Can the U.K.'s decades-old Vaccine Damage Payments Scheme handle COVID-19?

With COVID-19 vaccines set to be rolled out to tens of millions of people across the U.K. in 2021, the government has announced that anyone who experiences severe side effects as a result of this mass vaccination campaign will be eligible to receive compensation payments under a relatively little-known program that has existed since 1979.

That program, the national Vaccine Damage Payments Scheme (VDPS), entitles individuals to claim a lump sum of up to £120,000 - transferred to their bank account - if they can prove to have been severely disabled as a result of receiving a common vaccine, such as the inoculations against measles, influenza, smallpox and tetanus. But over the past two decades, the scheme has come under repeated criticism, and a number of legal experts are calling for it to be replaced with a new means of distributing compensation payments.

If the VDPS is not rebuilt from the ground up, individuals who suffer disabilities resulting from an adverse reaction to the COVID-19 vaccine may struggle to receive timely payments, or even any compensation at all due to the scheme’s detailed application process, which many argue is overly complex and outdated.

Payments schemes have been fraught with complications throughout the COVID-19 pandemic. In the U.S., stimulus payments were slow to arrive because many U.S. residents lacked a digital connection to the IRS and others did not have a bank account to deposit the funds into.

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With the VDPS, many victims of vaccine damage may be deterred from making claims, due to the complex evidence they have to present in order to receive a payment. Applicants must demonstrate a minimum disablement of 60%, as well as provide medical evidence of a direct causal link to the vaccine, according to Sarah Moore, a partner at London-based law firm Hausfield. According to recent data obtained through the Freedom of Information Act (FOIA), the acceptance rate for payments is just 1.7% over the last ten years, she said.

The strict maximum payments cap of £120,000 for the VDPS has also been criticized. Legal experts explain that claimants would be potentially entitled to millions if they won a civil trial against the vaccine manufacturer, but few have the financial resources to pursue litigation as winning such a case would require access to extensive data and expert analysis, which is hugely expensive.

However a government-financed scheme which paid out larger sums, as well as requiring less evidence to justify the claims, would be far more open to fraud. This has been a problem which has plagued the U.K. government’s Self-Employment Income Support Scheme (SEISS), which provides aid to self-employed individuals in the U.K. who have been affected by the coronavirus pandemic. In October, government officials admitted that approximately £250million had either been fraudulently claimed, or incorrectly handed out.

Moore said that one alternative could be for the U.K. to adopt a vaccine damages payments scheme which is more akin to the Nordic countries, where claims are vetted by the government but the actual compensation payments are processed by vaccine manufacturers and their insurance companies.

“The scheme we have in place effectively indemnifies all vaccine manufacturers who market their products in the U.K., and whose vaccines are identified by the Act,” said Moore. “We need a scheme that is fair, accessible, and sustainably funded with contributions from Big Pharma, as well as the government.”

In November, the British Institute of International and Comparative Law (BIICL) authored a paper outlining a bespoke payments scheme to compensate for adverse effects to COVID-19 vaccines. The suggested scheme would be far more efficient in compensating victims, by automatically making compensation available in cases where a vaccine has been found to cause harm, without limits on the level of disablement or the need for claimants to prove a defect in the vaccine. It would also provide compensation to the same level as might be awarded before the courts.

“The 1979 scheme is no longer fit for purpose,” said Professor Duncan Fairgrieve, one of the co-authors of the BIICL paper. “It would be better to go back to the drawing board and put together a dedicated scheme. The government has talked about making the U.K. a hub of expertise in vaccine technology. This should also be accompanied by a state of the art legislative framework for vaccines in terms of regulation and compensation. The U.K. can be a world-leader in vaccine technology, but there needs to be a 360 degree approach encompassing science, law, and regulation of vaccines.”

Moore predicts that a new payments scheme could help counter the rising trend of vaccine hesitancy within the U.K., helping to convince skeptics that there is greater onus on manufacturers to minimize cases of adverse events. However, she remains to be convinced as to whether politicians will be willing to create a new scheme.

“Despite the tireless efforts of campaigners over the years, there seems to be a lack of political will to reshape it,” she said. “But the optimist in me says that if there is ever a time and momentum to force reform, it is now, in the unprecedented context of a global pandemic, and the government urging population-wide take-up of a voluntary vaccination program.”