Covid-19 UK: High Court rules government policies unlawful
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The recent publication of minutes from the Industrial Injuries Advisory Council indicate that prescription of Covid-19 is moving closer, albeit on a limited basis. It should be noted that any final decision on prescription lies with the Government in response to the advice of the IIAC.
The launch of the UK Covid-19 Inquiry on 21 July 2022 has brought into renewed focus the question of how well prepared the UK was for the pandemic, but also those issues of how to adequately protect those still suffering the consequences of Covid-19.
The Inquiry will consider ‘system’ and ‘impact’ on variety of modules including the resilience and preparedness of the UK, the impact of Covid-19 on public services, other sectors and the healthcare system. However, in the short to medium term, one issue which has been raised by various stakeholders is the prescription of Covid-19 as an industrial disease to allow for the payment of benefits to those affected by Covid-19 on an ongoing basis.
To prescribe or not?
The IIAC is an independent body responsible for offering advice to the Department of Work and Pensions on the prescription of those diseases and occupation for which Industrial Injuries Disablement Benefit (IIDB) may be paid. Since the start of the pandemic, the prescription of Covid-19 has been a question raised by various bodies including trade unions.
Perceived delays in the UK position are often due to the steps taken by other countries. Several European nations such as Belgium, Denmark, France, Germany and Spain have recognised as Covid-19 as an industrial disease within their respective systems.
The IIAC has been considering death data up to the end of 2020 published by the Official of National Statistics (ONS) in relation to Covid-19. Their position paper published in March 2021 indicated that a limited evidence base prevented the justification for prescription at this stage.
However, the IIAC did acknowledge that “the current evidence of a doubling of risk in several occupations indicates a pathway to potential prescription and the Council expects that future data will enable a better understanding of the effect that Post-Covid-19 syndrome may have on loss of function.”
The recent publication of minutes from the IIAC meeting in April 2022 indicates that the IIAC is now satisfied that prescription will now proceed in relation to certain professions. The minutes state that an extensive draft of a command paper, which recommends the changes in legislation required to the Secretary of State has been prepared and is progressing.
It appears that the prescription will cover health & social care occupations but will not include other occupations, for example, transport. The IIAC minutes, however, does refer to the consideration of analysis studies of death data in relation to certain occupational sectors. This data may prompt subsequent recommendations from the IIAC.
The issue of Long Covid appears to be form a considerable part of the command paper, with it being unlikely that prescription will cover Long Covid generally given the concerns about definitions and data sufficiency. However, the minutes suggest that PICS (Post-Intensive Care Syndrome) may be covered by the prescription as will pulmonary embolism, stroke and myocardial infarction within defined periods following infection.
What happens next?
To take the prescription forward, the IIAC will be expected to provide the Secretary of State with the command paper. The Secretary of State will then act on the command paper. The minutes of the meeting referred to advanced drafting of the necessary command paper, but to date, this has not been published.
Given the current Parliamentary recess, and ongoing political movement, it is possible that publication has been delayed, and therefore legislative movement may not occur for several months. However, those representing claimants who wish to pursue claims relating to exposure to Covid-19 will be attentive to the outcome. Any recommendations from the IIAC would strengthen the case of workers seeking compensation for physical conditions caused by the alleged contraction of Covid-19 at work.