Government agrees to rethink vaccination compensation age-bar after admitting equality rule breach
Posted on: 19th March 2018
The government is to reconsider its decision to exclude from compensation adults who are disabled following an adverse reaction to a seasonal flu vaccination, following proceedings issued by London law firm Hodge Jones & Allen.
The Department of Health admitted that it breached the Public Sector Equality Duty when deciding to exclude adults from the scope of the scheme under the Vaccine Damages Payment Act 1979.
The purpose of the statutory compensation scheme is to provide those who have been severely disabled as a result of vaccination with a fixed compensation payment, currently £120,000.
Ian Cook received a vaccination for seasonal influenza at his GP surgery in December 2013, when he was aged 64.
He became very unwell around a fortnight after having the injection and has since been diagnosed as suffering from chronic inflammatory demyelinating polyneuropathy (CIDP), a condition where the immune system is triggered to dysfunction.
Mr Cook, who lives in Kent, is now only partially mobile. His limbs and spinal cord remain significantly compromised and he is never going to fully recover. He cannot walk more than a short distance, his arms are very weak and, as such, he is unable to do any significant lifting. Mr Cook’s memory has been affected and he has also suffered psychologically.
Scientific evidence links the vaccine to causing his CIDP and indeed Mr Cook’s own NHS treating consultant believes this was the cause.
The Vaccine Damage Payment Scheme currently covers seasonal flu vaccines administered from July 2013 but only if claimants were under 18 years of age at the time.
Peter Todd, a specialist personal injury partner at Hodge Jones & Allen, challenged the age limitation as unlawful. He argued that it was irrational and amounted to unlawful, unjustified discrimination on the basis of age and so also violated the European Convention on Human Rights.
The government responded to pre-action correspondence by justifying the exclusion, but once proceedings were issued and served, it conceded the claim.
The government has now admitted that there was a breach of the Public Sector Equality Duty when the decision was made to exclude adults from the scope of compensation.
It said: “This concession is made solely on the basis of an admission that the minister at that time was not fully advised as to her ability to make a decision on whether or not to allow over 18s to be brought within the ambit of the scheme.” The minister will now re-take that decision, after receiving proper advice.
Peter Todd says: “The purpose of the Vaccine Damage Payment Act 1979 is to support those vaccinated by making a relatively modest compensation payment for a ‘one in a million’ severe adverse reaction, causing permanent disablement.
“Given the extreme rarity of such an event, it was difficult to understand the justification for excluding adults from coverage of the compensation scheme. It is welcome that the Secretary of State has agreed to review the exclusion of adults, and I am confident he will decide to change the law to cover adults in the scheme in future, prompted by Mr Cook’s compelling legal challenge.”
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Notes for Editors
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 managing partner is Patrick Allen, recently awarded a lifetime achievement award by Solicitors Journal.
- For 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.
- 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.