12 July 2022: Francis - B

On Recommendation 13, this is about interest to be paid on any calculation of compensation amounts, specifically those elements that would have been affected by the time passage and so will need to be uplifted by a percentage common for the whole country. It will be for the legal panel to determine the detail of this.

On Recommendation 14, the interim payments as described in the Report included a reference to who should and who should not be eligible for an interim amount. He saw that deceased estate amounts would require work to calculate so he has not included them for the sake of making it as easy for the Government to do as possible. He noted how the affected are generally not the ones who are dying or becoming so frail due to the actual infection, so he has not included them. Counsel sought to explore certain hard cases, such as parents of a deceased child, where the parents are themselves elderly and might not be around long enough to see the payments being calculated and issued. The witness agreed that you could make a case for everyone being justified in having a claim on an interim payment. He used the phrase, “you have to draw the line somewhere” again. Having more people eligible might also dilute what was paid out and so defeat the purpose for making these payments. The figure of £100,000 was not based on any detailed calculation but was considered to be a reasonable amount to give sufficient autonomy and significant enough to make a difference. The figure was not seen as higher than anyone would get from the framework’s calculations.

On Recommendation 15, it was firstly a restatement of the need to not take account of any past ex gratia payments as if they were a payment on account of compensation. It also includes the significance of giving the scheme some kind of statutory backing. The matter of financial support scheme payments continuing into the future had already been covered. There was no time spent on the disregard of compensation payments for the purposes of income tax. It seems to be a “no-brainer” or a given; whatever the correct term might be. In relation to benefits, the Report recognised the current disregard arrangements, but the witness did say there would be other benefits that would have to be taking into account, basing his view on how things operate in court-based compensation claims when the DWP get involved in issuing certificates and sometimes claiming back money. So, the current exceptions should remain, but others might not be seen as reasonable. This writer can foresee some significant difficulties with this approach, particularly given that the framework has been seen by some as favouring the infected and disfavouring the affected. It would likely be the affected who would be further affected by this clawback scenario.

On Recommendation 17, this covered the need to provide monies, not directly to eligible people, but to allow for specific specialist provision such as psycho-social support and independent financial advice. The need for legal support to be available to potential applicants could operate either by internally employed lawyers (who would have to be distinct from any other legal staff the new scheme would have), or from external legal firms, the costs of which would be covered by the scheme. It was recognised how there are various recognised legal representatives which have quite long associations with the issue of contaminated blood, and it would be important to access this knowledge.

On Recommendation 18, this emphasised the need for a UK scheme in terms of everyone getting the same amounts for the same presenting circumstances. However, the value placed on local schemes, particularly in Scotland, was seen as important to maintain as a localism issue, for example to administer the scheme to those who live within that national jurisdiction. The concept of an Arms-Length Body (ALB) should be as independent from Government as possible, according to the witness. It may require legislation to set it up. It would not have the power to set or vary overall compensation levels, but to administer the payments based on the detailed considerations for the panels. Counsel reviewed some of the problems with non-Government bodies such as The Macfarlane Trust, including the issue of the Government having control over who is appointed to the Board of that body. The concept of involving existing representative groups was also posed. The witness did not want to go down to too much detail but did see the need for involvement of the representative groups in the design and operations of the body running the scheme. Related to appeals, it would seem reasonable for these to be in-person, but Sir Robert hoped it might not need to get to that level through his concept of a Review capacity.

On Recommendation 19, the periodic reporting on the scheme, specifically to Parliament, would be needed since it was expected to be spending significant amounts public funds. It could also allow for the highlighting of concerns and considering how improvements might be made.

Counsel then moved to a few more general matters, the first of which was the interplay between tariffs and an individualised assessment process. The witness thought that there needed to be a determination and discussion about why someone might not want to go along with a tariff route so that it did not become the norm. In cases where there was a requirement for expert reports to be obtained, rather than the scheme being expected to pay for these, it my be better to have experts retained to support any need for an expert view.

The matter of the new compensation ALB having access to the files held by previous or current schemes was raised. Concerns had been raised about the entirety of a person’s full medical history, or significant parts of these, going to yet another body. The witness saw the issue of data protection being significant, but also the need for a two-way information process to get to the best outcome for the eligible person.

Reference was made to the suggestion of a “card scheme” (like the one operated in Ireland) which would give people a passport to specific services due to their needs, and to minimise the need to constantly repeat their distressing history each time a provision is accessed. Sir Robert highlighted the possibility of the scheme having the capacity to signpost people to a range of services beyond any directly related to actual compensation payments.

Counsel then wanted to cover the cases of specific situations of affected people. One example was the possibility of a person being placed into care as a result of the death of one or both parents. The witness suggested how he saw these specific cases being addresses by reference to the various Heads of Awards.

The matter of a different legal framework in Scotland would have to be accounted for. He said a fair solution would need to be found which would include Scottish (and the other nations) legal representation. He did not want to see the prospect of reaching a “lowest common denominator”, but also did not think it would happen that the “highest possible denominator” was accepted either. It had been pointed out that under Scottish Law, there are broader categories of who is eligible for compensation than those which apply in the rest of the UK. Sir Robert recognised how this would need to be accounted for in the establishment arrangements of the new scheme.

Finally, beyond interim payments, the witness was asked what else he thought might be actioned before the end of the Inquiry. The witness could see the value of setting up a shadow group to prepare to make the likely arrangements prior to the end of the Inquiry, and the initial work of the two panels could be started to set up the detail of the Heads of Award, including the sub-categories which could be taken forward by the medical panel, and the setting of amounts related to the to the tariffs by the legal panel. However, the witness doubted the Government would allow for the expense of this, even if it would help to hasten the eventual payments process after the Inquiry is concluded. He is probably right, but shouldn’t be.