The Mesothelioma Bill – A Gift to Insurers1
Asbestos victims and their representatives have welcomed the Mesothelioma Bill. After all, it is the first attempt to remedy a long-standing injustice. But, on close examination, it is a gift to insurers who could not indefinitely hide behind their own failures and evade liability for insurance they wrote for so many years. The day of reckoning has come, but at great cost to asbestos victims and with a great discount to insurers. It is in examining the detail of the payment scheme that the true cost to asbestos victims is found. This article sets out the main elements of the scheme and then discusses the Government's rationale for its generosity to insurers.
Background
For decades, insurers wantonly destroyed or simply lost records of employers' liability insurance – insurance which victims of very long latent asbestos diseases, such as mesothelioma, would later come to rely on long after the companies who exposed them to asbestos had ceased trading. Unmoved by the suffering and incalculable loss of life caused by asbestos, insurers persistently refused to accept responsibility for their failure to retain records and turned their backs on dying asbestos victims, who searched in vain for evidence of insurance which might provide some security for the families they would leave behind.
At last, in February 2010, the Labour Government consulted on measures to remedy this gross injustice with a recommendation to set up an Employers' Liability Insurance Bureau (ELIB), similar to the Motor Insurance Bureau (MIB) which pays compensation in the event negligent drivers are uninsured or insurance cannot be traced. The consultation closed in May 2010 and responsibility for responding to the consultation fell to the Coalition Government Minister, Lord Freud. Two years later, on the 25 July 2012, Lord Freud announced his response.
The Mesothelioma Bill and the Diffuse Mesothelioma Payment Scheme
Instead of creating an ELIB, the Government has drafted the Mesothelioma Bill to set up a Diffuse Mesothelioma Payment Scheme (Payment Scheme), funded from a levy on active insurers, which will pay discounted average compensation based on age to mesothelioma sufferers who were diagnosed on or after 25 July 2012. The Bill commenced in the House of Lords where the discounted payment of 70% of average compensation was increased to 75%. The Bill has now commenced its passage through the House of Commons. Royal assent is expected to be given in April 2014 and payments are set to commence in summer 2014.
It is estimated that approximately 3,500 payments will be made by 2024 at a cost of £322 million. Although average compensation in 2012 was £154,000, due to the increasing age of claimants it is expected that average litigated settlements over the first ten years of the scheme will be £124,286. At 75% of this figure, the average scheme payment would be £93,214. However, benefits and lump sum payments would be deducted in full, at an average deduction of £20,480, reducing the average payment to £72,734.
The levy will be collected by the Department of Work and Pensions (DWP) and treated as a hypothecated tax, i.e. public money. Dependants may claim under the scheme, but unlike claims in law, no payment will be made to the deceased's estate if there are no dependants. However, the scheme applies common law rules for recovery of benefits. Peers challenged the Government's very selective application of common law rules, but to no avail.
Fifty per cent of asbestos victims are excluded from the scheme, which is limited to mesothelioma sufferers only, even though it would only increase the cost by 20% to include all asbestos victims. Despite the fact that it took two years to respond to the consultation, the Government has refused to accept the modest request to set the eligibility date at the commencement of the consultation, 10 February 2010.
The scheme excludes claims for negligent environmental exposures and contaminated work clothes exposures, and claims from the self-employed. Turner & Newall (T&N) claimants, who are not protected by T&N insurance and are paid just 27% of tariff payments from T&N scheme funds, are also excluded.
The payment scheme is the result of two years' negotiation with insurers held behind closed doors in which insurers drove a hard a bargain, reducing scheme benefits well below the limit of acceptability. With threats of court action and utter intransigence, insurers have bullied and faced down the Government, thereby gaining an overwhelming advantage.
The Government expects to receive £71 million in recovered benefits and lump sum payments in the period 2014 to 2024, of which £17 million is to be given as a gift to insurers to help them out. This is a gift; it is not to be paid back. The Government is also lending insurers £30 million to help to “smooth” the first four years when there will be a spike in claims due to claims coming forward from 25 July 2012. This money will be paid back in years six and seven.
The insurers have insisted that they will pass on levy costs to businesses if the levy exceeds 3% of the annual amount they receive from employers' liability premiums, i.e. Gross Working Premium (GWP). They argue that anything over a 70% payment will exceed 3% GWP. The Government has disputed the insurers' estimates and their figures show that over the initial 10 years of the scheme, 100% compensation could be paid without exceeding 3% GWP. Nevertheless, the Government has accepted the insurers' estimates and the arbitrary 3% threshold and have pledged not to levy insurers above 3% GWP.
For the first four years of the scheme (2014-2018) insurers will have to meet the cost of claims, but the DWP will fund any cost in excess of 3% GWP. After the first four years, the DWP will have to estimate the annual cost of claims and set the levy accordingly. Any shortfall in the levy is the DWP's responsibility and any surplus will be paid into the Government Consolidated Fund. If the estimated levy payment is above 3% GWP the DWP will pay the excess, not the insurers.
Discussion
The Government justifies its concessions to insurers saying the insurers paying the levy are not necessarily the ones who took the premiums paying for untraceable historical policies so they have to be fair to them. But insurers should take collective responsibility for their collective failure. If this is “rough justice” it is nothing compared to the injustice suffered by asbestos victims.
We should be clear about where responsibility lies. The Financial Services Authority (now the FCA) described the long-standing problem of untraced insurance as “… a situation where insurers/policyholders are inappropriately subsidised by claimants ….” According to the Mesothelioma Bill Impact Assessment an estimated 6,000 mesothelioma sufferers have lost approximately £800 million in compensation due to untraced insurance. That is the extent to which mesothelioma sufferers have subsidised insurers. If one includes other asbestos victims we find that asbestos victims have subsidised insurers to the tune of £1 billion. In the face of such financial loss, not to speak of the loss of life, does fairness lie in mesothelioma sufferers continuing to subsidise insurers by 25% and other asbestos victims subsidising them by 100%?
Notwithstanding the Government's uncritical acceptance of the insurers' 3% GWP threshold, there is no certainty whatsoever that insurers will not pass on the cost to businesses at any level of GWP. The Government should not give way to threats of this sort, and certainly should not use taxpayers' money to subsidise insurers in the event of the levy exceeding the insurers' convenient 3% threshold. We have come to a pretty pass when dying asbestos victims are called on to absorb insurers' cost to protect business!
In the face of an obdurate, litigious and self-serving insurance industry, Lord Freud has negotiated a scheme at too great a cost to mesothelioma sufferers. Asbestos victims are entitled to 100% justice. We are asking everyone who is concerned about justice for asbestos victims to write to their MPs asking them to improve the Bill for mesothelioma sufferers and to give a commitment to include victims of other asbestos diseases in the scheme in the future.
November 22, 2013
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1 This article first appeared in the British Asbestos Newsletter (Issue 92, Autumn 2013). Tony Whitston is Chair of the Asbestos Victims' Support Groups Forum UK.
