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The Upper Tribunal has rejected an appeal by the Secretary of State for Work and Pensions against an award of compensation to a child who suffers from narcolepsy with cataplexy as the result of vaccination against swine flu.
Please click to view the Decision of the Upper Tribunal
The plight of a number of children who have suffered from narcolepsy as the result of vaccination against swine (or H1N1) flu has received considerable publicity, and was the subject of a Channel 4 documentary earlier this year (“The kids who can’t stay awake”, broadcast on 10 March). As a result of irresistible, unpredictable and frequent sleep attacks, which are likely to last for the rest of their lives, the children affected suffer enormous disadvantage in their social and school lives: and, when they grow older, they will suffer even more disadvantage as they will find it very difficult to do examinations, drive, maintain relationships, or operate in many jobs.
The Department of Work and Pensions has accepted that the vaccination caused the narcolepsy experienced by these children. However, in response to claims for compensation under the Vaccine Damage Payments Act 1979 (which provides for an award of £120,000 to anyone suffering more than 60% disablement as a result of a vaccine), the DWP argued that the disablement caused was less than 60%. It argued in particular that the 1979 Act meant that it was impermissible, in assessing the degree of disablement caused, to look at effects of the disablement in future: according to the DWP, it was wrong to look at the effects of narcolepsy on children’s lives as they grew older (e.g. making it impossible for them to sit public examinations or to drive).
In August 2014 the First-tier Tribunal (FTT) heard an appeal against the DWP’s decision rejecting a claim under the 1979 Act. It allowed the appeal. The DWP then appealed to the Upper Tribunal.
The Upper Tribunal agreed with the claimant and upheld the FTT’s decision. In a careful analysis of the relevant – and rather complex – provisions, it accepted the claimant’s argument that the assessment of disablement under the relevant legislation required an assessment of its impact over the whole period that the disablement was likely to last – for a lifetime, in this case. Further, it accepted the claimant’s submission that the FTT was entitled to look at a scale for assessment of degree of disablement used for industrial injuries, noting that the DWP itself had done so in its written case to the FTT: even though industrial injuries such as loss of limbs were very different from narcolepsy, the comparison could bear some useful fruit.
The Upper Tribunal’s judgment is likely to set a precedent for other children suffering from narcolepsy as a result of H1N1 vaccination, by removing some the main arguments used by the DWP in rejecting their claims under the 1979 Act.
George Peretz QC was instructed by Hodge Jones & Allen, also acting pro bono: their press release with further information about the case is here.
This case has received various press coverage, including The Guardian.