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DWP loses as Court of Appeal rules on Pandemrix (swine flu) vaccine injury payments

Posted on: 9th February 2017

The Court of Appeal has today ruled against the Department for Work & Pensions (DWP) in an appeal it brought against paying £120,000 vaccine injury compensation to a seven-year old boy who developed narcolepsy after having the Pandemrix swine flu vaccination in 2009.

The judgment was handed down following a five-year legal battle between the DWP and the family of an anonymous child known as ‘John’, following his diagnosis of narcolepsy and an application in 2012 to the government’s compensation scheme under the Vaccine Damage Payment Act. John is now 14-years-old.

In this case, the government accepted that John’s narcolepsy was caused by the vaccine, the question was whether his disability was ‘severe’, such that he should be entitled to statutory compensation.

The family’s solicitor, Peter Todd of Hodge Jones & Allen, says: “This important decision brings clarity to anyone who brings claims under the Vaccine Damage Payment Act in future. It will in particular bring welcome relief to those who developed narcolepsy as a result of taking the swine flu vaccination and who have been awaiting payment from the DWP scheme, but also has implications for anyone affected by other vaccines covered by the scheme.”

The judgment means that the DWP now has to take into account the impact that disability has on a person’s entire life, and not just the impact it has on the individual at the time their claim is made under the scheme.

Peter says that the decision will be particularly welcomed by those seeking compensation under the Act: “Until today’s judgment, the DWP was pushing the court to only recognise the impact of the disability at the precise time the claim was assessed, and not take into account any impact it would have in future. In the case of my client ‘John’, the DWP wanted the courts only to consider the impact that the vaccine injury had on him as a seven-year-old, and not the impact it would have on him for the rest of his life and thereby to deny him any compensation.

“Sadly, those who developed narcolepsy as a result of the swine flu vaccination have had their lives changed forever. The condition will affect many aspects of their lives including working, driving, personal and family relationships – the very things most of us take for granted.”

The judgment is the first time that the UK Court of Appeal has considered a case of vaccine injury compensation under the UK statutory compensation scheme. The scheme was established in 1979 for the rare occasions when severe disablement is caused by vaccination. The decision is now binding on all future assessments of disability brought under the Act.

Peter Todd continues: “In the UK, there are about 100 people with narcolepsy caused by the 2009-10 pandemic swine flu vaccine. There are on average about a further 100 applications a year for compensation under the scheme relating to other vaccines.

“Today’s judgment brings a welcome relief to the many people affected by the DWP’s continued refusal of applications for compensation.”

Peter currently acts for 88 claimants, many of them children, who have developed narcolepsy after receiving the Pandemrix swine flu vaccine in 2009/10. He is also acting in a civil case against pharmaceutical company GSK, which manufactured the vaccine.

Ends

For further information, please contact Clare Rice on 020 3567 1208 or clare.rice@blacklettercommunications.co.uk.

Notes for Editors

History of John’s case:

  • The anonymous child, known as “John” for the proceedings, is now 14-years-old and was vaccinated with Pandemrix against swine flu (H1N1) in December 2009. Within a few months, he developed symptoms of narcolepsy and was later formally diagnosed with the condition.
  • In January 2012, John applied to the DWP for compensation under the statutory scheme. The DWP accepted that he had been properly diagnosed with narcolepsy and that on the balance of probability, his narcolepsy had been caused by the vaccination. However, the DWP said this was not a “severe” disability and compensation was denied.
  • John subsequently appealed the decision to the First Tier Tribunal, which in September 2014 ordered the DWP to pay out as it found John’s narcolepsy to be severe. The DWP refused to pay-out and appealed to the Upper Tribunal, arguing that only problems John had at that time could be taken into account, and not the future impact of his condition.
  • In June 2015, the Upper Tribunal rejected the DWP’s submissions and dismissed its appeal, prompting the DWP to make the £120,000 compensation to John. However, it then went to the Court of Appeal, maintaining that the proper approach to assessment of disability is to ignore any aspects of the disability that may be experienced in the future.
  1. Narcolepsy is a very rare and incurable autoimmune sleep disorder caused by the disruption of the part of the brain that uses hypocretin, a peptide that regulates sleep. The dysregulation of this system can lead to a range of serious symptoms including excessive daytime sleepiness, fragmented sleep, cataplexy (sudden collapses), frightening hallucinations, “micro-sleeps” during everyday activities, weight gain and sleep paralysis.
  2. The 2009-10 pandemic vaccine has been found to have caused an epidemic of narcolepsy in the UK and in other European countries in which it was used. About 1,750 people across Europe are thought to be affected, of which about 100 have so far been identified in the UK. Compensation for narcolepsy caused by Pandemrix has been paid in many other European countries, including Sweden, Norway, Finland, Iceland, France and Denmark, but so far UK residents have been denied compensation both by the UK government and the manufacturer.
  3. Matt O’Neill, chair of the registered charity Narcolepsy UK, was called as a witness by Peter Todd in the First Tier Tribunal proceedings and is happy to provide media comment on narcolepsy and this case on 07825 354355.

Hodge Jones and Allen

  • Hodge Jones and Allen is one of the UK’s most progressive law firms, renowned for doing things differently and fighting injustice. Its senior partner is Patrick Allen and managing partner is Vidisha Joshi.
  • For almost 40 years’ the firm has been at the centre of many of the UK’s landmark legal cases that have changed the lives and rights of many people.
  • The firm’s team of specialists have been operating across: Personal Injury, Medical Negligence, Industrial Disease, Civil Liberties, Criminal Defence, Court of Protection, Dispute Resolution, Employment, Family Law, Military Claims, Serious Fraud, Social Housing, Wills & Probate and Property Disputes.
  • Co-founder Patrick Allen is still at the helm of the firm he co-founded in 1977.
  • In 2016 the firm launched Hearing their voices – a campaign to raise awareness and build conversations around the issues and the injustices we might all face.