DWP pays out in ‘swine flu’ test case but still likely to go to Court of Appeal
The Department for Work and Pensions (DWP) has been refused permission to appeal against an order to compensate a boy that developed narcolepsy as a result of taking the swine flu vaccination, Pandemrix, despite already paying out the compensation.
The Government department has now been told by the Upper Tribunal that it cannot appeal its earlier decision of June 2015 in one child’s test case, where it was ordered to pay £120,000.
Peter Todd, partner at law firm Hodge Jones & Allen, brought the action against the DWP but says the Government department is now likely to seek permission to appeal at the Court of Appeal (CoA). He says: “It’s quite extraordinary behaviour from the DWP. Despite already paying out in one test case and one posthumous claim, all indications from the DWP show that they are still in denial about the need to compensate others and ignoring the example of other European countries.”
The Vaccine Damage Payments Act specifies that a vaccine damage payment of £120,000 should be made if the applicant suffers ‘severe’ and ‘permanent’ disability as a result of certain vaccines. The DWP continues to argue that those children and adults who developed narcolepsy as a result of having the Pandemrix vaccination during 2009-10, do not have a ‘severe’ disability.
Peter explains: “If the DWP goes to the Court of Appeal and is successful in its appeal, this would provide a binding interpretation of the Act, which courts would have to apply. This would affect all future claims in relation to any vaccine claim and would make it virtually impossible for anyone to be compensated for damages.
“This means that potentially any future effects of the disability would be ignored, making it almost impossible to show the disablement was “severe”. This would affect all vaccine claims making it virtually impossible for anyone to be compensated. Meanwhile, uncompensated my clients are struggling with the impact of the disability. ”
Peter adds: “Other European countries such as Sweden, Finland, Norway, Iceland and France, have managed to compensate those with narcolepsy, yet the UK government is still fighting claims. That is not an appropriate response to a very rare and serious event and could undermine confidence in vaccinations.”
Peter is also acting for 84 clients in civil liability claims against Pandemrix’s manufacturer GSK, under the Consumer Protection Act for injury and loss caused by the vaccine. Liability has been denied, but the UK Government has stated that they are working to resolve the claims. Many of these claimants will also be affected by the DWP decision.
A long-awaited UK epidemiological study regarding adults and the association between Pandemrix and narcolepsy in adults is expected to be published later this year.
The First Tier Tribunal ordered the DWP to make the payment to the child in the test case in September 2014 but allowed the DWP permission to appeal to the Upper Tribunal, the result of which was handed down in June 2015.
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Notes for Editors
- Narcolepsy is a very rare and incurable autoimmune sleep disorder caused by the destruction of the part of the brain that produces hypocretin, a peptide that regulates sleep. The absence of hypocretin 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.
- 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 1,000 people across Europe are thought to be affected, of which about 80 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.
- 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.
- Three of Peter Todd’s Pandemrix-narcolepsy clients were featured in the poignant 1 hour documentary film made by Ronachan Films which was recently broadcast on Channel 4 “The kids who can’t stay awake.”
- Hodge Jones & Allen LLP was founded in 1977 in Camden and has 200 staff based in Euston NW1. The firm practices personal injury, clinical negligence, civil liberties, family law, wills and probate, housing, dispute resolution, criminal defence and serious fraud.