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

European Hazards

ASBESTOS-RELATED DISEASE

Problems facing asbestos sufferers, carers & advisors

Tommy Gorman

West Dunbartonshire Council

Welfare Rights Representation Unit

Clydebank Asbestos

Group Fighting for truth and justice for the victims of asbestos

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

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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

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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

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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)

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3 Routes to CompensationDepartment 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

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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

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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

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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 advisersClydebank Asbestos


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

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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

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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

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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

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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

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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

REDUCED EARNINGS ALLOWANCE

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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!

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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

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CASE STUDY

Adam (82) has three awards of IIDB Asbestosis, vibration white finger & industrial

accident. Tribunal (VWF) resulted in £24.76 per week IIDBAdvised on REA claim after appeal tribunalSuccessful REA claim additional £49.52 Never advised of his entitlement to REAClaimant lost out on years of benefit entitlement. additional £74.28 per week in industrial injuries

scheme benefits.

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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)

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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.

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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

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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

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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

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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

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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

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Documents

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