June 25, 2019

The Diffuse Mesothelioma Payment Scheme – fit for purpose?

The Diffuse Mesothelioma Payment Scheme (DMPS) was launched on 6 April 2014, established under the Mesothelioma Act 2014. At the time of introduction, the scheme was welcomed as filled a loophole which had existed for some time which meant that mesothelioma sufferers, who were unable to find the employer responsible for their contact with asbestos dust, or their insurers, could not recover any compensation for their disease.

However, four years on it must now be questioned whether the DMPS is sufficient or whether more can and should be done to ensure that those diagnosed with mesothelioma and other asbestos related diseases who, through no fault of their own, cannot claim the compensation which they undoubtedly deserve.

Who is eligible for a DMPS payment?

To be eligible a person must have been diagnosed with mesothelioma after 25 July 2012. They must have been exposed to asbestos in the course of their employment in the UK and the disease must have been caused by exposure to asbestos during work. For those who have died from mesothelioma, family members who were financially dependent on the deceased can submit and application to the scheme. To succeed, several pieces of evidence are required including evidence of employment, a witness statement detailing how the person was exposed to asbestos during the course of their work, there must be proof of an unsuccessful attempt to trace a live company and it’s insurers and further, the application must be made within three years of the date of the sufferer’s diagnosis.

The scheme was originally administered by Gallagher Bassett although as of 1 April 2018 the administrators are now TopMark Claims Management Limited. The scheme runs on a tariff system based on the age the mesothelioma sufferer was diagnosed. Two tariff systems now operate. The first relates to sufferers who are diagnosed with mesothelioma from 25 July 2012 to 9 February 2015. The scheme payment will be between £216,896 for a person aged 40 or younger to £69,649 for a person aged 90 or over.

On 10 February 2015 the tariff system changed and those diagnosed with mesothelioma on or after that date will now be eligible for a scheme payment of between £271,124 for those aged 40 and under to £87,061 for those aged 90 and over.

Does the DMPS fall short?

Whilst the introduction of the DMPS has certainly improved the situation for mesothelioma sufferers, my view is that it still falls somewhere short of its potential. There is certainly room for improvement and extensions to the scheme. Whilst such changes would inevitably be more costly, surely the costs could be covered by the insurance industry through an increased levy. I see the following as the main issues with the DMPS in its current form:

1 - Disease coverage

The DMPS only covers mesothelioma. This means if other asbestos disease sufferers were to find themselves in the same situation, i.e. that they have been diagnosed with an illness and know the name of the company where they were exposed to asbestos, but that company has ceased trading and it’s insurers cannot be traced, those sufferers cannot claim any compensation. In particular with lung cancer, I think the situation is far from sufficient. Why should a person who has developed asbestos related lung cancer which is terminal, be at more of a disadvantage in terms of the compensation they are eligible for, than someone who has developed mesothelioma?

2 - Exposure to asbestos not during the course of employment

I consider that this is one of the main areas where the scheme fails. It will only compensate mesothelioma sufferers who have been exposed to asbestos in the course of employment within the UK. So what then about those who develop mesothelioma due to other sources of exposure?  Those who have been exposed on a secondary basis for example wives who washed their husbands’ work clothes, environmental exposures and those who don’t know where they were exposed to asbestos. Those mesothelioma sufferers are only entitled to a lump sum payment under the Diffuse Mesothelioma Scheme (DMS) 2008 and the awards are significantly less  - ranging from payments of £90,097 for those aged 37 and under to £13,998 for those aged 77 and over.

I have recently advised a lady who knew where she was exposed to asbestos. Her father worked for British Uralite - an asbestos manufacturer in Higham in Kent. He came home every day in his dusty work clothes. As a child she remembers greeting him with a hug when he came home from work and sitting on his lap whilst he was still wearing his work clothes. She developed mesothelioma at the age of 68 and was entitled to a payment under the DMS 2008 of £18,675. However the company went out of business in the 1980’s and there are no insurers to pursue a civil claim against. If she had been exposed to asbestos during the course of her own employment instead, she would have been entitled to a payment under the DMPS scheme of £168,048 – a difference of £149,373.

Those who have been diagnosed with asbestos related lung cancer or benign diseases caused by exposure to asbestos which was not through their own work are entitled to even less. They cannot even claim a lump sum payment under the DMS 2008 as the scheme only covers mesothelioma. Therefore, they are left without being able to claim any benefits or compensation what so ever.

3 - Rates

Whilst the payments under the DMPS are significant, they do not take into account personal circumstances. This means that there will inevitably be ‘winners and losers’ – those who could have recovered substantially more compensation if their former employers/their insurers had been traced and they had been able to pursue a civil claim and those who would have recovered less if they had been able to make a civil claim. I can see why the scheme operates on this basis. It would be more complex, time consuming and costly to assess each claim on an individual basis. However, it must now be questioned whether advances in medicine and the availability of non NHS treatments means that there is a two tier system.

Immunotherapy and other drugs are showing great promise for those with mesothelioma by extending life expectancy. Many such drugs however are not yet approved by NICE and are not available on the NHS. Those who are able to pursue a civil claim for compensation and resolve liability, can seek the costs associated with such treatments through their claim, from their opponents. An agreement can be put into place to ensure that if the treatment is ever recommended by the treating clinician, the opponent will pay the costs of the treatment. Each cycle of immunotherapy is very costly – around £8,100. Two years of the treatment costs £280,000.

Those mesothelioma sufferers who are unable to trace their former employers/their insurers, will be unable to undertake such treatment if it is recommended unless they have other financial means of doing so or are eligible for a clinical trial. The payments made under the DMPS are not sufficient to fund such treatment. The result is essentially a two tier system – a significant difference between the potential outcomes for those who can pursue a civil claim and those who cannot.

4 - Time limits

The time limit for applying to the DMPS scheme is three years from the date of the diagnosis. This is different to civil law where the time limit is three years from the date of knowledge. Further, in civil claims, if a mesothelioma sufferer were to pass away within the three years from their date of knowledge, their Estate has a further three years from their date of death in which to pursue the claim. Under the DMPS scheme the time limit does not reset. This potentially puts dependents at a disadvantage and it is not clear why.

5 - Non-dependents

The DMPS will only make payments to mesothelioma sufferers and those who are financially dependent on them. There is no recourse for the Estate of the person who has died from mesothelioma - children and other family members who are bereaved but who are not financially dependent on the sufferer. They cannot claim a payment under the scheme. This surely can’t be right.

6 - Legal costs

The DMPS website suggests that sufferers can apply to the scheme for a payment themselves and that they do not need the assistance of a solicitor. However, if legal advice is obtained, the scheme will pay the sum of £7,000 towards legal costs.

Having dealt with several applications to the DMPS myself, I do wonder if it is realistic to assume sufferers can deal with applications themselves. As well as a lengthy application form, witness evidence and proof that insurers have not bee traced must be submitted. Can mesothelioma sufferers who may be extremely poorly, really be expected to deal with this administration and evidence gathering?

Some mesothelioma sufferers may not know the circumstances in which they were exposed to asbestos initially. However, with some investigation, this may become apparent and those sufferers may then be eligible for a DMPS payment if the relevant company has ceased trading and its insurers can’t be traced. Would a sufferer really be able to undertake these investigations and obtain the evidence needed to secure a payment?

I have recently acted for a gentleman from County Durham who was diagnosed with mesothelioma in his 60’s. He had no idea how he had been exposed to asbestos. It was only through me discussing his employment history in detail and obtaining his HMRC schedule of employment that it became apparent that he had worked as a labourer in a saw mill in the 1960’s. Whilst he had not used any asbestos products, I conducted a witness appeal and obtained evidence from others who had worked in the same building who confirmed that they had made fire doors using asbestos insulation board. My client swept up the dust and was therefore exposed to asbestos. If he had not sought legal advice, it is very unlikely that he would have had sufficient evidence to have made a successful application to the scheme.

My costs in that case exceeded the £7,000 paid by DMPS and I wrote off the excess. Would all firms accept such a case and write off excess costs? Some firms may refuse to act if there is no clear evidence of exposure. In this case, the gentleman received around £170,000 from the scheme. He had no financial dependents so pursuing the application in his lifetime was important. He was a single man and needed support and care during the course of his illness which the payment from the scheme enabled him to fund. The application was therefore very important to him.

Again, I can see why legal costs are limited in an attempt to make things more straightforward however I do wonder whether this causes some unfairness – putting those who cannot trace the company that exposed them or their insurers at a disadvantage.

Is it time for change?

The DMPS is working in its current form and has significantly improved the situation for many mesothelioma sufferers. However, my view is that it is now time to consider extending the scheme to address some of the issues I have highlighted in this piece. Compensating those diagnosed with mesothelioma and other asbestos diseases should be a priority for the insurance industry. They are victims of successive governments’ decisions to allow asbestos to be imported into the UK for so very long, despite the dangers associated with it being known for decades. The insurance industry accepted premiums and can undoubtedly afford to pay more into the scheme to ensure that those diagnosed with these awful, life reducing and debilitating conditions, receive compensation.

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