Vaccine Damage Payments Act 1979 Statutory Sum Order 1998

HL Deb 29 June 1998 vol 591 cc508-16

7.45 p.m.

Baroness Hollis of Heigham rose to move, That the draft order laid before the House on 8th June be approved [37th Report from the Joint Committee].

The noble Baroness said: My Lords, I beg to move that the draft Vaccine Damage Payments Act 1979 Statutory Sum Order 1998, which was laid before this House on 8th June, be approved.

The draft order before your Lordships increases the amount of payment under Section 1 of the Vaccine Damage Payments Act 1979 to £40,000 for claims made on or after it has been cleared by both Houses. The intention to make this increase was announced on 19th May by John Denham, the Under-Secretary of State for Social Security in answer to a parliamentary Question. It is a matter of considerable interest to many honourable Members of Parliament, and I know to many noble Lords, who have pressed us on the scheme since our return to office. The proposed increase does not represent a changed judgment about the safety of vaccination, but simply our view that it is appropriate and decent to increase the payment.

I should also like to draw your Lordships' attention to the other part of the announcement about the vaccine damage payment scheme being considered as part of the welfare review which includes disability benefits. This will be in consultation with the Department of Health. I am now very happy to bring forward the necessary order to give effect to that announcement. Noble Lords may find it helpful if I first say something about the history of the payment and its purpose.

The Vaccine Damage Payments Act 1979 is, as the draft order makes clear in its heading, a public health measure. It covers not only England and Wales but also Scotland, Northern Ireland and the Isle of Man. The separation of health from social security in 1988 put the administration of the scheme clearly into the custody of the Department of Social Security.

The scheme was introduced in 1979 and aims to provide a payment of a lump sum in respect of those severely damaged as a result of a vaccination under a routine public vaccination programme. The scheme was introduced by the then Secretary of State for Social Services, the late Lord Ennals, who reminded the House that it is not concerned with compensation but with payments. It was designed to provide, reasonably quickly, a lump sum payment of £10,000 to ease the present and future burdens of those suffering from severe vaccine damage.

Fixing the extent of disablement at 80 per cent. or more was based on well-established social security principles assessed as for the purposes of Section 57 of the Social Security Act 1975. In fact, it is the same basis as the industrial injuries benefits scheme and the 80 per cent. threshold reads across into the severe disablement allowance. So it is a fairly standard measurement of severe disability.

On initial claims under the scheme where the Secretary of State's medical advisers are satisfied for the purposes of the scheme that severe disability is the result of vaccination, awards are made within three to six months. A claim can be made at any time within six years of the relevant vaccination or the child's second birthday, whichever is later.

The department's medical advisers consider all aspects of each individual claim, including the nature of the damage, the time relationship between its onset and vaccination, before advising, on balance of probabilities, whether brain damage in that individual case is due to vaccination.

The diseases currently covered in the scheme are diphtheria, tetanus, pertussis, poliomyelitis, measles, rubella, tuberculosis, mumps and Haemophilus influenza type b. Those diseases can lead to serious illness and can be life threatening. For example, between 1951 and 1955 there were 1,103 deaths from whooping cough in England and Wales. Between 1991 and 1995, there were only five.

Vaccines save lives. Each year nearly 2 million children are immunised and approximately 6 million doses of vaccine are given as part of the childhood programme. The continued success of the immunisation programme is of enormous importance to individuals, their families and the country as a whole in reducing the incidence and the effect of serious communicable diseases. Where, rarely, on the balance of probability it does sadly result in severe damage the vaccine damage payments scheme provides a measure of financial help.

I apologise for so much detail but I think your Lordships will agree that it all points to the fact that the scheme does permit a payment to be made quickly in the trying circumstances of a family coping with a severely disabled young child. Even if a payment is not made at the outset the door is not closed. There is a comprehensive review system which allows time, if necessary, for the full extent of disability to become apparent. All that is available outside the process of the courts where proceedings are very often protracted and costly.

The vaccine damage payment scheme provides a substantial measure of preference for those severely disabled as a result of vaccination over those equally severely disabled from some other source. For example, in addition to the payment a wide range of benefits and services may be available. The main benefits specifically for disabled people include DLA, DWA, JDA, and invalid care allowance for those who provide a substantial amount of care for the disabled person.

I should also point out that the value of a vaccine damage payment held in a trust fund is ignored for the purposes of income support, income-based jobseeker's allowance, family credit, disability working allowance, council tax benefit and housing benefit. In addition, local authorities may be able to provide a variety of services as well as help from the independent living fund. Services may include practical help in the home; adaptations to the home, such as a ramp, lift or special equipment; and holidays and recreational facilities outside the home.

The amount we are proposing more than restores the value of the original payment. Based on the retail prices index, the original £30,000 awarded in 1991 would have given us £38,000 rather than the £40,000 that we are proposing. We expect to review that figure periodically though the £40,000 figure gives a degree of head space which will alow us to keep it in force for some time.

The second part of our commitment relates to the future of the scheme which, as I said, will be part of the welfare review. We set up and I chair a Disability Benefits Forum which is limited to some 20 members to discuss complex issues, including all areas of disability, with representatives from local government, medical professionals and other academics. We are looking at possible options for changes in the gateways to benefits for long-term sick and disabled people and carers and how to ensure that help is directed to those who need it.

The vaccine damage scheme will therefore come within the purview of the Disability Benefits Forum for it to make recommendations to us as part of our general review.

With those remarks, trying to set the vaccine damage payment scheme in context and emphasising both the value of the uprating and the fact that it is incorporated in the wider review of disability benefits, I hope your Lordships will approve the order.

Moved, That the draft order laid before the House on 8th June be approved [37th Report from the Joint Committee].—(Baroness Hollis of Heigham.)

Lord Higgins

My Lords, this is certainly a Motion which we welcome. I do not believe that anyone in your Lordships' House would wish to do otherwise; indeed, we do so enthusiastically.

Secondly, we agree with the points made by the noble Baroness in relation to the importance of vaccination. It would be extremely unfortunate if the effect on a small number of people were in any way to deter people from taking such precautions. We realise that this is not a change of policy on the part of the Government, the Opposition or, indeed, the House as a whole.

Having said that, it is the case that in the rare instances where an individual suffers as a result of vaccination, that is a great tragedy. I have very much in mind two constituency cases where that is so. In that context, perhaps I might raise one point with the Minister. She spoke exclusively of children whereas one of my constituency cases is not a child; it is a person of mature years who had a vaccination and the result was that he was severely disabled. Perhaps the Minister will confirm—it will not incur any great cost to the Treasury—that, should such a case arise and come forward for payment, it will not be ruled out on grounds of age.

I turn also to the point made by the noble Baroness in relation to the fact that the payment is not taken into account with regard to various income-related payments to which she referred, provided it is held in a trust. Generally speaking, such trusts are considerably restricted as to which investments can be purchased with the payments made by the Government to help the person who has been tragically affected by damage as a result of vaccination.

If we look at cases from the past, which are far more numerous than those of the future, the fact that the money is being held in a trust and therefore has not been invested in a wide range of assets, as would normally be the case, and the effect of inflation on the previous recipients—perhaps when the figure was much smaller than it is now, even allowing for inflation—can be unduly restrictive. Perhaps the Minister will take that into account when the matter is reviewed. Also, if the money is to be invested in a trust under restrictive arrangements with regard to the scope of investments which can be used, perhaps some form of updating can be introduced for those who are already in that position.

I wish to make two further points. The Minister stressed that the late Lord Ennals, when he introduced this measure, said that it was a payment and not compensation. That will have gladdened the heart of the Treasury at the time because there has always been great debate and anxiety about the whole question of no-fault compensation. I remember in the last two Parliaments going to Ministers with deputations with regard to people who had been affected by contaminated blood when having a transfusion.

The reality is that that distinction is one which may gladden the heart of the Treasury. But the distinction between a payment and compensation in this context is a fine line. The reality is that it is compensation. The problem is that if we open that door, then a large number of other people may seek to come in because of various acts which would be covered if we were to have no-fault compensation. The cost to the Treasury may then be very great.

I make one final point. The noble Baroness referred explicitly to brain damage and, generally speaking, that has been the problem in relation to vaccinations. But there has been a great deal of debate recently in relation to the use of Lariam as a prophylactic in relation to malaria. Mr. Matthew Parris, a little while ago, wrote a terrifying article in that regard and there was an adjournment debate at the end of the last Parliament, just before the election, on the same issue. Again, while not wishing to open the matter of no-fault compensation, I gather that some people have suffered severe disabilities as a result of the use of Lariam and perhaps the Minister will take that into account in her review.

8 p.m.

Earl Russell

My Lords, it is not often that House of Lords' Ministers find themselves praised in another place. Let me put it on the record that when these regulations were before another place the Minister's work on this subject was praised in strong terms by Mr. Ross Cranston. It is to the honour of our House as a whole that that should be recorded.

These regulations make a small but extremely welcome change. They are an overdue uprating. They uprate at slightly above the rate of inflation. I am sure that the whole House will welcome that.

The questions that arise concerning the vaccination damage scheme range a great deal wider. I appreciate the Minister's point that these are questions for the review. Since the review is in progress, perhaps it will be for the convenience of the House to raise some of them now.

I take the point that this is a payment and not compensation. The noble Lord, Lord Higgins, may say that this is a fine line—clearly it is—but it is a part of that line that these payments do not actually meet the cost of bringing up a child damaged as a result of vaccination.

It was foreseen by the late Lord Ennals that there would be court cases and further compensation through the court system. That has happened in a very small proportion of cases. Payments have been made in a very small proportion of claims. Clearly there is something of a problem and we may debate where it resides.

Firstly, there is a problem about legal aid. The Minister will say that that is not the responsibility of her department. Indeed it is not. It may be relevant to record that in all legal aid discussions it has been clearly agreed that the conditional fee agreement is least suitable in medical liability cases. That might be borne in mind in deciding what the state will do about that.

I hope that the 80 per cent. disability threshold will be reconsidered. It is a fairly severe threshold and there could be a fair amount of damage short of that threshold. I have looked at papers on this scheme and it seems that medical research on this subject is still very much in its infancy. There is still a general lack of agreement about the causation of some of the conditions for which claims are made. I can remember as a young parent having earnest discussions about which vaccinations the children should have and which they should not have. I do not now remember in which cases we decided yes and in which cases we decided no. Whichever it was we seem by the grace of God to have struck lucky. It could so easily have been otherwise.

One particular type of case that I want to raise is that of autism and bowel damage found in the Royal Free study by Dr. Wakefield, which was dealt with in the February 1998 edition of the Lancet. I understand that that study is disputed. That does not mean that it is necessarily false. We are dealing with a subject on which research is in its infancy. The main study which disputes that study is the Finnish study, about which there are a certain number of questions. That study is funded by the manufacturer of the vaccine, which might possibly create a conflict of interests. The report also covers only children who developed the damage within three weeks of vaccination whereas in a large number of the cases studied by the Royal Free the damage appeared a good deal later. The research is carried out on hospital in-patients whereas many of those suffering from this condition are not hospital in-patients. It is not something which normally arises as a result of autism. There is room for a certain amount of doubt about that study and for a good deal of attention still to be paid to the Royal Free study.

That is one case among many areas where the causation of damage ascribed to the vaccine is disputed. The mere fact that there is so much dispute about what is caused by vaccination and what is not makes a case for arguing that medical research on this subject is still needed. There may be a case in disputed areas for occasionally erring on the side of generosity.

Baroness Hollis of Heigham

My Lords, I thank noble Lords for their contributions. I am especially grateful for the generosity of the noble Earl—it was a point very kindly taken—and for the enthusiastic endorsement of the noble Lord opposite. If I detect a touch of irony there, that is fine too.

As to the points raised by noble Lords, the noble Lord, Lord Higgins, asked what happens to an adult who had a vaccination in adulthood which then gave rise to vaccine damage. Would he or she be ruled out of the scheme? The scheme applies to vaccinations which are part of the recommended childhood vaccination programme. It would also apply to adults in the case of an outbreak of disease such as an epidemic and to polio contact cases. If the noble Lord wishes to give me—in confidence obviously as it is a private matter—further details of his former constituent I would be happy to obtain more specific guidance as to whether his constituent came within those categories.

The second point raised by the noble Lord concerned the trust fund and income related benefits. It is entirely sensible to look at the covenants or the restrictions associated with the trust to see whether they in any sense restrict the value that can accrue to the fund for the support and health of a child. Almost all lump sum payments are put into trust in this way and it may be wise for us to review whether they are unduly restricted and what avenues are open to us if that should be the case. I will take this up with our lawyers and see whether they are of the same mind as the noble Lord.

The noble Lord, Lord Higgins, also raised a point, that was in part answered for me by the noble Earl, Lord Russell, about the difference between payment and compensation. The noble Earl was right to say that my noble friend—and he was my friend—the late Lord Ennals was careful to make it a lump sum payment and not compensation. It was a lump sum payment to help with some of the costs. It in no way restricts people's access to the courts where they can seek further compensation. We all accept that there are very few cases that do so, let alone that are successful.

As to the issue of Larium, raised by the noble Lord, the Disability Benefits Forum will be looking at the support of all disabled people, especially those who are brain damaged, from whatever cause. So Larium, as such, is not ruled out of any review of disability benefits. That is not to say—unless I was guided to so do—that it will come within a vaccination scheme. A lot of medication can have unfortunate side effects for a limited number of people if they present symptoms of whatever sort. Clearly to do that would expand the vaccine damage scheme well beyond the intentions of its original founders.

The noble Earl, Lord Russell, raised the point about the severity of the 80 per cent. threshold. I repeat that this is analogous to the industrial injuries and the severe disablement thresholds. Someone may not qualify for a compensation sum because they are below that threshold, but they would still be eligible for the other disability benefits such as DLA, whether middle rate or high rate care, mobility and income support with a disability premium. It in no way rules out the access of disabled people to other and related benefits.

The noble Earl also raised the interesting question, which has been widely debated in the media, about the connection between the triple vaccine and, in particular, Crohn's disease and autism, and the controversy raised, perfectly properly, by Dr. Wakefield in his article in the Lancet a few months ago. There have been two Finnish studies, five research reports that I am aware of and a lot of letters and correspondence and small items in the Lancet. As far as I am aware, not one of them supports Dr. Wakefield's conclusions.

The first Finnish study reported in 1994. It was a 12 year study of adverse reactions in 1.5 million children in Finland who had received MMR vaccine between 1982 and 1994, that is 3 million injections. There were no deaths or long-term consequences in the vaccinated children.

A further study reported in 1998 specifically in relation to the suggestion by Dr. Wakefield and others that MMR, Crohn's disease and autism may be causally related. This further study, following the Wakefield article in the Lancet, of all children in whom gastro-intestinal symptoms were reported following MMR has identified no cases of Crohn's disease or autism in this group. The study, which reported in May 1998 specifically in response to Dr. Wakefield's research, showed that between 1982 and 1984 just 31 children out of the Finnish cohort developed gastro-intestinal symptoms, the most commonly reported being diarrhoea and vomiting, the symptoms' onset being between 15 and 20 days after vaccination, and for all but one child, who had diarrhoea for six weeks, the symptoms were short-lived. All the children eventually made a complete recovery. None of the children with those symptoms subsequently developed autism or Crohn's disease in a period ranging from 14 months to 15 years after vaccination.

Further research papers since then—five of them more generally and two specifically—have shown that the incidence of Crohn's disease is increasing but that it had already been increasing some 20 years before the introduction of MMR and that the introduction of MMR has not resulted in any acceleration in the rate of increase. As for autism, there have been no statistics to show any increase in the prevalence of autism in the past decade.

There have been numerous letters and editorials. Virtually all of them have been severely critical of Dr. Wakefield's methodology and have challenged his conclusions. That is not to say—I emphasise this—that Dr. Wakefield's hypothesis or thesis has been irrefutably contradicted. That cannot be the case because majority opinions very often start off as a minority dissenting opinion. However, because the impact of his article has such potentially devastating implications were it to be correct, the medical profession and scientific advisers and indeed the Chief Medical Officer to the DoH have taken special care with this research. Based on the two Finnish studies and the five subsequent research reports, as well as many articles and much literature, we have no evidence that there is any causal connection between MMR and Crohn's disease or autism.

That evidence may subsequently be found to exist. I am not saying that it could never exist. But, on a study of 1.5 million children over a period of around 14 years, not a single case of autism or Crohn's disease could be attributed to MMR by any scientific methodology. So, while being respectful of what scientific research may throw up, I hope the noble Earl will accept that this is not being taken lightly by the department. We have reviewed it. I have specifically asked for briefing on this matter because we all have friends and relatives with young children and we are asked constantly for advice as to whether they should or should not be vaccinated. We want to give them the best possible information for that.

I hope I have answered the questions raised by your Lordships and, as a result, that the House will be minded to accept this order.

On Question, Motion agreed to.

House adjourned at fourteen minutes past eight o'clock.