Memorandum submitted by

Asbestos Victims Support Groups' Forum UK[1] (DM 13)

 

 

Introduction

This submission is limited to decision making and appeals on Industrial Injuries Disablement Benefit for people with asbestos-related diseases.

 

 

Summary

Decision Making

1. Decision making is generally effective for occupational prescription, but some IIDB centres decisions are inconsistent within the centre and across centres. Decision making is far less effective for medical prescription.

2. A lack of training results in some inconsistent occupational prescription decision making and unacceptable deference to Medical Advisers' advice on medical prescription, resulting, in some cases, in an abdication of Decision Makers' responsibility to make decisions.

3. There is no transparency in criteria for assessment by Medical Advisers. The criteria should be freely available and the criteria should be incorporated into Decision Makers' training.

4. The review process should be made clearer to claimants

5. The review process is often rendered useless in cases of medical questions due to lack of training.

6. The DWP fail to monitor medical services and there is no transparency in the outcome of complaints about medical services.

7. The fast-track system for fatal prescribed diseases is undermined by slow responses from other benefits sections.

 

Appeals

Appeals generally work well for asbestos disease appellants

Time frame is too long.

Failure to respond to unavailability dates leads to cancellation and delay

 

 

Decision Making

A Effectiveness.

8. Decision making is generally effective for occupational prescription, but some IIDB centres' decisions are inconsistent within the centre and across centres. Decision making is far less effective for medical prescription.

 

B Numbers of Decision Makers (DMs) and their training.

1. Decisions on employment prescription in different job centres are sometimes inconsistent. They are also sometimes inconsistent within those centres. The inconsistency within centres suggests lack of training for some staff or a need for further training. Adverse decisions, which are clearly inconsistent with decisions in identical cases, are usually corrected, but the time and cost and distress to claimants could easily be avoided.

 

At Appendix A we have provided case studies to amplify our concerns.

 

2. DMs are, however, prepared to accept further evidence of occupational prescription, but time and money could be saved by a more consistent approach.

 

3. The reduction of IIDB centres offers the opportunity for more consistent decision making and this is facilitated by meetings between DWP staff and claimants' representative groups. Meetings between Forum members and DWP staff have, we think, been instrumental in reducing inconsistencies. We think such meetings should continue.

 

4. Medical prescription is far more problematic. DMs appear to be unfamiliar with medical terminology. DMs are reluctant to question Medical Advisers' decisions because they are not confident, or knowledgeable, about medical prescription. For example, in one case, the Medical Adviser rejected a claim for diffuse pleural thickening (PD D9) because the costophrenic angles were not obliterated bilaterally. In this case the right costophrenic angle was obliterated. Despite the fact that prescription is for unilateral and bilateral obliteration of the costphrenic angle(s), the DM accepted the Medical Adviser's advice without question. The reason for the rejection lies in an established culture of deference to Medical Advisers. This deference is partly attributable to a lack of t raining.

 

5. Assessments of levels of disablement by Medical Advisers are generally very low and we think they are often not consistent with recommended assessment criteria in the Medical Adviser's training manual. We think that DMs should have training on the criteria for medical assessments.

 

6. We think that there should be transparency in decision making and that the criteria for medical prescription, as laid out in the training manual for Medical Advisers, should be freely and easily available to claimants, their representatives and support groups, and, most importantly, to DMs.

 

C Clarity of decision making process

1. It is not made clear to claimants that when an appeal is lodged the decision is always looked at again, i.e. reviewed, prior to the appeal being sent to the appeal tribunal.

 

D Effectiveness of the review stage of decision making

1. As far as medical prescription is concerned, the review process is often undermined because DMs are reluctant to assert their right and responsibility to make decisions; they defer to the Medical Advisers, who effectively make all medical decisions.

 

2. Review of occupational prescription in certain IIDB centres where initial decisions are clearly perverse are not corrected at review.

Case Study at Appendix A.

 

E Addressing official error

1. We believe that errors made by Medical Advisers are not addressed because there is lack of DM training, as evidenced above, and because the DWP does not properly monitor Atos Origin, the company which provides medical services to the department.

 

2. We would like to cite an example of the difficulties in changing and improving the practice of Atos Healthcare. A problem emerged following the change to the medical prescription for diffuse pleural thickening:"Unilateral or bilateral pleural thickening with obliteration of the costophrenic angle". Consultants and radiologists use the terms 'blunting' of the costophrenic angle and 'obliteration' of the costophrenic angle interchangeably. Unfortunately, many Medical Advisers rejected claims wherever reference was made to 'blunting' in radiology reports and/or hospital letters, irrespective of the evidence on X ray of 'obliteration'. In some cases, Medical Advisers were rejecting claims simply because radiology reports did not mention the costophrenic angle. As a result we appealed several decisions which were changed on review when Medical Advisers were required to look at X rays and when consultants wrote further letters.

 

3. Locally, we wrote to consultants and radiologists asking them to use the term 'obliteration' where appropriate. We also asked the DWP policy section to review cases we were concerned about which showed a generalised problem, and to raise this matter formally with Atos Healthcare. The response we received from the DWP included the following:

".....As I cannot be seen to be interfering in the decision making process I will only be able to use the date (which I will anonymise) as a training tool for Medical Services if there appears to be any issues arising from their advice. For the same reason, I will not be able to feedback the results to you."

We think this response to be totally inadequate. Where concerns are raised about the performance of Medical Advisers we should be able to expect a review of practice in light of data and we should also expect feedback on any outcomes.

 

4. Official error in respect of medical services will not be adequately addressed while DMs are poorly trained in medical prescription and where responses to concerns about Medical Advisors practice are not acted upon in a transparent manner.

 

5. It is now our policy to ask the claimant's consultant for advice in every case where a claim for PD D9 is rejected.

F Operation of the decision making process for different benefits

1. We would like to comment on the operation between different benefits. The DWP has an effective fast-track system for mesothelioma, a fatal cancer with very poor life expectancy. The IIDB centres are extremely effective in assessing mesothelioma claims. However, in cases where the claimant is also in receipt of means tested benefits payment is delayed because there is no reciprocal fast-track system for providing information on these payments to the IIDB centre.

 

2. We should point out that IIDB is paid for loss of faculty leading to disablement, i.e for loss of health or loss of life, not as income replacement so IIDB should not adversely affect means tested in any case. But it does, and delays are caused in reconciling IIDB and means tested benefits.

 

G Effectiveness of DWP's Decision making Standards Committee.

1. We have never heard of this committee.

 

H Ruling of ECJ October 2007

1. We have not come across cases so cannot respond

 

APPEALS

A Claimant's perspective

1. Generally appeals work well for appellants suffering asbestos diseases. However, there is evidence of lack of knowledge about prescription in the appeals service and IIDB centres. Please see Appendix A case study.

 

B Impact of AJTC

1. We have seen no change.

 

C Timeframe

1. The time frame is too long as on average it takes 6 months for an appeal to be heard. One main reason for this is because the service has to wait until there are sufficient cases to be heard to justify the presence of a chest physician.

 

2. Further delay is caused because sometimes the appeals service fails to take account of dates provided where the appellant or their representative are unable to appear, resulting in a lengthy adjournment.

 

Appendix A

 

1. Derbyshire Asbestos Support Team deals mainly with Sutton-in-Ashfield IIDB Centre. The decision making is inconsistent and unpredictable. Some advisors are very helpful and some decisions have been made quickly and efficiently.

2. Insistence on provision of more information

In many cases victims diagnosed with pleural thickening or asbestosis are asked to provide additional evidence confirming their employment and working conditions, or in fact turned down because they did not work ".in a job that the law says is likely to cause the disease". Employment prescription for these diseases is:

Any occupation involving-

(a) the working or handling of asbestos or any admixture of asbestos;

(b) the manufacture or repair of asbestos textiles or other articles

containing or composed of asbestos;

(c) the cleaning of any machinery or plant used in any foregoing operations

and of any chambers, fixtures and appliances for the collection of

asbestos dust;

(d) substantial exposure to the dust arising from any of the foregoing

operations.

 

3. Case Study 1

Mr F has been diagnosed with pleural thickening; he works as a joiner and shopfitter and has done so all of his working life. He remembers being exposed to asbestos in particular at two building firms during the late 1950s and early 1960s. He has been sent a letter from DWP (Sutton) asking him to provide full details of names and addresses of any work colleagues who can confirm his employment as the firms are no longer in existence. He has also been asked to provide supporting evidence concerning his work conditions eg. Training records/contacts of employment and risk assessments. Mr F has worked around the country and moved house, he is not contact with anyone he previously worked with or kept any documentation from his work in the 1960s.

 

4. Case Study 2

Mr D was diagnosed with Asbestosis. He worked at Darlington insulation for 1 year as a lagger. He was sent an identical letter (described above). DAST sent a letter explaining that Darlington Insulation was well known for its activities and exposing employees to asbestos and provided information of this. This was accepted but surely this was unnecessary. Mr D was later awarded 60% for asbestosis.

 

5. Review Stage

 

Mr W has been diagnosed with Mesothelioma. He was turned down because the DWP state that he was not an employed earner. The Inland Revenue Schedule proves that he was in fact an employed earner and this was provided as additional evidence. The DWP have refused to accept it. We must proceed to tribunal with a victim diagnosed with terminal cancer, when payment should be automatic.

 

6. Appeal

 

In the majority of cases appeals work correctly. However, delays can be problematic and knowledge of the prescription is essential.

Case Study 3

Mrs P's husband had died of lung cancer; there was also evidence of asbestosis. Mrs P had already claimed Industrial Injuries before approaching DAST. Her claim for benefit had been turned down for asbestosis after the review of medical evidence (no mention was made of lung cancer). The tribunal accepted asbestosis but would not consider lung cancer, as they would need to refer it back to DWP to check prescription and ensure he had worked the required number of years. This was unnecessary as they had accepted a diagnosis of asbestosis. Before agreeing with the evidence on the death certificate and post mortem that Mr P had died of lung cancer the DWP still referred to medical services. Mrs P was very upset at the delay caused before and after the tribunal.

 

 

7. Hampshire Asbestos Support & Awareness Group commonly deals with Hartlepool and Castleford IIDB Centres. Decision making is sometimes inconsistent and upredictable. In cases dealt with by other advisors decisions are made efficiently and consistently.

 

8. Hartlepool IIDB Centre

Extra evidence is sometimes requested for asbestosis and pleural thickening claimants. For example a questionnaire may be sent out asking for information that is already on the original IIDB form (BI100PD), e.g. name of employer, occupation, period of work and description of duties. All of this information has been clearly stated in the original form, therefore causing extra, unnecessary work and delay in processing. The questionnaires that are sent are not always in the same format and sometimes not sent at all. Therefore there is a huge inconsistency in the processing of claims.

 

9. Castleford

Castleford also send out questionnaires, but in addition they ask for names of work colleagues and statement of exposure. It is incredibly difficult for someone the there 70's and 80's to provide this information. Again these questionnaires are not always sent to clients with PD1 and PD9. This causes unnecessary distress to some clients.

 

September 2009

 

 



[1] Asbestos Support Groups' Forum UK

Asbestos Action Tayside; Asbestos Support West Midlands; Barrow Asbestos Related Disease Support; Bradford Asbestos Victim Support Group; Cheshire Asbestos Victims Support Group; Derbyshire Asbestos Support Team; Greater Manchester Asbestos Victims Support Group; Hampshire Asbestos Support & Awareness Group; Merseyside Asbestos Victims Support Group; North-West Wales Asbestos Victims Support Group; North East Asbestos Support & Awareness Group, Ridings Asbestos Support & Awareness Group, Sheffield And Rotherham Asbestos Group