4 December 2013Print This Post

New HMRC policy will only stifle access to justice for asbestos cancer victims

Landman: support for sufferers looks like it will be in short supply

Around 4,000 people die each year in the UK due to asbestos related diseases, a truly horrendous ordeal for them and their families. Unfortunately things have just got even worse. A new HMRC policy has created an unnecessary legal hoop through which relatives of victims will now be required to jump when seeking justice for their deceased loved ones.

The policy was established in November and has been justified by HMRC as necessary to uphold the provisions of the Data Protection Act.

The policy

HMRC states in the policy that it will no longer release the employment history of a deceased person to their legal representatives, until a court application has been received.

When someone is killed by mesothelioma, their solicitor must provide evidence of the victim’s employment locations, how long they worked at each and the degree to which they may have been exposed to asbestos fibres.

This information-gathering process has always been a challenge. Not only does it involve collecting the appropriate employment history, but also the relevant data for each building in which the victim worked. This all requires very thorough investigation.

For example, think of a construction worker who moves from project to project. If he passed away as a result of mesothelioma, his family’s solicitor would need to contact HMRC and research every job he may have worked on. Rapid, unhindered access to these records is vital.

Now, before that process can even begin, a court application that has the potential to be an equally lengthy affair, must be made.

Why the change?

HMRC claims that change is required “because the records are stored in accordance with the Data Protection Act”. However, it has been argued by some that this is simply incorrect and that rights to privacy ‘die’ with the individual, just like our rights to sue for defamation. Even if this is not the case, surely access to an individual’s employment history should be exclusive to the deceased’s loved ones? And they should in turn be free to share the records with their legal representative.

Blocking this immediate access will only stall the claims process and therefore increase the cost of legal fees and expenses.

Further concern for claimants

In addition, the entire claims process for asbestos exposure compensation is set to become even more difficult, following the introduction of a new Mesothelioma Bill.

Under this piece of legislation, only those who have been diagnosed since 25 July 2012 will be able to file a claim.

Also, those who can’t find a responsible insurer from which to claim will be compensated at a discounted rate – 75% of what the claimant should be entitled to – funded by a levy on active employers’ liability insurers.

The only positive for claimants to take from this is that at least some sort of justice will be available even where a definitive guilty party cannot be traced. Still, vice-chairman of the Association of Personal injury Lawyers, John Spencer, has his concerns about the delay of the Mesothelioma Bill’s implementation.

He says: “It is of paramount importance that the bill is introduced as early as possible and implemented speedily in order for inflicted victims to be given the compensation they urgently need.

“The sad reality is that any delay to implementing the legislation might mean that many of those applying to the fund might die before they receive any award.”

Asbestos in UK schools

John is also the chair of my law firm, Spencers Solicitors, and in March, we joined the ongoing campaign to remove asbestos from British schools. It is clear from the available data that asbestos in our schools remains a serious issue. The management and removal of asbestos in schools has been poor at best and non-existent in many, many cases.

Rather than push this issue up their agenda and allocate greater resources to tackling it effectively, it has been revealed more recently by The Guardian that the government’s funding for asbestos removal may even be cut. It said: “Ministers have considered scaling back the Department for Education’s work addressing the issue of asbestos in schools because of budget cuts.”

The mere suggestion of cuts is shocking, especially as we continue to read horror stories of asbestos residing in schools. Within the last couple of weeks, a Birmingham academy was hit with a £10,000 court demand and a £20,000 decontamination bill, after contractors disturbed life-threatening asbestos fibres during the school holiday.

Conclusion

Based on current data, the mesothelioma death rate is expected to peak in 2016 and reduce thereafter. However, we will only see the longer-term eradication (the deadly effects of exposure can take up to 50 years to manifest) of asbestos-related cancer in the UK, on the introduction of an extensive removal operation.

Until then sufferers deserve the full support of all concerned; but the HMRC policy, the delayed Mesothelioma Bill and the suggested cuts to funding only leave us with the feeling that such support is likely to be in short supply.

How can this be right? Have your say in the comments.

Robert Landman is CEO of Spencers Solicitors and a qualified accountant with over eight years experience in the legal industry. Robert provides effective leadership of the business, overseeing and determining business strategy whilst ensuring optimisation of day-to-day operations