Replies from the Department
PROPOSAL FOR THE REGULATORY REFORM (VACCINE DAMAGE
PAYMENTS ACT 1979) ORDER 2002
Thank you for your letter of 22 January requesting
further information on the above.
Your first enquiry concerned the transitional claims
provisions in the proposed order. As the Committee has noted,
the provisions in the Schedule to the draft Regulatory Reform
(Vaccine Damage Payments Act 1979) Order ("the Order")
have been designated as subordinate provisions under section 4(3)
of the Regulatory Reform Act 2001. It was considered appropriate
to designate the provisions as subordinate for several reasons.
The provisions in the Schedule are transitional, as they will
only apply for a period of three years after the date on which
the Order comes into force, should it be approved by Parliament
(paragraph 4(c) of the Schedule). The transitional claim provisions
reflect the intention that past claimants, or those who had considered
claiming in the past, should be placed in the same position as
those who will be able to make a claim under the Act as amended
by the Order. The aim of the provisions is explained in more detail
at paras 30-35 of the Consultation Document.
The reason for the designation of these provisions
as subordinate is that the transitional claim provisions are quite
detailed and complex and it was considered preferable not to include
them on the face of an otherwise relatively straightforward Act.
The amendment to section 7B(1) of the Vaccine Damage Payments
Act 1979 ("the Act") made by article 5 of the Order
provides a clear cross-reference to the Order. A further reason
is that, as the provisions are complex, it is possible that experience
of working them may indicate the need for fine-tuning at a later
date and it appears to the Department that it would be sensible
to deal with this by a subsequent provisions order. In view of
the transitional nature of the provisions and their temporary
life, it was considered that they would be suitable to be provided
for in subordinate provisions, further to s4(4)(b) of the Regulatory
Reform Act 2001. The Department apologises for not clarifying
in the Explanatory Statement the reason for the use of the designation.
You enquired which diseases vaccinations against
which fall within the scope of the Act. These are:
|smallpox (vaccinations up to August 1971)
|mumps (added 9 April 1990)||
|haemophilus influenzae b (added 31 May 1995)
|meningitis c (added 30 May 2001)||
The Vaccine Damage Payment Scheme is designed to cover routinely
recommended vaccines in the childhood immunisation programme.
Vaccines are added to the scheme once they have been introduced
into the UK childhood immunisation programme, although in some
instances, as with vaccinations against polio, rubella and meningitis
C, these would also cover those vaccinated when over 18. New vaccines
or immunisation programmes would normally be announced by the
Department of Health (in England) through a letter from the Chief
Medical Officer to all doctors and staff involved in the immunisation
programme. To add a disease to the list of those covered by the
Act, the Secretary of State would make an order by statutory instrument,
pursuant to section 1(2)(i) and (5) of the Act. The most recent
such order was that in relation to meningitis C (the Vaccine Damage
Payments (Specified Disease) Order 2001, S.I. 2001/1652).
The Committee has suggested that the amendment to section 3(1)(c)
of the Act (article 3 of the Order) should be clearer as to the
meaning of "six years from the date of vaccination".
The intention is that this element of the amendment to section
3(1)(c) should mirror the present provision in the Act. The present
provision is that a claim must be made within "the period
of six years.... beginning on the date of the vaccination".
Thus, the day of vaccination presently counts in the 6-year period,
and so is intended to count in the amended provision. The Department
agrees that an amendment should be made to the proposed Order
to clarify this point.
Of course, the precise wording of any such alteration to the amendment
would need to be tested with Parliamentary Counsel. The Department
also appreciates that the Explanatory Note could be misleading
in this regard and should be amended. The Department will revert
to Parliamentary Counsel once the period for consideration by
the Committees has ended. We are also happy to accept the Committee's
suggestions regarding the recitals.
Finally, your supplementary enquiry asked whether the Social Security
Advisory Committee (SSAC) was consulted on the proposal. The proposal
has not been referred to SSAC as vaccine damage issues fall outside
their ambit. Their remit, as defined in s170 of the Social Security
Administration Act 1992 ("the Administration Act"),
is to give advice to the Secretary of State on social security
issues and to consider and report on social security regulations
referred to it. The Vaccine Damage Payments Act is not one of
"the relevant enactments" covered by s170 of the Administration
Act, principally because vaccine damage legislation is defined
as public health, rather than social security, legislation. None
of the orders made over the years - to increase the rate of the
Vaccine Damage Payment or to add new diseases to the list of those
covered by the Act - has been the subject of a SSAC reference.
8 February 2002
In my letter of 8 February, in answering the Committee's enquiry
regarding the process for adding diseases to the list of those
covered by the VDP Act 1979, I referred to actions in England
to announce new vaccines or immunisation programmes. I should
of course have also included reference to such actions in Scotland,
Wales, Northern Ireland and the Isle of Man.
The position in those areas is actually the same as in England,
with announcements being made through a letter issued by the Chief
Medical Officer. There is a slight variation in Northern Ireland
where announcements are issued jointly in the names of the Chief
Medical Officer, the Chief Pharmaceutical Officer and the Chief
I apologise for the earlier omission.
13 February 2002