The Diffuse Mesothelioma Payment Scheme is a Scheme “designed to compensate people with Diffuse Mesothelioma who, either negligently or in breach of statutory duty, were exposed to asbestos by their employers, and who are unable to bring a claim for compensation against that employer or that employer’s Employers’ Liability insurer”
Put simply, if certain people who have developed mesothelioma would have won their civil compensation claim but have no one to pursue, they, or their eligible dependants, can make an application to the Scheme for a payment instead.
Set out below are some key problems the Scheme has when compared to a civil compensation claim against a former employer or their insurers.
Benefits of the Diffuse Mesothelioma Payment Scheme
The main benefit of the Scheme is that a mesothelioma sufferer, or their eligible dependants, will receive some payment if they would have been successful in their compensation claim. The Scheme at least recognises is not the fault of the innocent sufferer that their former employer is no longer trading and that the relevant insurers cannot be identified.
Another benefit is that once an application has been made to the Scheme, it is dealt with quicker than if an Employers’ Liability insurer were involved.
If the mesothelioma sufferer is unable to make a Scheme application before they pass away, the right to do so passes to eligible dependants.
If successful, a pre-determined Scheme payment is made based on the sufferer’s age at the date of the mesothelioma diagnosis. The payments, before any deductions, range from £87,061 for someone aged 90 or over to £271,120 for someone aged 40 or under (as at June 2020).
Pitfalls of the Diffuse Mesothelioma Payment Scheme
Although the Scheme is useful as a last resort for some people, unfortunately it has huge gaps which mean too many mesothelioma sufferers lose out. I have acted for clients who fall within those gaps and have seen the unfairness of the Scheme first hand.
The DMPS will only allow applications to be made where the mesothelioma has been caused by negligent exposure to asbestos in the person’s own work. This means those sufferers whose mesothelioma has developed as a result of other exposure and who cannot pursue a civil compensation claim are left with no compensation at all. For example, I regularly act for women who have developed mesothelioma as a result of washing their husband’s contaminated work clothing. If the husband’s former employers or the relevant insurers cannot be pursued, the wife will not receive any compensation despite having developed mesothelioma through no fault of her own and through the negligence of her husband’s former employers. I cannot think of any vaguely justified reason to explain why these women have been forgotten about.
Even if a payment is made to a former employee who has successfully met the criteria of the Scheme, the unfairness continues…..
The Scheme payments do not take into account the significant costs of private medical treatment, such as immunotherapy, that the mesothelioma sufferer may be recommended by the treating doctors to undergo. Such treatment isn’t available on the NHS and can run into tens or even hundreds of thousands of pounds when paid for privately. No allowance is made for such treatment within the Scheme’s payments. However, if a civil compensation claim is successfully pursued, a Court Order would be obtained forcing the insurers to meet the cost of such treatment in full, in addition to paying other compensation.
By way of example, I could be acting for two tradesmen (typically plumbers, carpenters and electricians) who were both negligently exposed to white, blue or brown asbestos at work and who have both developed mesothelioma as a result of that work. One client can pursue a civil compensation claim against his former employers’ insurers. The other cannot, as those insurers are unknown and his former employers are no longer trading. Both clients are, according to their treating doctors, suitable to undergo immunotherapy treatment which could make a real difference to their quality of life and extend their life expectancy. The client who can pursue a civil compensation claim will have all those medical costs met by the insurers, in addition to receiving other compensation. The client who has to make an application to the Scheme will not receive anything specifically for those medical costs. Why should mesothelioma sufferers be treated differently when they have no control over whether their former employers had insurance or if that insurance can be identified? Immunotherapy is something that has been proven to help some mesothelioma sufferers and so everyone should be given the same opportunity to have the treatment.
Another unfairness of the Scheme is that whatever DWP benefits have been paid to the sufferer at the date a Scheme payment is made have to all be deducted in full and repaid to the DWP. In a civil compensation claim, only certain benefits can be deducted from the compensation and it is often the case that not all the benefits have to be deducted from civil compensation. Again, this is an example of how someone claiming under the Scheme will often lose out financially.
There is also an imbalance in relation to the issue of dependants when comparing the Scheme and a civil compensation claim. If someone passes away from mesothelioma before they are able to make an application to the Scheme, their dependants (eg a wife) can make an application instead. However, if the mesothelioma sufferer had no dependants and had not made an application during his lifetime, then the right to make a Scheme application is lost on death. However, in a civil compensation claim, a significant amount of compensation can still be recovered for the Estate of that person after their death, even if they had no dependants.
The Diffuse Mesothelioma Payment Scheme is useful for some mesothelioma sufferers but the Scheme needs to be urgently reviewed and extended to ensure all mesothelioma sufferers are treated equally and fairly.
Our asbestos and mesothelioma solicitors have been working with clients to seek compensation for asbestos exposure and mesothelioma for many years. They understand what is required and have specialist skills and legal knowledge relating to asbestos and mesothelioma. We can provide a free consultation and advice on your circumstances. Contact the team today on 0808 252 5231 or request a call back online.
 See website of The Diffuse Mesothelioma Payment Scheme