provisions of this regulation shall apply subject to the provisions of regulation 6.

Payments to dependants of persons disabled by a disease
    4.—(1)  The amount of any payment made to a dependant of a person to whom disablement benefit in respect of a disease was payable immediately before he died, or would have been payable but for his disablement amounting to less than the appropriate percentage, being the dependant entitled to a payment under the Act, shall be determined by ascertaining the amount which would have been payable to the deceased in accordance with regulation 3 had he still been alive and had duly made a claim for payment under the Act, deducting from that amount the sum which would have been payable to the deceased if his age at his last birthday preceding his death were substituted for the age used in ascertaining the said amount in accordance with the said regulation 3.

    (2)  Where the Secretary of State is satisfied that the deceased died as a result of the disease, there shall be added to the amount calculated in accordance with paragraph (1) of this regulation a further amount determined in accordance with Table 2 of the Schedule and the age of the deceased for this purpose shall be his age at his last birthday preceding his death. In the case of a disease other than diffuse mesothelioma, the percentage disablement or extent of incapacity, as the case may be, shall be the same as that used in determining the amount payable under the provisions of regulation 3.

    (3)  For the purpose of determining whether a payment should be made under the provisions of paragraph (2) of this regulation, it shall be sufficient evidence that the deceased died as a result of the disease if death benefit is payable or was paid as a lump sum by reason of the deceased's death as a result of the disease.

    (4)  It shall not be open to the Secretary of State to be satisfied that the deceased died as a result of the disease if there is clear evidence that a claim for death benefit has been disallowed on the ground that the deceased did not die as a result of the disease.

    (5)  Where no claim for death benefit has been made, it shall not be open to the Secretary of State to be satisfied that the deceased died as a result of the disease if there is clear evidence available that in the opinion of two doctors of the pneumoconiosis medical panel or Medical Boarding Centre (Respiratory Diseases), as the case may be, the deceased did not die as a result of the disease.

    (6)  
 (a) A dependant of a person to whom disablement benefit in respect of a disease was not payable immediately before he died, being the dependant entitled to a payment under the Act, shall be paid an amount determined in accordance with Table 2 of the Schedule if:—
 (i) death benefit is payable to or in respect of the said dependant, or
 (ii) disablement benefit would have been payable to the deceased immediately before he died but for his not having claimed benefit, or but for his having died before he had suffered from the disease for the appropriate period.
 (b) The relevant percentage assessment or extent of incapacity, as the case may be, for the purposes of Parts A and B of the aforesaid Table, shall be that determined by a Pneumoconiosis Medical Board, (or Special Medical Board, as the case may be), or a Silicosis Medical Board in respect of the period immediately prior to the deceased's death or if no such determination was made the said relevant percentage assessment or extent of incapacity shall be taken as 10 per cent. or "partial" respectively: and the age of the deceased, for this purpose, shall be taken as his age at his last birthday preceding his death.

    (7)  As respects any claim made by the dependant of a deceased person where that person has died as a result of diffuse mesothelioma, the provisions of this regulation shall apply subject to the provisions of regulation 5.

Payment where death results from diffuse mesothelioma
    5.—(1)  In any case where the Secretary of State is satisfied, as respects a claim by a dependant of a deceased person who died on or after 22nd August 1966 (the said dependant being the dependant who is entitled to a payment under the Act), that the said deceased person died as a result of diffuse mesothelioma the amount of the payment to that dependant shall be:—
 (a) the amount payable in accordance with regulation 4 in respect of diffuse mesothelioma if—
 (i) disablement benefit was payable to the deceased immediately before he died solely in respect of diffuse mesothelioma, or
 (ii) death benefit is payable to or in respect of the said dependant where disablement benefit in respect of a disease was not payable to the deceased immediately before he died, or
 (iii) disablement benefit would have been payable to the deceased immediately before he died but for his not having claimed the benefit or but for his having died before he had suffered from the disease for the appropriate period;
 (b) if disablement benefit was payable to the deceased immediately before he died solely in respect of pneumoconiosis, either—
 (i) the total amount payable in accordance with regulation 4 in a case where the deceased's death resulted from pneumoconiosis or, if greater—
 (ii) the amount payable in accordance with regulation 4(6) in respect of the deceased's death as a result of diffuse mesothelioma;
 (c) if disablement benefit was payable to the deceased immediately before he died in respect of both pneumoconiosis and diffuse mesothelioma or would have been payable to him but for the circumstances specified in (a)(iii) above, either the amount payable in accordance with paragraph (a) of this regulation or that payable in accordance with paragraph (b)(i), whichever amount is the greater.

Provided that in any case the amount payable to a dependant under this regulation shall be at least £1,263 more than the amount which would have been payable to him if he had been entitled to a payment calculated in accordance with regulation 4(6).

    (2)  In the case of any amount payable in accordance with this regulation to the dependant of a deceased person the Secretary of State shall deduct from any such amount a sum equal to any payment made under the provisions of the Act to the said deceased person prior to death, save that any amount so payable after any such deduction shall not, in any event, be less than the minimum payment prescribed in regulation 8.

Payment where pneumoconiosis is accompanied by tuberculosis
    6.—(1)  In any case where, at the time of the first determination of a Pneumoconiosis Medical Board, (or Special Medical Board, as the case may be), or Medical Appeal Tribunal that the disabled person was suffering from the disease, the aforesaid Board or Tribunal, as the case may be, diagnosed that pneumoconiosis was accompanied by tuberculosis, the amount payable to any such disabled person under the provisions of the Act shall be determined by adding together—
 (a) the sum of £2,613, if the percentage assessment applicable for the period immediately following the date relevant for the purposes of regulation 3(2) was one hundred per cent. or if less than one hundred per cent. that percentage of £2,613, in respect of the year beginning on that date (that is to say the date relevant for the purpose of regulation 3(2)), and in respect of each successive year beginning on the anniversary of that date on the first day of which the said disabled person was, or appears to the Secretary of State to have been, suffering from pneumoconiosis accompanied by active tuberculosis, and
 (b) a lump sum determined in accordance with Part A of Table 1 of the Schedule, taking, for this purpose, the age of the disabled person as his age at his last birthday prior to the end of the last year to which paragraph (1)(a) of this regulation applies, and taking also for this purpose the percentage assessment as that applicable for the period immediately following the end of the period during which the said disabled person was suffering from pneumoconiosis accompanied by active tuberculosis.

    (2)  The amount payable to a dependant of any disabled person who, had he been alive, would have been entitled to a payment determined in accordance with paragraph (1) of this regulation, being the dependant entitled to a payment under the Act, shall be determined in accordance with regulation 4, save that the amount which would have been payable to the deceased in accordance with paragraph (1) of this regulation shall be substituted for the amount which would have been payable to him in accordance with regulation 3 with the percentage disablement taken for the purpose of determining the sum to be deducted under regulation 4(1) from the aforesaid amount being the percentage disablement used for the purpose of determining the lump sum under paragraph (1)(b) of this regulation.

    (3)  In any case to which the provisions of this regulation apply and where it appears to the Secretary of State that tuberculosis either remains active at the time a claim is made under the provisions of the Act, or remained active until the time when the disabled person died, the amount of the payment shall be determined as if at the time of its first determination that the disabled person was suffering from the disease the Pneumoconiosis Medical Board, (or Special Medical Board, as the case may be), or Medical Appeal Tribunal, as the case may be, had not diagnosed that pneumoconiosis was accompanied by tuberculosis.

    (4)  No payment made in accordance with this regulation shall exceed the amount which would have been payable if at the time of its first determination that the disabled person was suffering from the disease the Pneumoconiosis Medical Board, (or Special Medical Board, as the case may be), or Medical Appeal Tribunal, as the case may be, had not diagnosed that pneumoconiosis was accompanied by tuberculosis.

Power of Secretary of State to determine amount of payment
    7.    In the case of a claim by any person who appears to the Secretary of State to be entitled to a payment under the Act but in respect of whose claim the Secretary of State is unable to determine affirmatively or accurately, to his satisfaction, the amount which should properly be paid to that person in accordance with these Regulations (whether because the date relevant for the purposes of regulation 3 is unknown or uncertain or for some other reason), payment shall nevertheless be made to that person of whatever amount, in any particular case, appears to the Secretary of State to be just and equitable:

Provided that in the case of any such payment—
 (a) where the date relevant for the purposes of regulation 3 is unknown or uncertain, the date to be taken as the relevant date shall be the latest date which, on the evidence available, could have been the relevant date;
 (b) where the relevant percentage disablement is unknown or uncertain this shall be taken as the lowest percentage on the evidence available which could have been the relevant percentage disablement;
 (c) where the relevant extent of incapacity is unknown or uncertain this shall be taken to be "partial".

Minimum amount payable to dependant
    8.    In any case where entitlement to payment under the Act has been established by the dependant of any person who immediately before he died was disabled by a disease and the amount of any payment to the said dependant under the foregoing provisions of these Regulations is less than the sum of £1,263 the amount actually payable to that dependant shall, in no such case, be less than that sum.

Signed by order of the Secretary of State.

Patrick Nicholls

Parliamentary Under Secretary of State, Department of Employment

30th March 1988

[1] 1979 c. 41; sections 1 and 4 of the Act were amended by section 24 of the Social Security Act 1985 (c. 53) and section 2 was amended by section 39 of and Schedule 3 to the Social Security Act 1986 (c. 50). back

[2] S.I. 1985/2035. back

[3] 1975 c. 14; sections 57 and 77 were amended by section 39 of and Schedule 3 to the Social Security Act 1986 (c. 50). back

[4] S.I. 1985/1645. back

[5] 1975 c. 16. back

[6] 1951 c. 4, 1967 c. 34. back

[7] 1946 c. 62, 1965 c. 52. back

Explanatory Note