The Diffuse Mesothelioma Payment Scheme (DMPS) was introduced in 2014 to compensate those suffering with mesothelioma who were exposed to asbestos, either negligently or in breach of statutory duty. The scheme is essentially a fall back scheme for mesothelioma compensation, where sufferers and in some cases, their dependents, can still pursue a mesothelioma claim, even though no employer’s liability insurance can be located for their former, polluting employers.

The scheme is run on behalf of the DWP by Gallagher Bassett who are the scheme administrators and claims for mesothelioma compensation under the scheme are submitted through them. The role of the administrator is to assess whether the sufferer and/or their dependent are entitled to recover mesothelioma compensation under what is affectively, a scheme of “last resort”.

A successful application for mesothelioma compensation under the DMPS will result in a much greater sum of compensation being awarded when compared to other governmental schemes of last resort, such as the Pneumoconiosis Workers’ Compensation Act scheme of 1979.

It is important to note that mesothelioma compensation under the DMPS can only be claimed by those diagnosed with the terminal asbestos related cancer after 25th July 2012. Another key requirement is to show that the applicant was exposed to asbestos as a result of negligence or breach of statutory duty on the part of their “employer”.

Eligibility criteria for the scheme is detailed within the Mesothelioma Act 2014. Section 2 (1) (d) of the said Act states that a person can claim mesothelioma compensation under the scheme if :-

“The person is unable to bring an action for damages in respect of the disease against any employer of the person or any insurer with whom such employer maintained employer’s liability insurance (because they cannot be found or no longer exist or for any other reason)”.

The criteria paints what can only be described as a grey area in relation to who will be seen as an “employer” for the purposes of assessing eligibility for mesothelioma compensation under the DMPS. No formal definition of what amounts to an employer is contained within the Mesothelioma Act 2014, leaving this open to interpretation.

We have recently acted for two applicants under the DMPS, who were sadly diagnosed with mesothelioma. Whilst their tax records seemed to show that they were self-employed, with their former paymaster’s company name failing to be present on their HMRC work histories, the reality of the situation was very different.

Specifically, witness evidence was obtained from the applicants in support of their claims for mesothelioma compensation under the DMPS, which revealed that they worked set hours for the companies, were expected to remain on site, received instruction and guidance on how to carry out the work, were provided with tools to do the job, were paid on a weekly basis rather than job by job and in one instance, even received their pay on company embossed cheques at the end of the working week.

At Asbestos Justice, we argued that such evidence clearly showed that the applicants were not actually self-employed, despite the HMRC work records and that they should in fact be seen as employees in law. If this argument were accepted by the scheme administrator then the claims for mesothelioma compensation under the scheme would surely succeed.

However, our arguments were rejected. Gallagher Bassett argued that the companies were not present on the HMRC work histories and it was therefore clear that the applicants were not “employed” and could not pass the eligibility criteria under the Mesothelioma Act 2014.

We requested a review of the decision to refuse to award mesothelioma compensation to the applicants. This involved a different claims handler at the scheme administrator, considering the witness evidence submitted in support of the mesothelioma claims. Once again, the applications were rejected, with Gallagher Bassett repeating their reasoning.

The scheme administrator stated that:-

“As it has clearly been established that your client was self-employed during the negligent exposure and he was therefore not an “employee”, and there is no confirmation of employment with the company confirmed on the HMRC schedule, the application remains unsuccessful.”

The scheme administrator added that if the applications were still dissatisfied with the decision they had the right to appeal to the first Tier Tribunal, part of HM Courts and Tribunals Service (HMCTS). The appeals had to be submitted within one calendar month of the date of the review decision. Clearly the applicants had a fight on their hands to secure the essential mesothelioma compensation they required to assist them throughout the course of their period of suffering and we remained by their side.

We submitted appeals to the tribunal on behalf of both applicants, setting out our grounds of appeal which centred on highlighting a number of important employment law decisions which gave considerable credence to the applicants’ argument that they were in fact, “employees in the eyes of the law.”

We argued that the overwhelming evidence filed in support of the applications for mesothelioma compensation showed that the sufferers were “employed” by the companies under a contract of service and so would be “employees” within the meaning of the DMPS. Instead, we submitted that the evidence in the HMRC schedule wrongly determined the decision.

Under principles laid out in past case law, it was argued that under the “control test” the companies had control of the applicants work and the applicants worked exclusively for the companies for a number of unbroken years.

Turning to what is known as the “organisation test” we argued that the companies provided the work and gave instruction and orders to the applicants, which were carried out by them and their colleagues. The evidence showed that the applicants would require permission to go on holiday and were provided with tools, equipment and materials to use to do the job. Some of the materials included asbestos products which were cut and shaped, resulting in the applicants breathing in harmful amounts of asbestos dust over the years.

We highlighted a key question. Whose business was this? The reality was that the applicants were paid on a weekly basis by the companies throughout the course of a continuous period of employment in return for their labour. The applicants never shared in any profits and they were simply unable to employ another person to carry out the work they were expected to do for the companies. Both applicants confirmed in their evidence in support of the mesothelioma claims under the DMPS that they never felt free to work for other companies either.

Another important consideration is that of “context”, which is clearly relevant in answering the question of whether the applicants would be seen as “employees” or not. One key case highlighted was Airfix Footwear limited v Cope [1978] IRLR396 at which an employment tribunal held that it may regard a worker as an employee for the purposes of unfair dismissal or redundancy, despite the fact that Inspector of Taxes held him to be self-employed for tax purposes.

Other important cases were cited within our grounds for appeal, submitted on behalf of the applicants in an attempt to secure their much needed, mesothelioma compensation under the scheme.

Thankfully, after the appeals were submitted, the scheme administrator backed down from their earlier position and agreed to pay substantial awards of mesothelioma compensation to the applicants under their now, successful applications.

These mesothelioma claims show that the scheme administrator has to consider the evidence on “employment” as a whole and not merely centre their decision upon the absence of a company name on an applicant’s HMRC work history.

We recovered hundreds of thousands of mesothelioma compensation for our clients in these two examples alone, which at one stage, appeared unlikely. A degree of justice secured, against the odds once more.

If you require assistance in pursuing a claim for mesothelioma compensation under the Diffuse Mesothelioma Payments Scheme or against your former employer or their insurers, or believe you have any other valid asbestos claim please contact us today on our freephone number 0800 038 6767. Alternatively, head over to the ‘Contact Us’ page, complete the form and we will be in touch.

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