Statutory Instruments

1988 No. 668

SOCIAL SECURITY

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

Made

30th March 1988

Coming into force

11th April 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;

F1(g). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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(5);

(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.

Textual Amendments

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 F2... 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).

F3(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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.

[F4(5) Where—

(a)a payment is made to a person under section 46 of the Child Maintenance and Other Payments Act 2008 (the mesothelioma payment) in respect of diffuse mesothelioma,

(b)subsequently it is determined that the same person is entitled to a payment under section 1(1) of the Act in respect of the same diffuse mesothelioma,

the amount payable under paragraph (1) shall be reduced by the amount of the mesothelioma payment.]

Textual Amendments

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 F5... 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 [F6in cases where]:—

(i)death benefit is payable to or in respect of the said dependant [F7by reason of the deceased’s death as a result of the disease], 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 [F8for the purposes of Part A of Table 2] 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 F9... shall be taken as 10 per cent. F10... 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.

Textual Amendments

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

[F11(ii)where disablement benefit in respect of a disease was not payable to the deceased immediately before he died death benefit is payable to or in respect of the said dependant by reason of the deceased’s death as a result of the disease, 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 [F12£3,051] 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.

Textual Amendments

F12Sum in reg. 5(1) substituted (with application in accordance with reg. 1(2) of the amending S.I.) by The Pneumoconiosis etc. (Workers Compensation) (Payment of Claims) (Amendment) Regulations 2015 (S.I. 2015/503), regs. 1(1), 2(2)

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 [F13£6,375], 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 [F13£6,375], 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 F14... 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.

Textual Amendments

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;

F15(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

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 [F16£3,082] the amount actually payable to that dependant shall, in no such case, be less than that sum.

Textual Amendments

Signed by order of the Secretary of State.

Patrick Nicholls

Parliamentary Under Secretary of State,

Department of Employment

Regulations 3, 4 and 6

[F17SCHEDULE

Textual Amendments

F17Sch. substituted (1.4.2015) (with application in accordance with reg. 1(2) of the amending S.I.) by The Pneumoconiosis etc. (Workers Compensation) (Payment of Claims) (Amendment) Regulations 2015 (S.I. 2015/503), regs. 1(1), 2(5)

TABLE 1

1.  This table is for the determination of payments to disabled persons under regulation 3 or regulation 6 and for the determination of payments to dependants of deceased sufferers under regulation 4(1).

2.  The relevant period is the period specified in regulation 3(2) or, in the case of a disabled person to whom regulation 6 applies, the first period specified in regulation 6(1)(b).

3.—(1) The age of the disabled person is their age determined in accordance with regulation 3(2) or, in the case of a disabled person to whom regulation 6 applies, regulation 6(1)(b).

(2) In determining the amount payable to a dependant of a disabled person under regulation 4(1), the age to be taken for the purpose of calculating the sum to be deducted from the amount which would have been payable to the disabled person had they still been alive, is the age of the deceased on their last birthday before their death.

4.  The table prescribes payments to disabled persons to whom disablement benefits are payable under section 108 of the Social Security Contributions and Benefits Act 1992 or under any corresponding provision of the former Industrial Injuries Acts, or would be payable but for the disablement amounting to less than the appropriate percentage.

[F18Age of

disabled

person

Percentage assessment for the relevant period

10%

or under

£

11%

-20%

£

21%

-30%

£

31%

-40%

£

41%

-50%

£

51%

-60%

£

61%

-70%

£

71%

-80%

£

81%

-90%

£

91%

-100%

£

37 and under35,66663,69574,73276,85778,97980,67782,37684,07585,77287,473
3834,64861,14472,48175,07577,27878,97980,67782,37684,07585,772
3933,62858,59670,23173,28975,58477,05578,97980,67782,37684,075
4032,61256,04667,98171,50373,87975,58277,27878,97980,67782,378
4131,59253,50265,73369,71672,18873,87975,58277,27878,97980,677
4230,56650,95763,48067,94370,48772,18873,87975,58277,27878,979
4329,04547,98061,23066,58169,30071,33973,03474,73276,43278,132
4427,51345,00958,97665,22468,11070,48772,18873,87975,58277,278
4525,98842,03756,72763,86266,92369,63471,33973,03474,73276,432
4624,45839,06754,47962,50665,73368,79170,48772,18873,87975,582
4722,93236,09252,22661,14464,54567,94369,63471,33973,03474,732
4821,61434,90450,44758,42962,50665,55867,26168,95970,65272,358
4920,29733,71548,66255,71060,46963,18264,88266,58168,28169,981
5018,98132,52746,91252,99458,42960,80462,50664,20265,89867,599
5117,66431,33745,09250,27456,38758,42960,14261,82163,52465,224
5216,34830,14743,31147,55654,34956,04657,75159,44761,14462,840
5315,11528,02840,59145,18052,31254,34956,04657,75159,44761,144
5413,88425,90437,87442,80750,27452,65554,34956,04657,75159,447
5512,65623,78135,16240,42248,23450,95752,65554,34956,04657,751
5611,42121,65532,44138,04746,19949,25450,95752,65554,34956,046
5710,19119,53029,72535,66644,16847,55749,25450,95752,65554,349
589,38317,75026,54332,01239,74442,88844,71346,49948,23549,934
598,57615,96423,35328,36635,32738,21440,16842,03743,82045,516
607,77414,18020,16924,71230,91633,54635,62037,58039,40741,106
616,96212,39816,98721,06026,49628,87431,08033,12134,98936,687
626,15610,61613,80117,40822,08124,20326,54328,66430,56632,272
635,7329,59612,39815,56519,64221,73723,94925,98827,85329,552
645,3178,57610,99713,71417,19519,27921,36023,31325,13426,833
654,8847,5589,59611,87114,75816,81518,76820,63822,42224,120
664,4616,5418,19410,01912,31614,35016,17817,95919,70321,401
674,0365,5206,7918,1749,87411,89313,59015,28416,98718,684
683,9255,3456,5607,8379,53511,42113,05714,82016,45118,131
693,8225,1816,3307,4969,19710,95612,52914,35015,92617,576
703,7155,0146,0927,1568,85510,48511,99813,88415,39117,029
713,6114,8385,8606,8138,51310,01911,46813,41814,86416,477
723,5044,6715,6266,4778,1749,55710,93212,95014,32815,926
733,4164,5885,5436,3498,0459,34310,72212,61313,90815,456
743,3344,5015,4566,2227,9229,12710,51212,27513,48214,978
753,2514,4205,3736,0927,7898,91710,29611,93213,05714,519
763,1634,3285,2855,9667,6638,70810,08711,59312,62814,058
77 and over3,0824,2455,2045,8377,5378,4919,87411,25812,20913,590]

Textual Amendments

TABLE 2

1.  This table is for the determination of payments to dependants of deceased sufferers under regulation 4(2) or (6).

2.  The relevant period is the period specified in regulation 3(2) or, in the case of a disabled person to whom regulation 6 applies, the first period specified in regulation 6(1)(b).

3.—(1) Part A of the table prescribes payments to dependants of disabled persons who died as a result of a disease other than diffuse mesothelioma.

(2) Part B of the table prescribes payments to dependants of disabled persons who died as a result of diffuse mesothelioma.

4.  Part A of the table prescribes payments to—

(a)dependants to whom industrial death benefit under section 108 of the Social Security Contributions and Benefits Act 1992 is payable;

(b)dependants of a person to whom disablement benefit under that section or under any corresponding provision of the former Industrial Injuries Acts was payable immediately before that person died; and

(c)dependants of a person to whom disablement benefit would have been payable immediately before that person died but for the occurrence of one of the circumstances listed in regulation 5(1)(a)(iii), or but for the person’s disablement amounting to less than the appropriate percentage.

[F19Part A
Age of disabled person on their last birthday before their death

Percentage assessment for the relevant period

10%

or under £

11%-20%

£

21%-30%

£

31%-49%

£

50% or over £
37 and under22,59138,51743,18644,46345,522
3822,08237,07241,91143,18644,543
3921,57435,62840,63741,91043,566
4021,05934,18239,36340,63742,590
4120,55132,74038,08939,36341,614
4220,04631,30136,81538,08940,637
4319,12629,43035,66736,94239,703
4418,21627,55634,51835,79738,760
4517,30425,68933,37434,64937,832
4616,38923,81932,12933,50236,898
4715,47721,95131,08632,36035,966
4814,78021,44230,23831,46734,819
4914,07420,93229,38430,57533,670
5013,37520,42128,53829,67832,526
5112,67719,91427,68928,79231,383
5211,97619,40626,83927,89930,238
5311,65418,21625,22726,66729,298
5411,33717,02623,60925,43628,367
5511,02015,83721,99624,20627,433
5610,70214,64820,38222,97626,492
5710,19113,46318,76821,74225,561
589,38312,60916,92519,58022,976
598,57611,75815,07817,41020,382
607,77410,91613,22615,24517,794
616,96210,06311,38313,08015,202
626,1569,2189,53110,91612,609
635,7329,1529,40910,50711,869
645,3178,5769,27610,10611,134
654,8847,5589,1529,70110,381
664,4616,5418,1949,2999,640
67 and over3,0824,2455,2045,8377,537]

[F19Part B

Age of disabled person on their last birthday before their death

Payment £
37 and under45,522
3844,543
3943,566
4042,590
4141,614
4240,637
4339,703
4438,760
4537,832
4636,898
4735,966
4834,819
4933,670
5032,526
5131,383
5230,238
5329,298
5428,367
5527,433
5626,492
5725,561
5822,976
5920,382
6017,794
6115,202
6212,609
6311,869
6411,134
6510,381
669,640
67 and over7,537]]

Textual Amendments

Explanatory Note

(This note is not part of the Regulations)

These Regulations, which come into force on 11th April 1988, prescribe the amount of payments to be made under the Pneumoconiosis etc. (Workers' Compensation) Act 1979 (“the Act”), as amended by the Social Security Act 1985 and the Social Security Act 1986, to persons disabled by a disease to which the Act applies (namely pneumoconiosis, bysinnosis, diffuse mesothelioma, primary carcinoma of the lung (where accompanied by asbestosis or bilateral diffuse pleural thickening) and bilateral diffuse pleural thickening) or to dependants of persons who immediately before they died were disabled by such a disease. All such persons should satisfy the conditions of entitlement prescribed in section 2 of the Act.

The Regulations re-enact the Pneumoconiosis etc. (Workers' Compensation) (Payment of Claims) Regulations 1985 (“the 1985 Regulations”) which are revoked. In addition to minor and drafting amendments they make the following changes of substance:—

(a)The amount of payments laid down by the 1985 Regulations is increased by 8.5% rounded up or down to the nearest £1 as appropriate.

(b)Regulations 4 and 5 are amended to take account of the changes made to the conditions of entitlement in section 2 of the 1979 Act by the Social Security Act 1986.

(c)Amendments are made consequential on the changes of title of the Pneumoconiosis Medical Board, the Pneumoconiosis Medical Panel and Insurance Officer.

(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).

(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).