A tweak, Mr Hutton, to make good your intentions

In March, Work and Pensions Secretary John Hutton announced proposals to provide fairer and faster compensation to all people diagnosed with the asbestos cancer mesothelioma. He was acting to address a long-standing injustice in the benefits system for industrial injuries for those exposed to asbestos outside the workplace.

By discarding the occupational link so that a lump-sum state benefit can be paid to everyone who develops mesothelioma, the Child Maintenance and Other Payments (CMOP) Bill is a bold and very welcome vehicle to achieve the minister’s aim.

The origins of the Bill lie in both John Hutton’s announcement — timed to coincide with a mesothelioma summit in London at which he pledged legislation that would mean that ‘once diagnosed, every sufferer should receive a substantial payment within six weeks of making a claim’ — and last year’s DWP consultation paper Improving Mesothelioma Claims Handling — a Long Term Solution.

That DWP consultation looked at two aspects of how compensation is paid to mesothelioma sufferers and their families: the benefits regime in the form of Industrial Injuries Disablement Benefit and the Pneumoconiosis Workers Compensation Act (PWCA) 1979, and how compensation is delivered through the courts service.

In its response to the consultation, Thompsons Solicitors pointed out that whether a claimant is able to recover compensation is subject to vagaries such as whether the victim was exposed to asbestos during the course of their employment or whether their exposure was, say, from exposure to a relation’s contaminated work clothes (para-occupational exposure).

The roots of the state benefits system in industrial diseases (such as pneumoconiosis caused by coal dust) means that it excludes anyone who develops mesothelioma through para-occupational exposure — around 100 cases a year.

So a wife or child exposed to asbestos from the contaminated clothing of a worker, or someone subject to environmental exposure arising from, for example, living close to an asbestos factory, is not entitled to DWP benefits or a payment under the PWCA. Neither can the self-employed claim.

The outcome of a civil claim for damages also depends on vagaries: whether the company responsible for the asbestos exposure still exists, whether the company has assets to meet the claim or whether the insurers can be traced. Thompsons’ estimate is that between 10 and 20 per cent of mesothelioma claims fail because the company no longer exists and/or insurers cannot be traced.

Part four of the CMOP Bill provides that anyone paying compensation to a claimant should (as currently) deduct from that compensation any lump sum benefit the claimant had received from the state.

However, crucially, by providing that the person paying the compensation repays the lump sum to the government it creates both an income stream for the state to fund the extended benefit announced in March (referred to above) and corrects the previous injustice of compensators deducting benefit lump sums from a claimant’s compensation, but then keeping it for themselves.

The Bill’s good intentions may, however, be undone by paragraph 49 (3) (b). This allows the person paying the compensation to reduce its payment of general damages (which are paid for pain, suffering and loss of amenity) by the amount of the lump sum payment. Whereas in other types of personal injury claims, general damages are ring-fenced and cannot be reduced, the effect of paragraph 49 (3) (b) will be to reduce a claimant’s damages, and in some cases they may even be reduced to zero.

Ian McFall is head of asbestos policy at Thompsons Solicitors.