Decision Summary Information

Back to Results | Search Again | Most Recent Decisions

Neutral Citation Number:	2015 UKUT 321 AAC
Reported Number:
File Number:	CV 5273 2014
Appellant:	Secretary of State for Work and Pensions
Respondent:	G (VDP)
Judge/Commissioner:	Judge E. Mitchell
Date Of Decision:	23/05/2015
Date Added:	11/06/2015
Main Category:	Vaccine damage payments
Main Subcategory:	Other
Secondary Category:
Secondary Subcategory:
Notes:	Reported as [2017] AACR 20. Vaccine damage payments – assessment of award – whether should take account of future prognosis for applicant John, who had been vaccinated against pandemic influenza A, was later diagnosed with severe narcolepsy and cataplexy, and thereafter his mother claimed compensation for him under the Vaccine Damage Payments Act 1979. The Secretary of State eventually accepted that John’s condition had been caused by the vaccination, but rejected the claim on the basis that John was not severely disabled, as required under section 1(4) of the 1979 Act. John’s mother appealed against that decision to the First-tier Tribunal (F tT), and submitted, among other things, a report by a specialist in paediatric neurodisability and sleep medicine whose opinion was that John was suffering from a lifetime neurological disease which would be very likely to affect his education and career. The F-tT upheld the appeal, accepting that the John was not severely disabled at the time of the assessment, but holding that significant improvement in his condition was unlikely and that it could take account of future problems that were reasonably foreseeable at the date of the assessment. The UT upheld that decision, accepting that the assessment was not a snapshot of the presenting disabilities and that the F-tT had been right to consider John’s future disablement. The Secretary of State appealed to Court of Appeal, arguing that the statutory scheme did not permit a determination which took account of future disablement and that the F-tT had improperly determined the case with reference to the Social Security (General Benefit) Regulations 1982 Schedule 2, as they could have no real bearing on the case given the special neurological characteristics of John’s condition. Held, dismissing the appeal, that: 1. the F-tT had been justified in looking at John’s prognosis in assessing whether the 60 per cent disablement threshold was crossed. If an individual was assessed as having a lifelong condition then that should be taken into account in assessing the extent of the disablement. Courts and tribunals were used to assessing loss on a balance of probabilities on present evidence with reference to future prospects and the matter was put beyond doubt by Schedule 6 to the 1992 Act paragraph 6(1) which clearly indicated that the period to be selected should be the period during which the claimant had suffered “and may be expected to continue to suffer” from the relevant loss of faculty (paragraphs 36 to 42); 2. the injuries described in Schedule 2 of the Regulations did not fit at all well with John’s injuries and loss of faculties but that did not mean that it was entirely to be ignored. On the contrary, section 103 of the 1992 Act required that the assessment had to be in accordance with Schedule 2. Having regard to Schedule 2 would not be a wholly empty exercise in a case of a non-physical injury, it provided an indicative benchmark for 100 per cent disablement and might also assist in generally assessing the impact of the disability. Read as a whole, the tribunal’s decision did not fall into the error of regarding Schedule 2 as some kind of strait-jacket, as opposed to guidance (paragraphs 44 to 45 and 47 to 48); 3. the F-tT’s assessment of John’s disabilities properly focused on his normal day to day functioning and the assessment for comparison purposes accorded with paragraph 1(a) and (c) of Schedule 6 to the 1992 Act (paragraph 52).
Decision(s) to Download:	[2017] AACR 20ws.doc