Intended for healthcare professionals

Rapid response to:

Feature Communicable Disease

UK doctors re-examine case for mandatory vaccination

BMJ 2017; 358 doi: (Published 18 July 2017) Cite this as: BMJ 2017;358:j3414

Rapid Response:

Re: UK doctors re-examine case for mandatory vaccination

I have previously covered the poor performance by the Vaccine Damage Payment Scheme in addressing vaccine damage and it is interesting to note that once again the provisions in the Vaccine Damage Payment Act 1979, have been the subject of a recent legal challenge. In March 2018 it was reported that the Government admitted an “equality rule breach” in not allowing individuals over the age of twenty one to apply for a payment under the Vaccine Damage Payment Scheme (VDPS) in respect of the seasonal flu vaccine.

An article by Hodge Jones and Allen Solicitors advises that……….

“The government has now admitted that there was a breach of the Public Sector Equality Duty when the decision was made to exclude adults from the scope of compensation.”(1)

The case in question involved a sixty four year old gentleman who in 2013 suffered adverse events following administration of a seasonal flu vaccine. The solicitors report how the “the government responded to pre-action correspondence by justifying the exclusion, but once proceedings were issued and served, it conceded the claim”.

Only a year before, the Government lost their appeal at the Court of Appeal to have the future burdens of the vaccine damaged individual excluded from their overall assessment as to the percentage of disablement suffered. A 60% percentage of disability is required in order to qualify for a payment and a failure to include the future burdens of the applicant may have resulted in any number of refusals down through the years.

The Vaccine Damage Payment Act 1979 (VDPA) has been in existence for almost 40 years and it is absolutely clear from recent events that not only is it not fit for purpose (and never was), but that the provisions have been wrongly interpreted and applied and now there has been a serious breach with regards to equality in denying applications from individuals over the age of twenty one years in respect of flu vaccine.

Three years after the Act was introduced it was described by Lord Allen of Abbeydale as an “immediate measure to meet an urgent need until a long term solution could be worked out” with additional evidence from numerous sources that it was never intended to be permanent. One must then wonder why it is that not only have we the British public been subject to what has in recent times been shown to be a deeply flawed piece of legislation, but how it is that when the subject is raised, it is met with the same response by Ministers over and over ie “there are currently no plans to make changes to the VDPA”(2) (3) (4)

Based on the outcomes of the recent legal challenges, there can surely be no support left for refusing to make changes to the Act. But what of the individuals in the past forty years who have been wrongfully denied access to the scheme on a matter of age and those who have been denied claims because their future burdens have been excluded from an overall assessment conducted by the VDPS.

As far back as 2009, Ian Stewart MP brought an early day motion on behalf of vaccine damaged adults (Hepatitis B and other vaccines) who were excluded from the scheme stating that “there is no clear and transparent system of support for such adults as they are not eligible to make a claim under the Vaccine Damage Payment Act 1979” .

Jane Ellison, in her response of 4th December 2014 stated that the scheme did cover individuals over the age of 18 years of age in respect of some named vaccines.

“The Vaccine Damage Payment Scheme established under the Vaccine Damage Payments Act (VDPA) 1979 essentially covers diseases that are protected against through the routine childhood vaccination programme. However the scheme also covers people over the age of 18 years for the following diseases: poliomyelitis; rubella; meningococcal group C (meningitis C); human papillomavirus (HPV); pandemic influenza A (H1N1) 2009 (swine flu) [up to 31 August 2010]; or during an outbreak of a specified disease against which the person was vaccinated in the United Kingdom or Isle of Man.” (2)

Yet the act itself is perfectly clear with a cut off age of 21 years.

3 Determination of claims

(1)Any reference in this Act, other than section 7, to a claim is a reference to a claim for a payment under section 1(1) above which is made—

(a)by or on behalf of the disabled person concerned or, as the case may be, by his personal representatives; and

(b)in the manner prescribed by regulations under this Act; and

[F1(c)on or before whichever is the later of—

(i)the date on which the disabled person attains the age of 21, or where he has died, the date on which he would have attained the age of 21; and

(ii)the end of the period of six years beginning with the date of the vaccination to which the claim relates;] (5)

Clearly the present application of the provisions in the Act is unsustainable and requires to be addressed urgently. At its inception is was described as a short term solution to address vaccine damage which forty years later is still in existence with a muddled history of being said on one hand to only address claims from individuals under the age of twenty one years, but latterly said to include claims from older persons in respect of some named vaccines. This year had has been established that in refusing an application from an older gentleman in respect of seasonal flu vaccine (not included the list provided by Ms Ellison in 2014 above) the Government has breached the Public Sector Equality Duty. Additionally, it has been shown that the meaning in the Act with regard to calculating percentage of disablement has been wrongly interpreted for a considerable period of time.

It is very definitely time for the Government to make changes to this Act.


Competing interests: No competing interests

03 July 2018
Retired nurse
Stonehaven, Scotland