KNOWLEDGE

Vaccine Damage Payment Scheme. Another route to compensation?

MortonFraser_Derek Couper
Author
Derek Couper
Associate
PUBLISHED:
24 June 2022
Audience:
Individuals and Families
category:
Blog

The first recipient of compensation as a result of an adverse reaction to the AstraZeneca Covid-19 vaccine has been awarded £120,000, following the death of her fiancé in May 2021, the BBC reports.

Vikki Spit of Alston in Cumbria sought a vaccine damage payment under the provisions of the Vaccine Damage Payment Act 1979. This legislation provides for a tax-free one-off payment of the "statutory sum" currently set at £120,000, which is payable to any person who meets certain eligibility requirements.

A person will be eligible for a vaccine damage payment if the UK Government's Department of Work & Pensions is satisfied that the person is, or was immediately before his/her death, "severely disabled" as a result of "a vaccination which was carried out in the UK or Isle of Man". Any person who was severely disabled as a result of the vaccination, must be over the age of 2 on the date when the claim was made, or, if they died before that date, they must have been over the age of 2 when they died.

A vaccine damage payment is intended to compensate for "severe disability" (at least 60% disabled), which is assessed as for the purposes of entitlement to disablement pension in the UK. Disability can be mental or physical, based on medical evidence from doctors or hospitals involved in the individual's treatment. 

In the case of Vikki Spit, her fiancé fell ill 8 days after he had his injection and ultimately died in May 2021.  Ms Spit explained that she had got into debt after losing the earnings of her late fiancé and felt that she had to wait too long for compensation under the scheme. The award of £120,000 is the maximum payable under the Act and it does not affect either the ability of individuals to pursue a claim for compensation against the health care provider who recommended or carried out the vaccine treatment, nor does it impact the entitlement to access benefits in the UK. 

While the implementation of the 1979 Act never envisaged specifically Covid-19 and claims for compensation which may arise from treatment of that virus, the scope of the Act was explicitly extended to cover vaccination of Covid-19 as of 31 December 2020 and now forms part of the compensation regime.

During the roll-out of the Covid-19 vaccine in 2020 and throughout 2021, popular myths included the assertion that in order to receive a Covid 19 vaccination, patients must waive all legal rights to recourse including prohibiting them from pursuing any claim for compensation against the Health Board or other health care provider in the event that they suffered from adverse consequences.  Not only was that anxiety unfounded, but in addition to the enduring right of an individual to consider and pursue a medical negligence action (provided there is a basis to do so), the vaccine compensation scheme sits in addition to that and offers a financial contribution to a person affected by adverse reactions to vaccine treatments without compromising their claim in any other respect. In effect, it offers an additional layer of protection.

Indeed, one of the main criticisms of the vaccine damage payment scheme is that the statutory amount of £120,000 is simply insufficient to cover cases in which the individual has suffered from profound physical or mental disability as a result of vaccine or has lost substantial earnings due to their inability to work. In those circumstances, a claim should always be considered alongside the vaccine damage payment, though the prospects of achieving a successful outcome to any such claim would need assessed separately.

The vaccine damage payment is made irrespective of whether, for example, pre-existing conditions or allergies were properly accounted for prior to the administration of the vaccine. The payment is made to the individual regardless of whether there is suspicion of negligence. It is likely that medical negligence cases raised on the basis of the Covid-19 vaccine and adverse reactions to that treatment would face a number of hurdles, in terms of establishing the liability of medical staff or manufacturers and what they ought to have known about the treatment. In some ways it may be argued that the vaccine damage payment provides some form of remedy for individuals affected by a reaction to the treatment without insisting that the high burden of proving a medical negligence case be satisfied.

Disclaimer

The content of this webpage is for information only and is not intended to be construed as legal advice and should not be treated as a substitute for specific advice. Morton Fraser LLP accepts no responsibility for the content of any third party website to which this webpage refers.  Morton Fraser LLP is authorised and regulated by the Financial Conduct Authority.