Important ruling in Pandemrix case

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27 September 2015

The link between an upsurge in the number of cases of narcolepsy and the Pandemrix swine flu vaccine has been acknowledged by the government, and opened the door to claims for compensation under the Vaccine Damage Payments Scheme. That scheme is a statutory regime under which anyone found to have suffered a severe disability as a result of certain vaccines is entitled to an award of £120,000.

Solicitors acting for many people who developed narcolepsy after receiving Pandemrix brought a test case in the name of one victim over three years ago. The DWP’s Vaccine Damage Unit, which administers the compensation scheme, originally refused the application on the grounds that there was no proof of causation, but that decision was reversed in September 2013 by the Secretary of State. However, the DWP still refused to make an award, on the grounds that the disability was not “severe” and therefore insufficient to qualify for compensation. That decision was appealed to what is called the First Tier Tribunal, which decided in 2014 that the test case applicant’s narcolepsy did indeed constitute a severe disability, and that therefore they should be awarded compensation.

Unfortunately, the DWP chose to appeal against that decision, and the case proceeded to the Upper Tribunal. In a ruling issued in early June 2015, the Upper Tribunal has now rejected the DWP’s appeal.

Not only did the Upper Tribunal find against the DWP, it was also very critical of the manner in which the DWP had conducted the matter. In particular, the judgement criticised the unacceptable standard of the DWP’s formal written submissions, its failure to provide a summary of its evidence (amounting to 1,500 pages), and its failure to even send a representative to the hearing.

The rejection of the DWP's appeal means that there is now a real prospect of compensation for those who developed narcolepsy as a result of having the Pandemrix vaccination. Whilst the statutory award of £120,000 will never fully compensate for the impact of narcolepsy, it will help to some extent those struggling as a result of what happened to them. Equally importantly, the ruling recognises the seriousness of narcolepsy and the magnitude of its effect on those afflicted by it. This is potentially of significance for all sufferers from narcolepsy, not just the victims of Pandemrix.

However, the matter may not yet be over. The DWP has three months in which to launch a further appeal, this time to the Court of Appeal. At the time of writing, it is not yet known whether this will be done. We understand that the DWP is presently taking Counsel’s opinion and consulting the Secretary of State, and we will keep you informed.

In the meantime, many of those who contracted narcolepsy from Pandemrix are pursuing civil claims against GSK, the manufacturer of Pandemrix. If successful, those claims could lead to the award of full compensatory damages, though it should be noted that GSK was indemnified by the UK government when it supplied the vaccine, as the product had not been fully tested at the time it was used. This means that ultimately compensation will be paid out of the public purse, and not by GSK.

Matt O'Neill, Chair of Narcolepsy UK, was called as a witness in the proceedings before the First Tier Tribunal. Narcolepsy UK is committed to supporting all people with narcolepsy, irrespective of how they contracted the condition.

We are grateful to Peter Todd, of Hodge Jones & Allen solicitors, who has conducted the test case on a pro bono (unpaid) basis, and to George Peretz QC, who was instructed as advocate for the hearing before the Upper Tribunal, also pro bono.