Request

This is a Freedom of Information Request directed and the NHSBA: 1. For the Vaccine Damage Payment Scheme (VDPS), please provide the numbers of Assessors employed (or contracted) in 2020/2021, 2021/2022 and 2022/2023. 2. Please provide any policy, process, procedure, or guidance which the VDPS Assessors follow to ensure a due and fair process is followed.

Response

Question 1

2020/21

For 2020/21, I am writing to advise you that following a search of our paper and electronic records, I have established that the information you requested is not held by the NHS Business Services Authority (NHSBSA). The Department for Work and Pensions (DWP) was previously the administrator of the VDPS, prior to 1 November 2021. They can be contacted as follows:

Freedom of Information Requests Department of Work and Pensions Caxton House Tothill Street London SW1H 9NA Email freedom-of-information-request@dwp.gsi.gov.uk

2021/22

I am writing to advise you that the information you requested is not held by the NHS Business Services Authority (NHSBSA). We administer the VDPS on behalf of DHSC and contract a third-party supplier to carry out independent medical assessments. Under this contract, the number of medical assessors appointed to assess VDPS claims is managed by the supplier and is flexible to meet the needs of the scheme. The NHSBSA is not made aware of the number of assessors engaged in this work.

Question 2

The most up to date guidance that our independent medical assessors has been disclosed. Unfortunately, this disclosure log does not currently support the file type which the requested information has been provided in. If you wish to request the information which was disclosed in response, please contact nhsbsa.foirequests@nhs.net quoting the above reference number.

The guidance is based on Industrial Injury Benefits documentation shared with us by the Department of Work and Pensions (DWP) to assist us in creating guidance that is specific for the Vaccine Damage Payment Scheme (VDPS). We are disclosing the following in full:

• DWP Handbook extracts

• Disablement presentation

• Respiratory Prescribed Diseases Handbook Appendix G

We are disclosing most of the information in the following:

• Vaccine Damage Payment Scheme - A Handbook for Medical Assessors as of 16 December 2022

• 220811 RTW Plus Disablement Workshop

• Assessors induction training

This is because:

1) most of the guidance is based on information that is already in the public domain
2) the level of public interest in how VDPS undertakes medical assessments outweighs the factors for withholding the information

Please note the following:

• We are working with our medical assessment service provider to publish the assessment guidance on our website.

• As stated on page 5 of the ‘Handbook for Medical Assessors’, the guidance is not standalone. We have also provided training slides used to support the training of the medical assessors. .

• On page 11 of the handbook, it refers to the National Insurance number being used. This was correct when the scheme was run by DWP. However, the NHSBSA now uses the NHS number.

• Also on that page, the 7 working days target is an internal RTW Plus specific target and does not reflect the end to end time it takes to complete a medical assessment.

• The intent of the wording on page 29 that starts “Where a relevant disability is worsened“ is to say that only disablement caused by the vaccine should be considered as part of the disability assessment. We will work with the medical assessment service provider to make this clearer.

Determining Disablement

Under Section 21 of the Act, we are not required to provide information in response to a request if it is already reasonably accessible to you. Some of the information you requested is available as outlined below.

The Vaccine Damage Payment Act 1979 (the act) states that a person shall be deemed severely disabled if the disablement is assessed as severe (60% or more). Assessment of the level of disablement is carried out in accordance with Section 103 of the Social Security Contributions and Benefits Act 1992 and Schedule 2 of The Social Security (General Benefit) Regulations 1982 (legislation.gov.uk)

The act also states that if a person is assessed to be severely disabled, the question whether his severe disablement results from vaccination against any of the diseases to which the act applies shall be determined for the purposes of the act on the balance of probability.

The Supplier contracted by NHSBSA makes their assessment independently of the NHSBSA and undertaking medical assessments is not an NHSBSA core function.

All claims are assessed by the independent medical assessment company. Each case is considered on its own merits, by an experienced independent medical assessor, all of whom are General Medical Council registered doctors with a license to practice. Medical assessors will consider clinical research, epidemiological evidence and the current consensus of expert medical opinion together with a claimant’s application and their medical records from their healthcare providers to make a clinical assessment on whether it is more probable than not that the vaccine has caused disablement, and if so, whether that disablement is severe.

Independent medical assessors use resources to support their assessment including, but not limited to: • Medicines and Healthcare products Regulatory Agency (MHRA) data including Yellow Card information on suspected safety concerns involving a healthcare product. o https://yellowcard.mhra.gov.uk/ o https://www.gov.uk/government/publications/coronavirus-covid-19-vaccine-adverse-reactions/coronavirus-vaccine-summary-of-yellow-card-reporting • Vaccine product information and updates • The Green Book – A reference material produced by UK Health Security Agency and used by healthcare professionals in the UK. The green book brings together all documents relating to immunisation against infectious diseases. Immunisation against infectious disease: the green book front cover and contents page - GOV.UK (www.gov.uk)

We do hold detailed guidance on disablement assessments relating to Schedule 2 of The Social Security (General Benefit) Regulations 1982 (legislation.gov.uk) which have been developed by the Department of Work and Pensions (DWP).

Please note that some information has been withheld under the below exemptions.

Section 40(2) – Personal Data

Please be aware that I have decided not to release full details of all staff/claimants as this information falls under the exemption in Section 40 subsections 2 and 3(A)(a) of the Freedom of Information Act.

This is because it would breach the first data protection principle as: a) It is not fair to disclose these people’s personal details to the world and is likely to cause damage or distress to staff/claimants b) These details are not of sufficient interest to the public to warrant an intrusion into the privacy of those staff/claimants.

With regards to the Vaccine Damage Payment Scheme (VDPS) there have been concerns for the health and safety of guidance authors and reviewers, medical assessors and staff administering the scheme. Disclosure of their identity is likely to result in considerable distress to the authors and reviewers of the guidance.

Please click the below web link to see the exemption in full.

https://www.legislation.gov.uk/ukpga/2000/36/section/40

Section 41(2)

Please note that the identification of claimants is also a breach of the common law duty of confidence. A claimant who has been identified could make a claim against the NHSBSA or yourself for the disclosure of the confidential information.

The information requested is therefore being withheld as it falls under the exemption in section 41(1) ‘Information provided in confidence’ of the Freedom of Information Act.

Please click the below web link to see the exemption in full.

https://www.legislation.gov.uk/ukpga/2000/36/section/41

Section 38(1) – Health and Safety

The information you requested is being withheld as it falls under the exemption in section 38(1) of the Freedom of Information Act. In applying this exemption, we have balanced the public interest in withholding the information against the public interest in disclosing the information.

Public accountability

Factors for Withholding

• There is a strong public interest against any person’s health and safety being endangered unnecessarily.

• If medical assessors’ health and safety were to be endangered, it is likely that they would not be prepared to work in such circumstances and it would be very difficult to retain and recruit medical assessors to perform the vital functions as part of VDPS, which is likely to prejudice the operation of VDPS and delay outcomes for claimants (including payments to entitled claimants).

I consider that the public accountability in releasing this information is outweighed by the potential detrimental effect on the physical and mental health of staff.

Section 31(1) – law enforcement

The information you requested is being withheld as it falls under the exemption in section 31(1) of the Freedom of Information Act. In applying this exemption, we have balanced the public interest in withholding the information against the public interest in disclosing the information.

We have withheld specific details of email and systems used as part of the VDPS service under the section 31(1) (law enforcement) exemption. The release of this information would be likely to prejudice the prevention of crime, because the disclosure of such specific information is likely to put VDPS related emails and IT systems at greater risk of cyber-attacks.

We are satisfied that the public interest in maintaining the section 31(1) exemption outweighs the public interest in disclosing the information. While recognising the general public interest in transparency, the withheld information relates to specific administrative and technical processes (not substantive guidance and principles under which VDPS operates and claims are determined), and there is a strong public interest in preventing crime and safeguarding VDPS systems and people’s sensitive personal information from cyber-attacks.

Factors for disclosure

It is in the public interest to know that the appropriate measures are being used to secure personal data.

• Disclosure would allow would-be cyber criminals to target their attacks in a way which allow an increased chance of success. • A successful cyber-attack could lead to a loss of personal data, some of which is sensitive. • A successful cyber-attack and subsequent data loss would cause substantial damage and distress to data subjects. • Such a data loss would lead to a loss of service, which would impact on the general public. • The information is not fundamental to the guidance followed or resulting decisions.

Reasons why public interest favours withholding information

I consider that the public transparency in releasing this information is outweighed by the potential detrimental effect on the prevention or detection of crime and the increased cost to the tax payer that this would represent.

Please click the below web link to see the exemption in full.

https://www.legislation.gov.uk/ukpga/2000/36/section/31

Section 36(2)(c) – prejudice to effective conduct of public affairs

The information you requested is being withheld as it falls under the exemption in section 36(2)(c) of the Freedom of Information Act. In applying this exemption we have balanced the public interest in withholding the information against the public interest in disclosing the information.

The redacted paragraph on page 30 of the medical assessor’s guidance and part of slide 3 of 220811 RTW Plus Disablement Workshop relate to discussions between the Department of Health and Social Care (DHSC) and NHSBSA.

NHSBSA’s Chief Executive (the qualified person for the purposes of section 36) is of the opinion that disclosure of this information would inhibit the free and frank provision of advice, inhibit the free and frank exchange of views for the purposes of deliberation, or otherwise prejudice the effective conduct of public affairs.

We have set out the reasons why this exemption applies, and the public interest in favour of maintaining it, to the ICO, following a recent similar request.

The below web link sets out the exemption in full.

https://www.legislation.gov.uk/ukpga/2000/36/section/36