DWP criticised for case handling after appeal fails in important test case
People who developed narcolepsy as a result of the 2009-10 pandemic swine flu vaccine can receive compensation of £120,000, following a ruling by the Upper Tribunal in a case brought against the Department for Work & Pensions (DWP) by Peter Todd, partner of Hodge Jones & Allen solicitors.
The decision, which was highly critical of the way in which the DWP conducted its case, puts the UK on a level playing field with some other European countries that have already paid compensation to people affected by the vaccination. It results from the failure of an appeal by the DWP against a First-Tier Tribunal judgment in September 2014 that a test case applicant was entitled to vaccine injury compensation.
The decision said that the conduct of the DWP’s Vaccine Damage Unit’s appeal before the First-Tier tribunal ‘was below the standard required’ and gave some guidance to prevent the problems recurring. It criticised the unacceptable standard of the DWP’s formal written submission to the Tribunal; the lack of summarising its 1,500-page evidence document; and not sending a representative to the hearing. On this last point, the judge said: “In my experience, more effort is put into and more assistance derived from DWP submissions in Jobseekers Allowance sanction cases involving a few hundred pounds.”
The test case was brought by Peter Todd on behalf of a child who has suffered from narcolepsy caused by the swine flu vaccine Pandemrix. The child’s parents have requested that their child remains anonymous. The vaccine was manufactured by the pharmaceutical company GSK and made widely available in the UK during the 2009-10 swine flu pandemic.
The DWP had admitted that the vaccine had caused the narcolepsy, but argued the applicant was not entitled to compensation because narcolepsy is not a ‘severe’ disablement. In September 2013, the UK government’s own study showed that vaccinated children were 14 times more likely to have narcolepsy than unvaccinated controls – a strong signal that the vaccine had caused the injury.
The DWP still, however, refused to make a compensation payment under the UK statutory vaccine injury payment as it did not deem narcolepsy as a ‘severe’ disability. Legislation 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.
Peter Todd explains: “When we appealed to the First Tier Tribunal in 2014, I argued that narcolepsy was a severe disability within the meaning of the Act and we produced convincing evidence to prove this. The Tribunal agreed with me on that issue and ordered the DWP to pay compensation. We were disappointed that the DWP chose to appeal against that decision. We considered the evidence was clear that narcolepsy was ‘severe’.
“The DWP argued the proper construction of the legislation required all future aspects of the disability to be ignored. So, for example, they said the fact the person might not ever be able to drive a car should be ignored as the injury was to a child, and children are not allowed to drive anyway. If the DWP had won their appeal, there would have been no realistic prospect of anyone in the UK with narcolepsy due to Pandemrix receiving compensation under the UK statutory scheme.
“Fortunately, the Upper Tribunal found the DWP’s arguments were totally devoid of merit. The Upper Tribunal was very critical of the way the DWP had handled the case. Now there is a real prospect that those adversely affected by the vaccine will receive some compensation.
“The £120,000 statutory award is not full compensation but will help those struggling as a result of what happened to some extent. This case is an important precedent for any future case involving vaccine injury and is the first time the issue has been considered by an appellate court, and will be binding on all future first-instance decisions.
“We are overjoyed to have won this round of this lengthy legal battle – the original application for compensation was submitted over three years ago. The DWP now has 21 days to decide whether to attempt a further appeal to the Court of Appeal.”
Peter is also acting for 75 clients in civil liability claims against GSK, under the Consumer Protection Act 1987 for injury and loss caused by the Pandemrix vaccine. He is currently in dialogue with GSK.
He comments: “From the evidence I have gathered, I consider the court will find the vaccine to be a defective product that entitles the claimants to full compensatory damages. GSK obtained an indemnity for claims from the UK government when they supplied the vaccine, as it had not been fully clinically trialled before it was put into use. I am hoping we can come to a fair resolution of these claims to ensure that those affected can face the future with dignity and security, despite the challenges they face.”
Peter Todd acted pro bono in successfully defending the appeal to the Upper Tribunal, as did George Peretz QC who was instructed as advocate for the hearing.
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Notes to editors:
1) 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. A number of the Claimants affected are willing to talk to the media so please contact Peter Todd via Black Letter communications for the contact details.
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 1,000 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.
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.
4) The full judgment of the Upper Tribunal is available on request.
5) 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”.
6) Hodge Jones and Allen was founded in 1977 in Camden and has over 220 staff based in Euston NW1. The firm’s team of specialists – Personal Injury, Medical Negligence, Industrial Diseases, Civil Liberties, Criminal Defence, Court of Protection, Dispute Resolution, Employment, Family Law, Military Claims, Serious Fraud and Social Housing.
7) Innovation in Law – an initiative designed to stimulate debate on access to justice issues and highlight innovative approaches by Hodge Jones & Allen www.hjainnovation.net/media/hja-innovation-in-law-report-2013.pdf
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