European Hazards

1. European Hazards ASBESTOS-RELATED DISEASE Problems facing asbestos sufferers, carers & advisors Tommy Gorman West Dunbartonshire Council Welfare Rights Representation Unit

2. Mesothelioma Deaths 1968-2050 • Leading epidemiologists forecast that male mesothelioma deaths in Western Europe will increase from 5,000 per year in 1998 to around 9,000 per year by 2018 • Those most in danger are men born around 1945-50 about one in 150 men born in this period will die from mesothelioma • The risk to men born since 1955 is not yet clear • Plumbers, carpenters, electricians involved in renovation, asbestos removal workers and demolition workers may still be experiencing exposure to asbestos dust • Between 1968 and 2050 there will be approximately 90,000 deaths from mesothelioma in Great Britain • Sixty-five thousand of which will occur after 2001

3. Asbestos in the built environment • Between 1900 and 1985 around 6 million tonnes of asbestos were imported into the UK • An estimated 850,000 of UK commercial buildings (83%) still contain asbestos within their structures • Asbestos can be found in 400,000 (73%) of flats built between 1945 and 1985 and in most houses built before 1985 • Of 13,000 new schools built between 1945 and 1974 more than 8,000 contain asbestos within their structures • Control of Asbestos at Work Regulations 2002 introduces a stricter regime

4. Asbestos Deaths 1997-2001Scottish Local Authorities 1. West Dunbartonshire 108 deaths 2. Renfrewshire 144 deaths 3. Inverclyde 60 deaths 4. Argyll and Bute 60 deaths 5. Moray 48 deaths 6. East Lothian 60 deaths 7. South Lanarkshire 156 deaths 8. Dundee City 72 deaths 9. North Lanarkshire 144 deaths 10. North Ayrshire 60 deaths 11. Glasgow City 252 deaths 12. Highland 84 deaths 13. East Ayrshire 48 deaths 14. Fife 132 deaths 15. South Ayrshire 36 deaths

5. WORK HISTORY • Work history is an important factor to be considered by advisors • Many men and women who were exposed to asbestos at work also worked in extremely noisy conditions which required them to use inferior vibrating hand tools • Some were exposed to sensitising agents, exhaust fumes from machinery and a whole range of dangerous chemicals which can exacerbate occupational asthma • They may be suffering the effects of an industrial accident and not made a claim because they did not know they could • It is always advisable to examine all possible claims for Industrial Injuries Disablement Benefit (IIDB)

6. 3 Routes to Compensation • Department of Work and Pensions: State benefits are paid in respect of a prescribed industrial disease through the Industrial Injuries Scheme • A range of other benefits and allowances are available to cover things like care needs, mobility and incapacity for work • State ‘no fault’ Compensation Scheme: This is a single payment scheme which makes payments under the Workmen’s Compensation Act 1979 if no relevant employer is still in existence. These payments are only made to claimants who receive Industrial Injuries Disablement Benefit • Civil Claims for Damages: are ordinary ‘common law’ claims brought in respect of all prescribed asbestos–related diseases plus pleural plaques

7. PRESCRIBED ASBESTOS-RELATED DISEASES • PD D1: Pneumoconiosis • PD D3: Diffuse Mesothelioma • PD D9: Bilateral diffuse pleural thickening • PD D8: Primary carcinoma of the lung (only if accompanied by asbestosis or pleural thickening) • Claims for Pneumoconiosis, diffuse mesothelioma, diffuse pleural thickening and lung cancer made on form B1 100 PN

8. MESOTHELIOMA • Statutory Instrument 2002 No. 1717 • Came into force 29 July 2002 • Diffuse mesothelioma - prescribed loss of faculty • S.I. removed from regulations the provision for assessing, for the purposes of IIDB the extent of disablement arising from diffuse mesothelioma • Impaired function caused by diffuse mesothelioma to be take as amounting to 100% disablement • Confirmation of diagnosis from Consultant Physician • Fast track • IIDB paid at £123.80 per week

9. Industrial Injuries Advisory CouncilRecommendations July 2005 • Prescribed disease D8 is extended to include lung cancer where no asbestosis is present but there is evidence of substantial occupational exposure • Reference to pleural thickening removed from the terms of prescription from prescribed disease D8 • Prescribed disease D8 is paid at 100% from the outset (mirroring the current situation with mesothelioma) and claims are exempt from the 90 day waiting period • The diagnosis of diffuse pleural thickening for PD D9 is modified to make diagnosis easier for medical advisers

10. INDUSTRIAL INJURIES SCHEME • Industrial Injuries Disablement Benefit (IIDB) is paid by the DWP to claimants who have been injured through an industrial accident or who have developed a prescribed industrial disease since 5th July 1948 • IIDB is an extremely important benefit for asbestos victims to claim as it forms the basis of the state Industrial Injuries Scheme • IIDB must be claimed before entitlement to a range of additional allowances can be established • Additional allowances include Reduced Earnings Allowance, Retirement Allowance, Constant Attendance Allowance and Exceptionally Severe Disablement Allowance

11. Percentage Assessment • The amount of IIDB a claimant receives depends on the percentage assessment of disability. For all accidents and most prescribed industrial diseases benefit is paid if the percentage assessment is 14% or more. Occupational Deafness is one of the exceptions. Before there can be a payment of IIDB for hearing loss a percentage assessment of 20% is required • For Pneumoconiosis, Byssinosis & Mesothelioma a disability assessment of 1% can result in a payment of IIDB • An assessment of 1% would be paid at the 10% rate which is currently £12.38 per week • Degree of disability is assessed by a DWP appointed doctor at a medical examination. This will be arranged following a claim for IIDB • Claimant can appeal against the percentage assessed

12. INDUSTRIAL INJURIES DISABLEMENT BENEFIT IIDB Percentages weekly payment rates • 10% £12.38 euros 17 • 20% £24.76 euros 34 • 30% £37.14 euros 52 • 40% £49.52 euros 68 • 50% £61.90 euros 85 • 60% £74.28 euros 103 • 70% £86.66 euros 120 • 80% £99.04 euros 137 • 90% £111.42 euros 154 • 100% £123.80 euros 171

13. Key points – industrial injuries disablement benefit • This benefit is paid as a weekly pension for a defined period • The amount of the pension depends on an assessment of the degree of the claimant’s disability • Industrial injuries disablement pension is payable in cases of ‘loss of physical or mental faculty’ assessed at 14% or more • It can be paid in addition to other State benefits after 90 days excluding Sundays (15 weeks) from the first day the person was disabled • There is no requirement that the person has stopped working

14. EXCEPTIONALLY SEVERE DISABLEMENT ALLOWANCE • Exceptionally Severe Disablement Allowance (ESDA) is automatically considered if you qualify for one of the two highest rates of CAA and; • Care needs are likely to be permanent • There is no right of appeal if your claim is refused • ESDA is not taken into account when calculating entitlement to most income-related benefits • Current ESDA rate: £49.60 per week

15. REDUCED EARNINGS ALLOWANCE • Reduced Earnings Allowance (REA) is payable if disablement has been assessed as at least 1% and there is a current assessment in respect of an accident or prescribed disease which occurred before 1st October 1990 • The key test for REA is that you must be unable to return to your regular occupation or to do work of an equivalent standard due to the effects of the disablement • IIDB does not have to be in payment for an REA claim to be accepted • A separate claim must be made on form BI 103. • REA is taken into account when calculating entitlement to most income-related benefits. • Maximum current REA rate £49.52 per week

16. REA over pension age • Claimants who are over pension age (60 for women, 65 for men) and have been assessed as at least 1% disabled in respect of an accident or disease which occurred before 1st October 1990 who have not made a claim for Reduced Earnings Allowance should claim as soon as possible • They may be entitled to be paid REA at the appropriate rate (£49.52) despite the fact they are over pension age. Many former workers over pension age may have small assessments (less than 14%) from an accident or disease which satisfies the REA conditions. • If not sure about entitlement to REA claimants should seek advice • If in doubt, make a claim!

17. CASE STUDY • Catherine aged 73 diagnosed lung cancer • Referred to project • DS1500 and other financial matters completed • Injured at work in 1989 • Currently has an award of IIDB • Claim made for REA • Over 60 (female) and no previous REA claim • REA paid at appropriate rate • Additional £49.52 per week for patient • Applicable amount over Guarantee Pension Credit limit

18. CASE STUDY • Adam (82) has three awards of IIDB • Asbestosis, vibration white finger & industrial accident. • Tribunal (VWF) resulted in £24.76 per week IIDB • Advised on REA claim after appeal tribunal • Successful REA claim additional £49.52 • Never advised of his entitlement to REA • Claimant lost out on years of benefit entitlement. • additional £74.28 per week in industrial injuries scheme benefits.

19. RETIREMENT ALLOWANCE • Retirement Allowance (RA) replaces Reduced Earnings Allowance, for most claimants, when they reach pension age (60 for women, 65 for men) • Retirement Allowance is taken into account when calculating entitlement to most income-related benefits • Retirement Allowance current rate: £12.38 per week (euros 17)

20. CONSTANT ATTENDANCE ALLOWANCE • This benefit is paid to people who require care and attention as a result of an industrial accident or prescribed disease • Constant Attendance Allowance (CAA) is automatically considered when your disablement assessment adds up to 95% or more • Disability Living Allowance (DLA), Care Component, if in payment, will be reduced by the amount of CAA received.

21. CONSTANT ATTENDANCE ALLOWANCE • The amount of CAA depends on the level of care required • four scales of payment; • Higher weekly rate £99.20 per week euros 137 • Intermediate rate £74.40 per week euros 103 • Lower weekly rate £49.60 per week euros 68 • Part time rate £24.80 per week euros 34 • In some circumstances DLA, Care Component (under 65) or Attendance Allowance (over 65) may pay more than CAA • Seek advice on the best option • There is no right of appeal if CAA is refused. The DWP can be asked to look at a decision again if you feel that some facts in your case were not considered • CAA is not taken into account when calculating entitlement to most income-related benefits

22. EXCEPTIONALLY SEVERE DISABLEMENT ALLOWANCE • Exceptionally Severe Disablement Allowance (ESDA) is automatically considered if you qualify for one of the two highest rates of CAA and; • Care needs are likely to be permanent • There is no right of appeal if your claim is refused • ESDA is not taken into account when calculating entitlement to most income-related benefits • Current ESDA rate: £49.60 per week

23. POSTHUMOUS CLAIMS • To claim IIDB in respect of a claimant who dies you must apply to the DWP for appointee status • A posthumous claim can be made in writing to the local office • If you have one, enclose a copy of the death certificate • Benefits should be paid for the last three months of the illness • A claim must be submitted within twelve months of the person’s death • Posthumous claims can also be made for CAA and ESDA • For payment purposes, a posthumous claim is treated as though it had been made on the day the person died • The maximum amount of back payment is three months • If asbestos exposure took place only during service with HM armed forces, a War Pension, not IIDB, should be claimed • Contact the Veterans Agency

24. Pneumoconiosis etc (Workers Compensation) Act 1979 • Provides compensation between £2,068 and £58,718 for sufferers of certain dust-related diseases • Unable to claim damages from the employers where exposure occurred • Company gone out of business or no realistic chance of pursuing damages claim • The sufferer or dependants must not have brought any action for damages in relation to the disease or received an out of court settlement • DWP must accept that you have a prescribed asbestos-related disease • Claimants should normally be in receipt of IIDB • Lower amounts are awarded to bereaved relatives • Apply as soon as possible do not await IIDB award

25. PLEURAL PLAQUES • This is the least harmful form of asbestos condition • Plaques are marks on the lining of the lung which are visible on x-ray • In many cases you will not be aware that you have them • Plaques are an indicator of previous asbestos exposure • They are not a prescribed disease under the Industrial injuries Scheme • There is no claim for IIDB • It is possible to make claim for civil damages • Advise clients to contact their trade union or seek advice from a solicitor experienced in asbestos litigation