Secretary of State for Work & Pensions v FG (on behalf of John (a minor)  EWCA Civ 61
The Secretary of State for Work & Pensions (SSWP) appealed against a decision of the Upper Tribunal (UT) that the respondent was entitled to compensation under the vaccine damages payments scheme. It was accepted that the respondent had been left with severe narcolepsy and cataplexy as a result of receiving a pandemic influenza vaccine at the age of 7. However, his mother’s initial claim under the Vaccine Damage Payments Act 1979 was refused on the basis that SSWP denied that he was ‘severely disabled’ to the extent of 60% (as required under the Act). The First Tier Tribunal (FTT) agreed that at the time of his assessment by a specialist in paediatric neurodisability and sleep medicine, the respondent was not 60% severely disabled, but it determined that significant future improvement in his condition was unlikely and found that it could take account of future problems that were reasonably foreseeable at the date of the assessment. The UT upheld that decision.
The Court of Appeal (Sir Terence Etherton MR, Davis LJ, Underhill LJ) held:
(1) If an individual was assessed as having a lifelong condition, it was hard to see why that should not be taken into account in assessing the extent of the disablement. Courts were used to assessing loss on a balance of probabilities on present evidence with no particular difficulty beyond a difficult evaluation as to whether the 60% threshold was reached. Several reasons suggests it could not have been Parliament’s intention to impose a requirement to determine the extent of disablement at the time of the assessment: (i) such an approach had the potential to turn the scheme into a litigation game; (ii) it would involve an element of arbitrariness, with much depending on when the applicant first happened to apply; (iii) the fact the scheme provided for a fixed sum of compensation, without possibility of argument over quantum, was consistent with a process designed to look to past and future on a holistic basis. The words of the Social Security Contributions and Benefits Act 1992 (particularly Sch. 6, para 6(1)) were readily compatible with including a future period. The UT had been justified in looking to the respondent’s prognosis;
(2) Although the injuries described in Sch 2 of the 1982 Regulations did not fit at all well with the respondent’s injuries and loss of faculties, that did not mean that Sch 2 was entirely to be ignored. Having regard to Sch 2 would not be a wholly empty exercise in relation to a non-physical injury. Read as a whole, the UT’s decision did not fall into the error of regarding Sch 2 as some kind of strait-jacket, as opposed to guidance.