High Court gives permission for judicial review into care home policies taken at start of pandemic

We wrote at the end of October about the crowdfunded legal challenge being brought against the UK Government in relation to their response to care homes at the start of the COVID-19 pandemic. Yesterday, in a remote hearing, Mr Justice Linden gave permission for this legal challenge to proceed to a full hearing.

The claimants, Dr Cathy Gardener and Fay Harris, are seeking a judicial review of the policies and related measures which had a bearing upon the protection of care homes between March and June 2020. They first formally brought their legal challenge in June, following the death of their fathers (who were both residents in care homes) from COVID-19 in April and May this year. As we have often reported in this blog, tens of thousands of care home residents have tragically died in care homes from (either confirmed or probable) COVID-19, since the beginning of the pandemic.

The claimants’ case centres around arguments that the defendants were just too slow to take adequate measures to protect residents of care homes and that some of the policies actually increased the risk of infection to residents. The point made specifically against NHS England is that the compulsory hospital discharge policy (19 March 2020) did not sufficiently acknowledge the risks to the care home resident.

On behalf of the claimants Jason Coppel QC gave submissions which alleged these measures and policies constituted breaches of Articles 2, 3, 8 and/or 14 of the European Convention on Human Rights and the Human Rights Act 1998 (the claim, however, is principally pursued under Article 2 –  the right to protect life). It is also claimed that both Dr Gardner and Ms Harris’s fathers were discriminated against contrary to the Equality Act 2010 as they were elderly and disabled. Finally, they also allege that the Government breached their public law duties, including the duty of transparency – which in part relates to the comments made by health secretary Matt Hancock that ministers had “thrown a protective ring around care homes” from the start of the pandemic. He dismissed submissions made by the defendants that care home deaths in the UK were on par with other developed countries, pointing out that whilst it was not exclusively a British disaster, it was “very largely, a British disaster”. No compensation is being sought by the claimants, but rather declaratory relief and just satisfaction in the form of an acknowledgement of wrong by the Government bodies.

Sir James Eadie QC and Eleanor Grey QC, on behalf of the defendants, made a number of submissions in defence. They say that the defendants were under huge amounts of pressure and still in the process of developing their understanding of the risk of COVID-19 when these policies were developed – they were doing the best they could at the time, and following the advice being given to them by scientific experts. They say that there has been no breach of legal duty – and what the claimants are really seeking to do is launch a public inquiry, which would not be appropriate in a judicial review. They also say there is no causal link, specifically because there is no evidence that the claimants’ fathers actually died as a result of these policies. A further argument made, was that the claim is purely academic as the policies in question have moved on and been superseded.

In his judgment, Mr Justice Linden confirmed that it was in fact in the interests of justice for a claim to be heard. He granted permission on all grounds, commenting that the claimants’ had “crossed the threshold” on the grounds and that he had made his decision on the assumption that the decision in the 2020 case of Dolan (on which a Court of Appeal hearing is imminent) was correct. He did not make any specific comments on the grounds themselves, other than to state that he did not accept the defendants’ argument that he should refuse permission on the grounds that the claim is academic (i.e. because the government policies in question had since been superseded) and to say that the claim will not be a public injury. He also commented that it remains to be seen whether the claimants will succeed on ‘victim’ status arguments in respect of the Human Rights Act claims.

The three defendants, the Secretary of State for Health and Social Care, NHS England and Public Health England, will now be required to prepare their detailed grounds of response, which will involve a substantial disclosure exercise (the claimants hope this will include disclosure of the advice the defendants actually received from the scientists, which the defendants argue formed the basis of the policies at the time). They have until the end of January, and a final hearing, where full legal arguments on the matters in issue such as standing, scope, limitation and merits is likely to be listed thereafter.

While we will have to wait several months for a final ruling, it is clear that the scrutiny on the Government’s response to the COVID-19 pandemic in relation to care homes is continuing to mount.

Will other HRA claims be pursued not just against these defendants but others in the care sector as a result of this litigation? Will these claims be stayed whilst we await the outcome of this JR taking into account limitation is one year for these types of claims?

Beth Philp, Trainee Solicitor, BLM

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