DETERMINATION OF CLAIMS (Hansard, 15 February 1979)

§ Dr. Vaughan
I beg to move amendment no. 14, in page 4, line 31, leave out 'on the balance of probability' and insert 'as if the balance of doubt were in favour of the claimant' The amendment seeks to ensure that where there is a doubt the benefit of the doubt is given to the patient or claimant.
This is a probing amendment. We understand that some assessments have already been started. We should like to know how many cases have already been seen and how the balance of probability is being interpreted. The Secretary of State said in a previous debate that an assessment was being made according to well-established social security principles. We should like the Minister to tell us a little more about these well-established principles and how they are being applied to these cases.

§ Mr. Alfred Morris
The hon. Gentleman said that this was a probing amendment. The substitution of the phrase "balance of doubt" for "balance of probability" would not seem to make a great deal of difference to the effect of this clause, yet it seriously obscures the meaning.
On Second Reading many hon. Members said that we should be giving claimants the "benefit of the doubt". That is a different proposition from that in the amendment. I am not sure what the concept "benefit of doubt" means. It might mean that in cases where it could be shown that a disabled person had been vaccinated at any time prior to the onset of disablement, and that some other cause for his disablement could not be proved beyond all reasonable doubt, the disabled person would be automatically eligible for payment. If that is what it means, such a provision would completely transform the scheme and undermine its basis.
In the Second Reading debate my right hon. Friend the Secretary of State referred to the report of the Joint Committee on Vaccination and Immunisation to the effect that although it was likely that some brain damage was caused by vaccination, there was no way of distinguishing such damage from damage caused by 1407 febrile convulsions unconnected with vaccination, which occurred naturally. That is why the Government decided that claims should be determined on the balance of probabilities. It seems reasonable and possible to do that within the general intention of the scheme.
The hon. Gentleman has had a great deal of personal experience in this area. He worked in the service of thalidomide children over many years. I understand his anxiety to make certain that we do whatever we can to help the individual. I hope, from what I have said, that he will appreciate that that is our intention. I trust that he will agree to withdraw the amendment.

§ Dr. Vaughan
I am grateful for that explanation. Will the Minister answer my question? Are we correct in understanding that some assessments have already been started? Will he tell us how many of these cases have been seen and how the balance of probability is turning out in the cases which have already been assessed? Perhaps there have been no difficulties. Perhaps the matter is going forward straightforwardly. We thought that this was an appropriate moment at which to ask about this matter.

§ Mr. Morris
We gave a great deal of information on Second Reading about the way in which the scheme was progressing. I may now give the Committee further information. About 400 cases have received a preliminary medical scrutiny. So far, the decisions that awards are due have been reached in 70 cases. That is the information sought by the hon. Gentleman. We shall naturally keep the House informed of developments as soon as possible.

§ Dr. Vaughan
Have any of those cases yet received any payment? I presume not, as we are only now considering the Bill. Will the Minister give us some idea how long it will be before those concerned receive payments?

§ Mr. Graham Page
Perhaps the Minister would look carefully at the amendment in relation to the words at the beginning of clause 1: If, on consideration of a claim, the Secretary of State is satisfied". On the face of it, the payment can be made only if the Secretary of State is satisfied that the person is severely disabled as a result of vaccination against any of the diseases to which this Act applies". But if the Secretary of State says that he is satisfied about the conditions, there is no argument. It is final and absolute.
That does not seem quite to accord with clause 3(5), which speaks of "the balance of probability". There seems to be a mixture of ideas. First, it is said that the Secretary of State has to be satisfied. Then it is said that he has to be satisfied only on the balance of probabilities. I think there will be terrible confusion in trying to apply subsection (5) as now worded. I can understand the very wise intention to try to cope with the position where it is not quite certain whether the disability is entirely due to vaccination. I do not think that the draftsman has got it right yet, especially in regard to the basis of the Bill, which is that the Secretary of State has to be satisfied. If he is not satisfied, he can refer the matter to a tribunal, and the tribunal then has to be satisfied. I do not know how best the question of balance of probability can be fitted in with that. I fear that it will cause a lot of difficulty and needs to be looked at again.

§ Mr. Alfred Morris
The right hon. Gentleman is concerned about the phrase "balance of probability". I have said that we are concerned that the alternative suggested could seriously obscure the meaning. He can rest assured that we shall want to look very carefully at any difficulty that might arise. I ask him to bear in mind that we are breaking new ground here. We are making no exaggerated claims about our so doing.
My hon. Friend the Member for Stoke-on-Trent, South (Mr. Ashley) has made clear, as has the hon. Member for Reading, South (Dr. Vaughan), that many people would like us to go very much further. I hope the right hon. Gentleman will accept that there are difficulties 1409 involved in breaking new ground. We think that the course we are taking is the best one in all the circumstances. Subsection (5) deals only with the criterion of severe disablement resulting, on the balance of probability, from vaccination. Everything that the right hon. Gentleman has said will be considered.
I hope that, against the background of my reply, the hon. Member for Reading, South will agree to ask leave to withdraw his amendment.

§ Dr. Vaughan
In view of the Minister's statement and assurance, I beg to ask leave to withdraw the amendment.

§ Mr. Boscawen
I hope that the Minister will clear up the question of appeal against the refusal to meet a claim. As I see it, the disabled person has—or the parents of the disabled person have—a right to appeal to the independent medical tribunal where he believes that a decision on the ground that the cause of the disablement did not result from vaccination is incorrect. He has no right of appeal, I understand, where the claim fails because the conditions of clause 2 are not fulfilled. That is as I understand the position from the explanatory document. Perhaps the Minister would clarify that.
Earlier in the debate we were discussing these very matters, where there might be arguments over clause 2 on the question of qualifications, such as the residence of the individual, the occupation of the individual at the time of the vaccination, and so on. Under clause 3(4), as the explanatory document points out, there would be no right of appeal from the Secretary of State's decision where a claim failed because the conditions in clause 2 were not met.
It would be very strange if there were to be no right of appeal on that ground. Perhaps there is a right of appeal to another body. I can understand that the right of appeal may not necessarily be to the independent medical tribunal because it is not a medical matter and is really an appeal against the facts of the case, to determine where a person was vaccinated, the age of the person, and so on.
1410 I should like to have that matter cleared up before we leave clause 3.

§ Mr. Ennals
Clause 4 provides for the appointment of independent medical tribunals, and the review cases can be referred to them following a notice by the Secretary of State to the effect that he is not satisfied that the conditions as to severity of disablement or causation have been satisfied. An applicant is able to make an appeal, whether the question involved is the severity of disablement or the causation of the case. Usually the uncertainty is about causation. It is much easier to reach a determination about the extent of disability. It is much more difficult to prove that the damage or disability is caused by vaccination.
Various problems may arise, such as when the vaccination took place, the stage at which the disability was discovered, and whether there was a long gap between one and the other. These factors are often very difficult to prove, particularly if it is necessary to go back many years into history.
The right to go to a tribunal is a full one. It is really a two-stage process, inasmuch as the Secretary of State first reaches a conclusion on the balance of probability. That is the first stage. Then, if the applicant is dissatisfied and wishes to go to a tribunal, he can do so, and it may be that additional information will be brought forward to produce a different ccnsequence. I hope that I have dealt with the hon. Gentleman's problem.

§ Mr. Graham Page
The Secretary of State has on several occasions referred to the claimant appealing or having the right to go to the tribunal. Is it the Secretary of State who has to refer the case to the tribunal or is there an appeal by the claimant to the tribunal?

§ Mr. Ennals
It is not the Secretary of State who refers a matter to the tribunal; it is the claimant. The claimant, or someone who has claimed on behalf of the disabled person, will receive a reply saying that the Secretary of State is not satisfied, even on the balance of probability. The claimant will at the same time be notified of his right to go before a tribunal. It is the claimant who goes to the tribunal, not the Secretary of State.

§ Mr. Hodgson
The Secretary of State's colleague, in reply to a previous debate, 1411 talked of 70 out of 400 claims having been processed. Would the Secretary of State say something about the number of claims current or pending?

§ Mr. Ennals
I think there has been a total of roughly 2,000 claims made, and one cannot draw too much of a conclusion from the outcome of only 400 of them. One cannot tell whether they were representative of the rest. This has already happened before the Bill has become law. Once the Bill becomes law, one would expect to find a further group of people applying. At this stage we cannot know how many will apply or what proportion of the claimants at the first stage will be adjudged by the Secretary of State to have satisfied the provisions.

§ Mr. Boscawen
I am grateful to the Secretary of State for explaining the right of appeal in clause 3. The difficulties will occur mainly about the degree of disability.

§ Mr. Ennals
The main difficulties centre around the causation and not the degree of disability.

§ Mr. Boscawen
Yes, the causation of disability. The notes on clauses refer to clause 3(4), which in the final sentence says: There is no provision for reference to a tribunal in cases where the claim fails because the conditions in clause 2 are not fulfilled. The cause of the disablement was covered in clause 1, but the conditions in clause 2 are administrative, where the vaccination took place, the time and on whom. There could be dispute on that, and I should like to know where the right of appeal is.

§ Mr. Ennals
There is no right of appeal on the conditions of entitlement in clause 2. The date and place of vaccination are factual questions.