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| ISSN 1470-8108 | Issue 94 | Spring 2014 |
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Contents:
1. The Westminster Parliament and the Asbestos Tragedy 1. The Westminster Parliament and the Asbestos Tragedy By Doug Jewell, Victims’ Support Worker, Asbestos Support West Midlands1 The role played by the British Parliament in the asbestos tragedy has not always been one covered in glory. The struggle to win reforms that could improve the lives of those suffering from asbestos related diseases has gone on for decades at Westminster. There have been successes and there have been setbacks; great speeches promising much and backroom deals that denied even more. Yet amongst all this noise and intrigue the sufferer’s voice is usually absent. Usually absent, but not always. Recently, the House of Commons Justice Select Committee did offer a chance for the sufferer’s voice to be heard. They launched an investigation into mesothelioma claims in April [2014], focusing upon Government plans to lift the exemption mesothelioma cases had from certain aspects of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. At the end of April they offered both the insurance industry and sufferers’ representatives the chance to give evidence. This article examines what happened. The Palace of Westminster has been the seat of government in this country for over nine hundred years. The current Palace, which contains both the House of Commons and the Lords, mostly dates from the mid nineteenth century. It is undoubtedly an imposing set of buildings. Constructed at the height of the British Empire using the latest technology they were meant from the start to convey power, authority and historical continuity. However, the buildings also betray their origins. They had to be constructed because a great fire in 1834 burnt down most of the old Palace. That fire was immortalised in paintings by Turner, was written about by Dickens and featured in many a satirical ballad of the time. One of its main legacies was the incorporation of a number of measures designed to prevent the spread of fire through the new Palace. These included the choice of the main building materials used by Charles Barry, which were stone and iron. The roof itself was made of cast-iron, specifically to prevent a repeat of the great fire. Over the years this focus upon fire prevention has meant that whenever renovations are taking place new fire proofing materials are sought. After the Second World War they were largely asbestos containing materials. To this day no one knows exactly how much asbestos is contained within the Palace. A recent report into the “Restoration and Renewal of the Palace of Westminster,” written by a study group appointed by the Management Boards of both the House of Commons and the Lords, set out the extent of the known problem. It noted that asbestos was present throughout the buildings, including in all of the ninety-eight vertical risers that carry the water pipes, electrical cables and other parts of the essential infrastructure. The report quoted from a group of specialist consultants who had looked at asbestos in the Palace in 2007. They had concluded that “as a result of our inspections of the risers and ducts we became aware of significant dangers and risks to the health and safety of persons not only gaining access and working in risers and ducts but generally to all persons within the Palace of Westminster.” The report said “One of the reasons for this conclusion was that, although accessible asbestos had been encapsulated to make it safe, the encapsulation did not continue where pipes pass through walls and voids, or under floors. Examples were also found where the encapsulation was itself damaged, or where the passing of cables through risers and voids had dislodged asbestos dust and debris. They also noted that much of the asbestos present was in largely inaccessible areas.” (The Condition of the Palace of Westminster in 2012. Page 19). It is easy to see the way in which this grand building hides its asbestos secrets in dark and inaccessible places as a metaphor for the way Parliament has treated the asbestos tragedy, especially where powerful vested interests are concerned. From time to time examples of such treatment do come to light. For example in 2008, when it emerged that the ex Liberal MP for Rochdale, Cyril Smith, had asked the asbestos company Turner & Newall to prepare a speech for him in 1981. In this speech he argued against increased regulations, declaring: “The public at large are not at risk.” It was also revealed that Smith owned 1,300 shares in the company. Such revelations, however, often come too late to help those suffering from asbestos related diseases. So when an opportunity arrives to shine some light into the dark corners you have to take it. The Justice Select Committee hearing offered just such an opportunity. The background to the hearing was the Government’s decision, announced in December 2013, that it would end the exemption mesothelioma cases had from specific parts of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). These parts concerned changes to the rules governing the funding of personal injury claims. Until the changes were enacted, the way in which personal injury claims were funded had remained largely unchanged since the abolition of legal aid and its replacement by conditional fee agreements. These agreements had brought in success fees, which meant that in successful cases a fee could be paid to the claimant’s solicitors on top of the costs and charges agreed. This fee was paid by the defendants and was meant to ensure difficult cases could still be brought. The 2012 Act changed this system and made success fees payable by the claimant out of the compensation they were awarded in a successful case. Whilst success fees were capped at 100% of costs and no more than 25% of general damages, which were raised by 10%, many feared mesothelioma sufferers would lose out. The Act also ended the ability to recover the premiums paid for “after the event” (ATE) insurance policies from defendants. Again, these could now be recovered by solicitors from the claimant out of their damages, and again many feared that mesothelioma sufferers would lose out. That is why Parliament inserted a new Section 48 into the bill in its final stages. This Section exempted Mesothelioma sufferers from Sections 44 and 46, the sections dealing with who pays success fees and who also pays for the after the event insurance policy, pending a review into the likely affect these provisions would have. In April 2013, the changes to conditional fee agreements came in for all cases except those dealing with mesothelioma claims. In December 2013, the Government announced it was going to end the exemption. In March 2014, it published a response to a consultation it had held concerning proposals to reform mesothelioma claims. In this response it stated that the review of the LASPO exemption had been concluded and that the response to the consultation was the report of that review. It looked like a fait accompli. Yet in April 2014 the Justice Select Committee decided to investigate this review and set out its terms of reference. These were to investigate “the appropriateness of the Government’s decision to apply the provisions in sections 44 and 46 of the LASPO Act 2012 to mesothelioma claims, taking into account:
Concerned individuals and organisations were invited to give evidence and many did. The Asbestos Victims Support Groups Forum submitted a detailed paper written by Tony Whitston which forensically examined the Government’s case and found it wanting.2 As a result of that paper, and of the work done over the years, the Forum was invited to give evidence directly to a meeting of the Committee. As Tony was otherwise engaged I drew the short straw of being the representative of all those mesothelioma sufferers and their families the Forum members have been to see and help. So, no pressure there then. Luckily, the other people chosen to give evidence, Ian McFall from Thompsons Solicitors, Adrian Budgen from Irwin Mitchell Solicitors and Helen Buczynsky from Unison were more than up to the job. We were called to give evidence first and in response to the questioning of the Committee were able to outline the true situation surrounding the “review.” We explained that, in July 2013, the Government had launched a consultation about reforming mesothelioma claims which contained a raft of proposals it had developed with the insurance industry. At the very end of that consultation a question was posed about the LASPO exemption. The question asked “Do you agree that sections 44 and 46 of the LASPO Act 2012 should be brought into force in relation to mesothelioma claims, in the light of the proposed reforms described in this consultation, the increase in general damages and costs protection, and the Mesothelioma Bill?” Few at the time realised that this part of the consultation would come to be the Government’s “review” (sic) into the likely consequences of ending the LASPO exemptions. The question suggested that ending the exemption rested upon three pillars: the new proposals contained in the consultation paper; the provisions of the Mesothelioma Bill then going through Parliament; and the effects of raising the level of general damages by 10%. We explained how, in December 2013, the Government announced that it was removing one of those pillars. The proposals contained in the consultation paper for a pre-action protocol, a single electronic portal for case documents and a fixed costs regime were all being withdrawn. By January 2014 another of the pillars was shown to be absent when it became clear that there was no direct link between the provisions of the Mesothelioma Bill and the conduct of civil cases. The Bill would go on to establish a scheme to help those who could prove their mesothelioma was caused by negligent exposure to asbestos at work but could not trace a relevant insurer or employer. In the end, the Government conceded it would have no direct implications for the way in which mesothelioma claims were handled. However, they still wanted to link them as far as the dates for introducing the changes were concerned. This left one pillar; the 10% uplift in the level of general damages which would outweigh any ill effects of making success fees and ATE insurance premiums recoverable from mesothelioma sufferers who took legal action. In their response to the results of the consultation the Government claimed that no evidence had been presented of any ill effects for other personal injury claimants arising from the LASPO reforms. This included those making claims for other asbestos related diseases. Therefore, they were going to lift the exemption as announced in December 2013 because: the consultation and the Lord Chancellors consideration of the responses to it had constituted the review as envisaged by Parliament and no evidence had been presented of any likely adverse consequences for mesothelioma sufferers arising from lifting the exemption. We made very clear that there could be no evidence submitted on how mesothelioma sufferers would be affected because there had not been enough time for the evidence to be gathered. It would take between three and five years for the evidence to be available which could inform a proper review. It was also made clear that ending the exemption on the basis of an evidence based review was one thing but ending it on the basis of this process would lead to a deep sense of injustice. Ian McFall, in his closing remarks, suggested that the reason for the consultation and the Government’s response to it was to allow for the implementation of a package of measures drawn up by the Government and the insurance industry behind closed doors. Ending the LASPO exemption was just part of that package. In making these remarks he shone a clear, bright light on the way in which the Government and the insurance industry had worked together on this issue. This was a factor that came to dominate the following session, when the representatives of the insurance industry and their solicitors gave evidence. They were James Dalton, Head of Motor and Liability Insurance at the Association of British Insurers, Mike Klaiber, UK Disease Claims Manager at Zurich Insurance plc, Nick Pargeter, Partner, Berrymans Lace Mawer, LLP, and Derek Adamson, Partner, DWF LLP. They did their best. They tried to say that ATE insurance would no longer be necessary and that in any case it was only a matter of about £2,500. As Nick Pargeter put it: “in the scheme of things that is a relatively minor matter.” They tried to say that the success fee “is an arrangement between the mesothelioma claimant and their lawyer. The level of success fee is entirely a matter between those two parties.” Asked if this implied mesothelioma sufferers with an average life expectancy of eight months should be expected to shop around for a cheaper source of legal representation Mr Dalton said that he would like to see “firms (of claimant solicitors) working with the asbestos victims support forums (sic) to negotiate success fees, so that the mesothelioma claimants themselves do not have to.” They tried to prove that the ability to claim the success fee and the ATE premium from claimants would not act as a deterrent to them taking legal action. Mr Adamson said there was no evidence to contradict their view, although he admitted this was because the system was not yet operational. Mr Pargeter described the implementation of the changes as “inconvenient” for mesothelioma sufferers. In the closing stages of the session, one member of the Committee, John McDonnell, again raised the question of a link between the payment of Mesothelioma Bill costs by the insurers and the lifting of the exemption. Seven times he asked Mr Dalton from the Association of British Insurers if there was a link; if this had been the basis of the many discussions between the Government and the ABI. In the end he had to conclude that the answer to his question was yes. Mr Dalton did not reply. At the time of writing we do not know what conclusion the Justice Select Committee will come to. A report is likely and we hope it will call on the Government to hold a proper review as was intended by Parliament. However, what we can say is that the members of the Committee allowed the voices of those representing mesothelioma sufferers to be heard in Parliament. They allowed light into some of the dark places where the deals are done. On a personal note: It was a real privilege to have been one of those voices. Since the hearing some people have remarked on how calm members of our panel appeared. They seem surprised at this, especially as not one of us had appeared before a Parliamentary Select Committee before. I had no real reason to be nervous because I knew the arguments developed by the Forum, especially by Tony Whitston in our written evidence, were right. In addition, I knew that every member of our panel had met people who had been affected by mesothelioma, people whose strength and courage really are inspirational. Parliament as a building and an institution may seem intimidating, but when you have seen people face a diagnosis of mesothelioma and come out fighting you realise it is just another arena in the battle for justice. 2. Asbestos in Schools – Current Issues and Strategic Policies By Michael Lees, Asbestos in Schools Group3 Responses to Government’s Review of Asbestos Policy for Schools The Department for Education is now considering the responses to its review of asbestos policy for schools and will publish a summary by the end of June 2014. The summary will include timings for the delivery of any policy changes. There were a number of common themes and recommendations in the responses (almost all were in line with the proposals put forward by the Asbestos in Schools Group) including:
Follow the links to: Recommendations from the Asbestos in Schools Group (AiS) and the Joint Union Asbestos Committee (JUAC).4 The AiS response to the policy review.5 The JUAC response.6 Union Surveys of Members Show lack of Training The results of surveys7 carried out by the JUAC, the National Association of Headteachers (NAHT) and the Association of School and College Leaders (ASCL) add to the evidence that there is a lack of asbestos awareness and training in schools. Of the 1353 people who responded to the JUAC survey, 90% claimed to have received no training. The fact that most of these respondents were teaching assistants is of particular concern as they are the ones who pin children’s work to walls and ceilings and take books out of cupboards. Headteachers have responsibility for the safety of staff and pupils in schools, yet the NAHT and ASCL survey revealed that 43% of the 1312 headteachers that responded had received no training. Governors have overall responsibility for prioritising resources, and in academies and free schools are legally responsible for the safety of the occupants, and yet the above survey showed that 59% of the governing bodies had not been trained. These surveys underline that there is an urgent need for mandatory asbestos training for headteachers, governors, teachers and support staff in schools. Central Government Fund to Meet Future Asbestos Claims from Pupils. From September 1, 2014 a new central Government fund will meet asbestos related claims from former pupils and non-employees. The Risk Protection Arrangement (RPA) is for academies, free schools, university technical colleges and studio schools. It provides cover for various risks including asbestos risks cover for pupils and non-employees where commercial insurance cover was not previously available. AiS first raised the matter with the Government more than two years ago in a Parliamentary question in March 2012. The Government confirmed that, in general, insurance cover is not available for pupils and non-employees in schools. Local authorities self insure but academies and free schools do not necessarily have the funds to do so. AiS therefore argued for a scheme8 to be set up that would meet any future claims from former pupils. The RPA will provide that cover.9 This is a welcome step forward, but it highlights the severity of the asbestos risks to children in schools when the Government has to meet such claims, as insurance companies will not underwrite the risk. No Gas Masks or WW1 Steel Helmets should be Worn or Handled by Children or Teachers. Following tests that showed the majority of vintage gas masks contain asbestos, HSE have considerably strengthened an earlier warning to schools and now state “No gas masks should be worn or handled by children or teachers... unless it is clearly certified as safe to do so.”10 They are sold in large numbers on the web and yet it is only now that HSE are in consultation with Trading Standards to stop the sale and postage of the masks. In contrast, twenty years ago a law was passed in Australia banning the sale of gas masks containing asbestos.11 HSE also warns about the wearing and handling of WW1 steel helmets as the inner padding contains chrysotile. 3. MesobanK – Mick Knighton Mesothelioma Tissue Bank Progress Report by Jacki Gittins, MesobanK Project Manager12 MesobanK is funded for an initial three years by the Mick Knighton Mesothelioma Research Fund and British Lung Foundation with the aim of collecting archived samples of mesothelioma tissue from Pathology Departments as well as samples of pleural fluid, blood and tumour from newly diagnosed patients in selected hospitals across the UK. These samples will be processed for researchers to use, with the hope that in the not too distant future, research will assist in finding improved treatments. MesobanK is the only mesothelioma tissue bank in the UK and we hope that by pooling samples from major diagnostic centres in the UK, we can facilitate access to a very valuable research resource. The two strands of MesobanK, the collection of archived tumour samples and the prospective collection of samples, are running in parallel. Research Ethics Committee approval has been gained and MesobanK now has all the regulatory approvals in place to ensure compliance with UK laws. The next step is to gain the formal approval of the participating hospitals and we are very pleased with the progress we are making. Papworth, Nottingham, Sheffield, Edinburgh, Manchester, Portsmouth and Aberdeen hospitals have all given their approval for the archived samples to be donated and we are close to making final arrangements with Leicester. For the prospective sample collection, arrangements are in place with Papworth, Portsmouth, Doncaster, Bristol and Sheffield and progress is being made with Manchester, Glasgow and Leicester. Additional hospitals may be asked to join in the future as MesobanK becomes established. Over a hundred archived samples have been contributed to MesobanK and are currently being examined at Papworth Hospital. These samples along with anonymous data about the type of mesothelioma, the treatment the patient received and some history about the type of asbestos exposure will become an extremely valuable tool for researchers. It is our aim to collect 1000 archived samples and process them into a Tissue Micro Array. We will store all the associated data securely in a database designed specifically for the project, which will enable a wide range of researchers to use the samples and for the data their research generates to be shared more effectively. The collection of new samples commenced in mid February 2014 and we are extremely pleased to let you know that 13 sets of samples are banked in the freezers. We aim to collect up to 300 new samples to distribute to researchers. After careful consideration we set boundaries for the types of research MesobanK would support – asbestos related disease and mesothelioma research only, within the UK and internationally. It is our aim to ensure wide publication of research we support using a web site and newsletters as well as articles for linked organisations. MesobanK has appointed a Steering Committee which to date has met twice (June 2013 and January 2014). With Professor Stephen Spiro as Chairman, this committee will use their considerable influence to assist MesobanK to fulfil its strategic aims. We have already received enquiries from researchers who may wish to use the samples and data – a little premature but it is encouraging to know the word is getting out there without us having put any great effort into marketing and advertising yet. MesobanK has a small project team based within Papworth Hospital NHS Foundation Trust, headed by Dr Robert Rintoul. We welcome comments, suggestions and ideas from all interested parties. A web site has not yet been designed but we can be contacted by email or by telephone – it would be good to get your feedback. Thank you for reading. The Mesothelioma Act Uplift Two months after the Mesothelioma Act was passed, claimants learned that compensation awards made under the Diffuse Mesothelioma Payment Scheme were to be increased from £115,000 to £123,000.13 The scheme, which is being administered by Gallager Bassett, became operational on April 6, 2014.14 New Mesothelioma Fact Sheet Information published in April 2014 confirmed the UK’s elevated mesothelioma incidence as well as high mortality rates: “Mesothelioma death rates in Great Britain have increased more than eleven-fold in men and around eight-fold in women since the early 1970s.”15 Amongst the male population of England the highest rates of mesothelioma occur in the south, south-east and north of England. “This geographical variation reflects the location of industries involving asbestos exposure.”16 The areas with the highest male mesothelioma death rates were Barrow-in-Furness, West Dunbartonshire and North Tyneside; for women, the worst affected areas were Barking & Dagenham, Sunderland and Newham.17 Scotland Moves to Reclaim NHS Asbestos Costs On May 14, 2014, the Scottish Parliament debated a bill entitled: Asbestos-related Conditions (Healthcare Costs Recovery).18 The text of motion S4M-09697 was: “That the Parliament welcomes the proposals by Clydeside Action on Asbestos regarding the recovery of costs to the NHS of treating people with asbestos-related conditions and diseases and considers that these proposals would address these health issues here in Scotland and, in doing so, help the constituents of Glasgow Anniesland, the home of generations of shipyard and engineering workers and their families, many of whom were exposed to asbestos-related illness during their lives.” Scottish campaigners allege that NHS Scotland pays more than £20m/year in diagnosing and treating patients with asbestos-related diseases. “Asbestos: Hidden Killer” Campaign to be Resurrected In May 2014, it was reported that the HSE’s award-winning campaign – “Asbestos: Hidden Killer” – would be resurrected after a four year hiatus.19 The asbestos awareness initiative, which used a variety of media and promotional platforms, targeted groups at high risk of occupational exposures such as trades people and construction workers.20 There are, however, concerns that due to HSE cutbacks, the implementation of the new campaign could be seriously affected. Labour Party Pledge to Asbestos Victims At an asbestos conference held by victims’ groups in the Midlands on May 12, 2014, MP Kate Green, Shadow Minister for Disabled People, announced that the Labour Party would adopt a multi-pronged approach to support asbestos victims.”21 Labour would, Ms. Green said:
Government U-Turn Expedites Legal Process A change in government policy which had seriously compromised personal injury litigation by the families of deceased asbestos victims will be overturned according to a notice of amendment tabled in the House of Commons on May 7, 2014.22 Last year, HM Revenue and Customs implemented new requirements which stipulated that requests for the employment history of a deceased claimant could only be released if a High Court order had been obtained. The introduction of this condition caused serious difficulties and delays in cases involving long-tail disease claims such as mesothelioma. Negotiations with the Ministry of Justice to reverse the HMRC’s policy appear to have succeeded. ___________ 1 Doug Jewell can be contacted by email at: dougj@wmht.co.uk 2 All of the evidence submitted can be found here: http://www.parliament.uk/business/committees/committees-a-z/commons-select/justice-committee/inquiries/parliament-2010/mesothelioma-claims/ 3 Michael Lees can be contacted by email at: michael@lees1262.fsworld.co.uk 4 AiS and JUAC recommendations updated May 7, 2014. 5 AiS response to policy review. March 30, 2014. 6 JUAC response to policy review. March 30, 2014. 7 NAHT and JUAC survey of members. March 30, 2014. 8 Public liability asbestos risk insurance. December 4, 2013. 9 Academies Risk Protection Arrangement. 10 HSE warning Gas masks. May 9, 2014. 11 Consumer Protection Notice #17. "Product Safety Australia" Sept. 1993. http://www.productsafety.gov.au/content/index.phtml/itemId/973442 12 To contact Jacki Gittins, email: jacki.gittins@papworth.nhs.uk 13 Department of Work and Pensions. Asbestos victims to get £123,000 in compensation. March 6, 2014. 14 Gallagher Bassett. Diffuse Mesothelioma Payment Scheme. 15 Cancer Research UK. Mesothelioma. April 2014. 16 Cancer Research UK. Mesothelioma Incidence Statistics. 2014. 17 HSE. Mesothelioma Mortality in Great Britain by Geographical Area, 1981-2011. March 2014. 18 Asbestos-related Conditions (Healthcare Costs Recovery). 19 “Asbestos: Hidden Killer” campaign to be resurrected. May 12, 2014. 20 HSE. Insight research to inform the Asbestos 2013-14 Campaign. Final Report. October 2013. 21 Labourlist. These people suffered simply from going to work – Labour will deliver them justice. May 14, 2014. http://labourlist.org/2014/05/these-people-suffered-simply-from-going-to-work-labour-will-deliver-them-justice/ 22 House of Commons Notices of Amendments given on Wednesday May 7, 2014. [NC6]. ___________ Compiled by Laurie Kazan-Allen |