DWP’s Pandemrix vaccine injury appeal set to impact future compensation claims

One day hearing starts on 26th January at the Court of Appeal

On Thursday 26th January, the High Court will hear an appeal from the Department for Work & Pensions (DWP) against a test case decision forcing it to pay £120,000 vaccine injury compensation to a seven-year old boy who developed narcolepsy after having the Pandemrix swine flu vaccination.

If the DWP is successful, it will become virtually impossible for anyone to recover compensation under the Vaccine Damage Payment Act, says the family’s solicitor Peter Todd of Hodge Jones & Allen.

In what will be a first for the Court of Appeal, it will consider a case of vaccine injury compensation under the UK statutory compensation scheme, which was established in 1979 for the rare occasions when severe disablement is caused by vaccination. Its decision will be binding on all future assessments of disability brought under the Act.

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 it.

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 now 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 their appeal. As a result, the DWP agreed to and paid-out the £120,000 compensation to John. However, it decided to go 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.

John’s family’s solicitor Peter Todd of Hodge Jones & Allen said: “There are currently pending in the UK about 60-70 cases similar to John’s, where narcolepsy was caused by the 2009 pandemic swine flu vaccine, but where compensation was refused by the DWP. There are also a number of other cases from other vaccines.

“If the DWP succeeds with its appeal, I fear it will be virtually impossible for anyone to satisfy the DWP’s interpretation of “severe disability”, as the criteria will have been very significantly narrowed to exclude major aspects of disability from consideration. The Court of Appeal’s decision as to the legal framework will be binding on all such assessments.

“Regardless of the appeal’s outcome, John will not be forced to pay back the £120,000 compensation already awarded to him. However, the Court of Appeal’s decision will impact the many other people bringing claims against the government, not only for damages caused by Pandemrix vaccination, but also all other types of vaccine injury claims.

“John has experienced life-changing injuries as a result of having the Pandemrix vaccination, and there are many other people across the UK and Europe who have suffered the same. It is essential that they are given the financial help they need to lead as normal a life as possible.”

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 created the vaccine.

Ends

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

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 1,500 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.
• 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.
• Three of Peter Todd’s Pandemrix-narcolepsy clients were featured in the poignant one hour documentary film made by Ronachan Films, “The kids who can’t stay awake.”

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.
• 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.