Select Committee on Deregulation and Regulatory Reform Ninth Report


Replies from the Department



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:

whooping coughpoliomyelitis
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 Nursing Officer.

I apologise for the earlier omission.

13 February 2002

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