John (A Minor : Vaccine Damage Payments scheme), Re

For a statutory compensation scheme whose threshold is assessed by reference to another statutory disablement regime, the assessment is not confined to the claimant’s condition on the assessment date. It may take account of future disablement which, on the evidence, the claimant may be expected to suffer during the relevant assessment period. The tribunal must make a present judgment about future events on the balance of probabilities. Schedule 2 to the Social Security (General Benefit) Regulations 1982 is relevant guidance and an indicative benchmark, even where the claimant’s condition is not comparable to its listed physical injuries; it is not a strait-jacket. The assessment must disregard personal characteristics other than age, sex, and physical and mental condition, and focus on ordinary functioning.

The Secretary of State appealed to the Court of Appeal from the Upper Tribunal (Administrative Appeals Chamber), which had upheld a First-tier Tribunal decision allowing John’s claim under the Vaccine Damage Payments Act 1979. Causation between vaccination and John’s narcolepsy and cataplexy was accepted. The First-tier Tribunal found that his disablement, assessed solely at the decision date, did not reach 60 per cent, but included reasonably foreseeable future disablement and awarded compensation.

The appeal concerned whether the scheme permitted a future-looking assessment, whether Schedule 2 to the Social Security (General Benefit) Regulations 1982 could be used for a neurological condition, and whether the tribunal had considered impermissible personal characteristics. Although the appeal was academic between the parties, the issues arose in other cases.

Appeal dismissed. Lord Justice Davis gave the leading judgment. Lord Justice Underhill and Sir Terence Etherton MR agreed, so the Court of Appeal unanimously upheld the Upper Tribunal’s dismissal of the Secretary of State’s appeal.

1. The assessment under the Vaccine Damage Payments Act 1979 is made as for the purposes of section 103 of the Social Security Contributions and Benefits Act 1992. The incorporated provisions, especially paragraphs 1(a) and 6(1) of Schedule 6, permit consideration of the period during which the claimant has suffered and may be expected to continue to suffer the relevant loss of faculty. The assessment is therefore not a snapshot of the claimant’s condition on the decision or hearing date. Future disablement may be included where it is supported by evidence and is probable on the balance of probabilities.
2. The statutory scheme’s reversal provisions are more naturally directed to later unexpected or unforeseen deterioration. A snapshot approach could create arbitrariness and encourage applications to be made before the threshold was reached merely to preserve a possible later reversal. The fixed payment structure and the provision treating payment as being on account of damages were also consistent with a holistic assessment.
3. Schedule 2 to the Social Security (General Benefit) Regulations 1982 could not be ignored. Regulation 11(8) permitted such regard to the Schedule as was appropriate. Its listed physical injuries might not correspond to a neurological condition, but the resulting disabilities and disablement could still be compared. The Schedule supplied guidance and a benchmark, not a strait-jacket. The First-tier Tribunal’s reference to items 11 and 26 was a legitimate sense check.
4. The First-tier Tribunal had not taken account of impermissible particular characteristics. Its assessment focused on ordinary day-to-day functioning, consistently with paragraph 1(c) of Schedule 6. Its quantitative evaluation was adequately reasoned and was primarily a matter for the specialist tribunal.

• Court of Appeal (Civil Division). Dismissed the Secretary of State’s appeal and endorsed the Upper Tribunal’s decision.
• Upper Tribunal (Administrative Appeals Chamber). On 23 May 2015, UTJ Mitchell upheld the First-tier Tribunal’s decision.
• First-tier Tribunal. On 4 September 2014, allowed John’s appeal and held that he qualified for a Vaccine Damage Payment by including reasonably foreseeable future disablement.