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Diffuse Mesothelioma Payment Scheme
Department for Work & Pensions
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Annex A Oversight Committee 6 April 2014 – 5 April 2015
I am pleased to publish the annual review of the Diffuse Mesothelioma Payment Scheme (DMPS), which covers the period 6 April 2014 to 5 April 2015 (the financial year 2014/15). The DMPS was introduced in April 2014 and started making payments from July 2014 so this review covers the first year of its operation.
This report begins by providing important contextual information on the background to the DMPS, before moving on to set out key performance data and assess the extent to which the scheme’s primary objectives have been met. It also provides more information on the levy that funds the DMPS and the changes that have been made to the legislation governing it over the past year.
The DMPS is administered by Gallagher Bassett International Ltd (on behalf of the Department) and the report therefore also reflects their successful implementation of the arrangements to deliver the process and payments.
I would like to thank Gallagher Bassett International and Tracing Services Limited (who collect the scheme levy) for their commitment and hard work during the first year of the DMPS’s operation. I would also like to thank the members of the DMPS Oversight Committee for giving up their time to work with us to review the performance of the scheme and support its effectiveness throughout the year. Finally, I would like to thank the insurance industry for working constructively with us on the change to the tariff rate which was introduced earlier this year.
Throughout 2014/15 the focus was on ensuring that the DMPS was implemented successfully. Looking forward, I remain committed to providing diffuse mesothelioma sufferers who have no alternative route to access financial redress with a simple, efficient process for accessing the support the DMPS provides.
Minister for Disabled People
It is universally recognised that working people should have proper protection from personal injury or disease arising during their work. When this principle is breached through negligence or breach of statutory duty, it is right that a person should be compensated by their employer or employer’s insurer.
Many sufferers of diffuse mesothelioma, caused by exposure to asbestos, are unable to find an employer or insurer against whom to make a claim. These people were negligently exposed to asbestos whilst at work and subsequently developed a fatal disease. However, in the past they went uncompensated because sufficient records did not exist to trace the responsible employer or insurer. The launch in April 2014 of the Diffuse Mesothelioma Payment Scheme (DMPS) addressed this market failure.
This report sets out the findings of the first annual review of the DMPS, in accordance with the Diffuse Mesothelioma Payment Scheme Regulations 2014 (regulation 27). It sets out whether the DMPS meets its primary objectives of:
(a) providing a scheme of last resort for individuals who are unable to claim civil compensation from a negligent employer or their insurer; and
(b) providing an application and determination process which is simple, impartial, quick and sensitive to sufferers’ and their dependents’ circumstances.
In addition, it also provides a summary of key data related to the scheme, more detailed information relating to the levy that funds it and includes the annual report produced by the DMPS Oversight Committee1.
Diffuse mesothelioma: causes and consequences
Diffuse mesothelioma is a fatal cancer of the lining of the lungs, or more rarely the lining of the abdomen, or both, caused almost exclusively as a result of exposure to asbestos. It is a ‘long-tail’ disease, where symptoms may not appear for a significant period, sometimes thirty to forty years following exposure. Many cases of diffuse mesothelioma are diagnosed at an advanced stage of the disease because symptoms are non-specific and appear late in the development of the illness. Once diagnosed however, life expectancy for sufferers is short, with most of those affected dying within twelve months of diagnosis. Treatment is most often focused on palliative care to ease symptoms.
The role of employers and the insurance industry
The Employers’ Liability (Compulsory Insurance) Act 1969 requires all employers in Great Britain to insure their liability to their employees for bodily injury or disease sustained through the course of their employment.
As a result, those diagnosed with an employment-related disease or injury should be able to pursue a civil compensation claim against their employer or the relevant insurer. However, there have long been concerns that some individuals, through no fault of their own, are unable to make a civil claim due to difficulties in tracing the relevant employers’ liability insurance policy. The issue is particularly acute for those suffering ‘long-tail’ illnesses such as diffuse mesothelioma, where the employer may no longer exist.
In recognition of this market failure, the insurance industry agreed to fund a scheme which would make lump sum payments to people who had contracted diffuse mesothelioma as a result of working with asbestos, but who were unable to pursue civil action against their former employer or their employers’ liability insurer.
Implementation of the DMPS
On 25 July 2012 the Government announced that it would legislate to create a scheme of last resort, funded by the insurance industry, for people who developed diffuse mesothelioma but were unable to progress a claim for compensation against the relevant employer or insurer. The DMPS was established by the Mesothelioma Act 2014, with detail on how it would operate set out in the Diffuse Mesothelioma Payment Scheme Regulations 2014. These regulations set out the eligibility conditions for those making a claim, what information and evidence is required to support an application, how the application should be administered and how applicants might ask for a review and subsequently appeal should they disagree with the decision made by the scheme administrator.
The Department ran a competitive tender exercise to find a scheme administrator for the DMPS. In total, five applications were received. The selection process complied with the EU Procurement Directive principles, and details of specific requirements were made publically available. As a result of this exercise, Gallagher Bassett International Ltd was appointed as the scheme administrator.
The DMPS began taking applications on 6 April 2014, and started making payments from 1 July 2014.
The DMPS is funded by an annual levy paid by the insurance industry. The Diffuse Mesothelioma Payment Scheme (Levy) Regulations 2014 place an obligation on active insurers in the employers’ liability insurance market to pay towards the cost of the levy based on their relative market share. As the DMPS is a demand led scheme, the calculations for the levy will be done afresh each year and will reflect the level of applications that are expected to be received. Should application levels increase, the levy will rise, should they decrease the amount charged via the levy will fall.
While the insurance industry agreed to fund the full cost of the DMPS, it made clear that should the cost of the levy rise above 3 per cent of the gross written premium of the employers’ liability insurance market, it could not be guaranteed that insurance companies would not pass this cost to their customers via increased premiums. To ensure that the insurance industry itself funds the DMPS and not individual employers, Government agreed that the levy would not exceed the equivalent of 3 per cent of the employers’ liability insurance market in any one year.
Tracing Services Ltd (a subsidiary of the Motor Insurers’ Bureau) is under contract to collect the levy.
The DMPS is intended to be straightforward, and eligible applicants should receive the correct payment promptly. To achieve this outcome, the scheme administrator, has a number of duties to carry out in the management and operation of the DMPS. These include receiving and assessing applications, making payments to applicants, undertaking reviews and participating fully in the First-tier Tribunal appeals process.
In order to receive a payment, applicants must demonstrate how they meet the eligibility criteria by providing the scheme administrator with information on their individual circumstances and providing supporting evidence for their application. The application form is available electronically via the DMPS website (https://mesoscheme.org.uk) or in paper format by calling the scheme administrator on 0131 331 9090. The evidence required to support the application typically includes:
a copy of the diagnosis of diffuse mesothelioma;
proof of employment history;
a witness statement detailing how the exposure to asbestos occurred; and
confirmation that they are unable make a civil claim (the results from an Employers’ Liability Tracing Office search).
DMPS payments are subject to recovery of benefits rules, meaning any relevant social security benefits and government lump sum payments already paid in respect of diffuse mesothelioma will be recoverable from payments made under this scheme. This is to ensure, in line with other benefits, that a person does not receive a payment twice for the same condition.
The DMPS has two main objectives:
a) To provide a scheme of last resort for individuals who are unable to claim civil compensation from a negligent employer or their insurer
The underpinning rationale of the DMPS is that it should never undermine the route to civil compensation or become a sufferer’s primary port of call for a lump sum payment in respect of their diffuse mesothelioma. The Employers’ Liability (Compulsory Insurance) Act 1969 requires employers to insure their liability to their employees for bodily injury or disease sustained through the course of their employment. Therefore, the scheme administrator must ensure all attempts to pursue civil compensation have been made and that rigorous checks are in place for all claims.
b) To provide an application and determination process which is simple, impartial, quick and sensitive to sufferers’ circumstances
The aggressive nature of diffuse mesothelioma means it is important that applications should be processed in a timely and accurate manner. All steps necessary should be taken to ensure swift but accurate decision-making. It is therefore essential that the DMPS application process is simple and straightforward, and that it does not unnecessarily distress the applicant or delay an eventual payment.
To achieve this the scheme administrator must have a good understanding of the disease and its effects, be sensitive in its interactions with applicants, their dependents or representatives, and be able to carry out all its functions quickly and efficiently. Delivering upon this objective also means the scheme administrator can provide a value for money service.
2 Scheme monitoring and performance
This chapter sets out how the DMPS’s performance has been monitored during the first year of operation and provides an assessment of how it has delivered against its objectives.
The Department’s overall assessment of performance draws upon a number of sources:
monthly management information provided by the scheme administrator;
performance against agreed service standards;
official statistics for the financial year 2014/2015;
findings of the DMPS Oversight Committee’s first annual report (Annex A); and
an independent audit undertaken by PricewaterhouseCoopers LLP (PwC).
During the first year of the DMPS, the Department scrutinised the scheme administrator’s performance on a monthly basis. At these meetings management information related to the scheme was discussed, as were any queries received by the scheme administrator, contractual, financial and operational issues. The management information provided typically included the following (although this list is not exhaustive):
number of applications received;
whether those applications were successful or unsuccessful and the reasons for rejecting unsuccessful applications;
method of application (via the website or post);
break down of age and gender of applicants;
number of reviews requested on decisions and their outcomes;
number of reviews that are subsequently referred to First-tier Tribunal;
timescales relating to different elements of the process; and
number of complaints.
Detailed information relating to DMPS performance was released as official statistics in July 20152. These statistics showed that the scheme received 410 applications during the financial year 2014/2015. Of these claims:
almost two thirds (62 per cent) of applications were successful;
The vast majority of applicants (95 per cent) were male. This broadly reflects the historic gender balance of those professions where exposure to asbestos, and therefore the risk of suffering from diffuse mesothelioma, has been high.
The average (mean) age of successful applicants at the time of diagnosis was 72 years, with 62 per cent of all successful applicants aged between 65 and 79 years.
Initially the bulk of applications received related to a diagnosis pre-6 April 2014. This reflects a ‘stock’ of eligible people diagnosed since 25 July 2012 (or their eligible dependents) who were waiting for the scheme to open. This changed later, and between January and 5 April 2015 more applications were received from those diagnosed after the DMPS launch than from those diagnosed before this date.
The Department’s impact assessment4 had anticipated that there would be over 900 applications in the first year. The data collected for the first full year of applications shows that actual volumes came in at just under half this level. We will continue to monitor volumes closely and will work with the scheme administrator and the DMPS’s Oversight Committee to understand the possible reasons for this.
As a result of applications being lower than anticipated, the total amount awarded by the DMPS in its first year of operation has also been lower than was originally expected. In 2014/15 a total of £30.2 million was awarded to successful applicants. This figure represents the total of all tariff payments before any deductions to recover monies already paid in respect of diffuse mesothelioma. Taking this into account, £24 million was made in direct payments to successful applicants and £6 million was repaid to the Department as ‘compensation recoveries’. The impact assessment had estimated that £76.7 million would be paid to successful applicants, with £17 million repaid in compensation recoveries.
The average (mean) DMPS award in 2014/2015 was around £122,000.
Complaints, reviews and appeals
The scheme administrator received no complaints during the first year of the DMPS’s operation. During the monthly performance meetings with the Department, the scheme administrator was able to provide substantial evidence of how they had made considerable efforts to ensure that all applicants, whether sufferers themselves, their dependents or their representatives, were given clear information on the process, treated sensitively and provided with as much support as possible.
In their annual report the DMPS Oversight Committee praised the quality of service provided by the scheme administrator.
Thirty five applicants or their representatives requested a review of the decision made by the scheme administrator during 2014/15. In around one third of these cases the review resulted in a different outcome for the applicant. It is worth noting that in the majority of the cases where a decision was reversed, further information or evidence had been provided to support this decision and that if this evidence had been produced earlier in the application process, the scheme administrator would have made a different determination in the first instance.
During 2014/15 there were 15 applications for appeal to the First-tier Tribunal, with most of these still pending as of 5 April 2015.
Performance against objectives
Using the information available, the Department believes the DMPS has met both its key objectives in its first year of operation.
a) To provide a scheme of last resort for individuals who are unable to claim civil compensation from a negligent employer or their insurer
The DMPS was designed to be a scheme of last resort, providing lump sum payments to those who are, for no fault of their own, unable to pursue civil compensation for their fatal disease. Evidence from the independent audit conducted by PwC for the Department clearly shows that the scheme administrator has put in place effective mechanisms and processes to check that applicants meet all the relevant eligibility criteria for the scheme.
Management information shows that in the majority of unsuccessful applications, an employer or insurer had been identified via an Employers’ Liability Tracing Office search. These applicants would have been able to go on and pursue a civil action in order to receive compensation for their diffuse mesothelioma.
The controls and checks implemented by the scheme administrator in relation to eligibility and associated supporting evidence are well documented and the Department is confident that the DMPS is being managed in such a way that ensures it is a scheme of last resort.
In addition, this chapter has also shown evidence that the DMPS is helping significant numbers of people. 255 applicants received lump sum payments averaging £122,000 that they would not otherwise have had access to.
b) To provide an application and determination process which is simple, impartial, quick and sensitive to sufferers’ circumstances
For their audit, PwC visited the offices of the scheme administrator to speak to case handlers and see first-hand how applications were being assessed. Evaluating the effectiveness of the end-to-end claims process for the DMPS was a key part of the audit, checking that effective controls and processes were in place. Auditors found the scheme administrator to be adhering to their contractual and legislative obligations and commitments during a four day site visit to their Edinburgh offices.
As part of their review of scheme performance, the DMPS Oversight Committee reviewed a broad range of redacted cases. They were impressed with the diligence with which the scheme administrator followed up with applicants where evidence or information was missing from the original application to ensure prompt handling of the claims, and they were satisfied that payments were being made in a timely manner.
The Oversight Committee was also satisfied that a consistent approach was taken by the scheme administrator’s case handlers and that the eligibility criteria were being applied correctly.
The scheme rules make clear that the scheme administrator can employ flexibility in relation to deadlines for providing information, bearing in mind applicants’ circumstances and the complexity of their cases. In 2014/15 four out of five applications received by the scheme administrator required more information than was initially provided by the applicant in order for a decision to be made. The scheme administrator has been happy to allow applicants as much time as necessary to provide this information in recognition of the difficult circumstances involved.
The scheme administrator has also taken steps to build good working relationships with a number of firms of solicitors, to further ensure clarity around the information required in support of applications and thereby speeding up application processing times in the future.
3 The DMPS levy
On 28 November 2014 the Government announced the amount of the first annual DMPS levy to Parliament5. Using data from the first seven months of the scheme’s operation, it was estimated that the total costs of the DMPS in 2014/15 would come to £32 million. In January 2015, active insurers in the employers’ liability market were notified in writing of the amount of their payment. The contractor set out in its letters the amount due, how that amount was calculated and how payment could be made.
The calculation for the levy was made as follows:
(payments made to date + future payments awarded) + administrative costs – recovered costs = total levy
Management information provided by the scheme administrator showed that between April and October 2014 £16,500,000 had been paid out to successful applicants. Using this data, Departmental analysts estimated the number of successful applicants for the remaining part of the year and multiplied this by the average payment made to date. This gave a figure of £24,000,000.
The administrative costs of £140,000 incurred in the first year of the scheme included a one-off set up fee, monthly administration fee and per application processing cost charged by the scheme administrator and the cost of the levy collection for 2014/15.
The level of recoveries was calculated using actual data for the first seven months of the scheme and applying this to the remaining months. This led to recovered costs estimated at a total of £8,900,000.
A levy of £32 million was less than had been originally anticipated, as application volumes to the DMPS were lower than predicted in the impact assessment. £32 million equated to roughly 2.2% of employers’ liability gross written premium, and therefore came in under the 3% limit agreed with the industry. All costs incurred by the DMPS were included in the calculation, and, as had previously been announced, compensation recoveries were netted off7.
4 Changes to the DMPS in 2014/15
This chapter sets out detail on changes made to the DMPS during this first year of operation and responds to the Oversight Committee’s key recommendations on potential changes to consider in the future.
Changes to the table of tariff payments
Two changes were made to the Diffuse Mesothelioma Payment Scheme Regulations 2014 in the period between 6 April 2014 and 5 April 2015, both of which updated the tariff table of payments.
The first change was laid before Parliament on 7th April 2014 and came into effect on 1st July 20148. The new tariff table increased the payment to successful applicants from 75% of average civil claims to 80% of average civil claims. The commercial process to contract with a provider to deliver the DMPS, which had concluded during the passage of the original regulations, identified savings in administrative costs that allowed this increase in the level of payment.
As has been noted earlier in this report, monitoring of the early operation of the DMPS showed that the number of applications being received was lower than had been estimated before the scheme came into effect. This meant that the costs of the scheme were also proving to be lower than had been estimated.
On 10th February 2015 the Government announced that all applicants to the DMPS with a diagnosis on or after this date would be eligible for an increased level of payment. The Diffuse Mesothelioma Payment Scheme (Amendment) Regulations 20159 were laid before Parliament on 27th February 2015 and came into effect on 31st March 2015, and increased the tariff table of payment from 80 per cent of average civil claims to 100 per cent.
As is to be expected, people who have been diagnosed with diffuse mesothelioma may not submit their application to the DMPS immediately. Due to the short amount of time between this announcement and the end of the scheme’s first year of operation, no payments were made before 5th April 2015 at this increased rate.
Recommendations of the Oversight Committee
The Committee provides an independent view of how the DMPS is operating and the applicant experience. It complements the Department’s own monitoring arrangements. More information on the DMPS Oversight Committee can be found on GOV.UK10, including a list of members and copies of the minutes of their meetings.
A copy of the Oversight Committee’s first annual report is attached at Annex A. The report mentions two areas where it has made suggestions for changes to existing processes. The first is that is believes the amount included in the tariff payment to cover legal costs should be made explicit to encourage applicants to seek advice and assistance in applying. The second is that some of the communications to applicants by the scheme administrator could be more tailored and could provide information about other options available to applicants if their case was rejected.
The Department believes that the DMPS provides a simple and straightforward application process, which, with the support of the scheme administrator, can be navigated by applicants and their families without the need for legal representation. However, the right exists for applicants to choose to apply via a legal representative should they prefer to do so. The scheme administrator makes clear to any applicants who make contact with it, that both options are available. The Department therefore believes that applicants have access to all the information they need in order to make an informed choice on whether to engage legal representation or not and plan to make no changes in this area.
In respect of the Oversight Committee’s second recommendation, the scheme administrator has reviewed its communications and improved them where possible. Where appropriate, the scheme administrator encourages applicants to contact the Department to find out more about other options available to applicants whose applications have been rejected.
Annex A: Oversight Committee 6 April 2014 – 5 April 2015
Terms of Reference
The Oversight Committee serves as an independent advisory service to the Department of Work and Pensions (DWP) providing stakeholder perspective on the Scheme where appropriate, flagging any potential problems in the running of the Scheme and complementing the monitoring function carried out by DWP, ensuring that eligible people are receiving payments through a reasonable and efficient process, and ensuring that the Scheme receives sufficient scrutiny.
The full Terms of Reference are on the GOV.UK website:
The membership of the Oversight Committee is made up of representatives from key interest groups with links to stakeholders and end users:
Chair (acts as an independent voice on the Committee)
Baroness Rita Donaghy
Asbestos Victims Support Group (AVSG)
Trades Union Congress (TUC)
Steve Bellingham (Royal Sun Alliance)
Association of Personal Injury Lawyers (APIL)
Forum of Insurance Lawyers (FOIL)
Status of Oversight Committee
The Oversight Committee’s legal status is a stakeholder group/forum (Cabinet Office category E2);
DWP retains formal responsibility for monitoring the performance and administration of the Scheme. The DWP is not bound to accept or act on any of the findings of the Oversight Committee. Contract management activities in relation to the administration of the Scheme remain the sole responsibility of the DWP;
Appropriate secretariat support for the Oversight Committee is provided by the relevant policy team within DWP.
Members give their time on a voluntary basis.
The Oversight Committee has held four meetings during its first year (2014-2015) and minutes are available on the DWP website:
The Committee considered monthly management information reports from the scheme administrator, Gallagher Bassett International Ltd (GBI), had two meetings with GBI, including a half day visit to their offices in South Queensferry, Scotland.
The Committee considered and reviewed a random sample of 20 redacted cases provided by the scheme administrator. This was not intended to be a technical audit, but a review of case papers to assess the way in which the scheme administrator was handling applications.
The Committee also reviewed and asked questions about the processes relating to the Department for Work and Pensions (DWP) and the Compensation Recovery Unit (CRU), the Employers Liability Tracing Office and First-tier Tribunals.
The Committee did not deal directly with Scheme users. However, it did monitor whether any formal complaints had been made.
The Committee’s Approach
The Committee’s role during its first year was to examine the processes between the different agencies involved, satisfy itself that management information was adequate, that the communication to applicants and potential applicants was satisfactory and to ensure that each case was conducted in a thorough and timely manner.
This involved studying and commenting on monthly management information provided by the scheme administrator and asking questions about the process, understanding that the scheme administrator was working to the Key Performance Indicators agreed with the DWP. It also involved working with the DWP particularly concerning the process whereby benefits already paid to successful applicants were clawed back by the CRU before the compensation award was issued.
Particular issues which arose included publicity and communications, although this was not the Committee’s direct responsibility, the extent of legal representation and the number of rejected applicants who were eligible to apply under different existing schemes.
The Committee adopted a pragmatic approach dealing with issues and asking questions as they arose between meetings. This was recorded in an action log provided by the DWP secretariat.
1. The Committee is satisfied that it received full cooperation and appropriate information in order to carry out its work.
2. Management Information – the total number of applications received was 410 with 255 accepted, 90 denied, 10 withdrawn and 50 decisions pending. The total compensation paid out was £24,000,000. There were no formal complaints. These figures were lower than estimated forecasts. The committee wished to satisfy itself that all possible steps were being taken to ensure that eligible applicants were aware of the scheme. Information about the increasing use of the website provided by the scheme administrator and developing publicity strategies by the DWP were very helpful.
3. Redacted Cases – 20 sample cases were reviewed by the Committee. These were redacted to preserve confidentiality. It was agreed that the scheme administrator was managing cases well and applying the eligibility criteria correctly. A common sense approach was apparent and the Committee was impressed by the diligent chasing of responses from applicants where evidence or information was missing from the original application.
There appeared to be a consistent approach to the case handlers’ management of cases across the sample. There was evidence that the scheme administrator was sensitive and supportive in their approach to dealing with direct applicants unsupported by professional advisers.
4. Compensation payments – The Committee accepted that compensation payments were being made in a timely manner.
5. Correspondence – It was suggested that the amount included in the tariff payment to cover legal costs should be made explicit to encourage applicants to seek advice and assistance in applying. It was also suggested that some of the communications to applicants by the scheme administrator could be more tailored and could provide information about other options available to applicants if their case was rejected. It was accepted that this was not intended to add to the overall cost of administering the scheme.
6. First Tier Tribunals – a total of 15 applications have been made to First-tier Tribunals. Although it is too soon to make general comments about outcomes, the Committee will continue to monitor First-tier Tribunal cases.
7. Scheme Administrator – the Committee was impressed by the quality of service provided by the scheme administrator, Gallagher Bassett International Ltd. The company was very open and informative about its work and gave full cooperation to the Committee.
8. Secretariat – the Committee is grateful for the support of the DWP policy team in providing a part-time secretariat, facilitating communication between various agencies and providing a meeting venue. Particular thanks are due to Ana Easton.
Conclusions by the Chair
The Committee consists of volunteers representing very different organisations. It developed a collegiate approach from the start and has benefitted from the enormous range of knowledge and experience that each member brings to the work. Much of this was conducted off-line and has proved effective. Our work will continue but the first year was important to establish our approach and to help ensure the successful launch of the scheme of last resort for diffuse mesothelioma. I am most grateful to all members of the Committee for their support and hard work.