Group launches legal challenge to guidance on care homes

John’s Campaign withdrew an application for judicial review of guidance for family visiting to loved ones in care homes after the government changed its guidance to address key points raised by John’s Campaign at the start of November.

Now the campaign, led by Julia Jones and Nicci Gerrard, has written to Secretary of State Matt Hancock again, this time to tell him that they are considering a challenge to the lawfulness of the latest guidance ‘Making a Christmas bubble with friends and family’ and ‘Visits out of care homes’, published 1 December, 2020.

Both pieces of guidance put a blanket ban on trips out of care homes to visit friends and family for residents aged over 65. Nicci and Julia say the blanket ban, and the failure to offer an individualised risk assessment for every resident who wants to leave the home to visit loved ones at Christmas, are unlawful. They say the guidance fails to accurately express the law and to advise care homes on their legal obligations to people aged over 65.

John’s Campaign says every care home resident, regardless of their age, has the right to an individualised risk assessment to decide whether they should be allowed to leave the care home between December 23-27 to visit loved ones.

Represented by Leigh Day solicitors, John's Camnpaign makes its challenge on the following grounds:

• The guidance misstates the law and breaches equality obligations, under Section 19 Equality Act 2010, which prohibits indirect indiscrimination, the Human Rights Act 1998, which states “like cases should be treated alike and different cases treated differently” and the Care Act 2014 which requires care providers to consider residents’ specific personal needs. Any blanket ban approach is in breach of the legal requirements for care homes to make differentiated decisions for individual residents.
• The guidance creates an unacceptable risk of illegality because it makes it likely that care home providers will breach their legal obligation to carry out individualised risk assessments when deciding if a visit out of the home is appropriate.

John’s Campaign has asked Matt Hancock:

• To change the guidance to make it clear that there is a legal obligation for care home providers to make separate decisions about each individual resident, regardless of their age, based on individualised risk assessments.
• For clarification on the 14-day self-isolation rule for residents returning from a trip out.

Julia Jones and Nicci Gerrard said:

“The government has been promising guidance on visits out of care homes since July – whether a trip to the family home,  a walk by the river or a drive in the family car. This has not been forthcoming. People living in care homes have been effectively imprisoned and denied these simple pleasures with the sanction of two weeks in isolation should they step outside the gates. 

“Now they are told that only those under 65 may be considered eligible for the freedoms enjoyed routinely by the rest of the population. And if they do accept an invitation they must be confined to their rooms for 14 days on return! This is outrageous. Will care home staff who have enjoyed Christmas with their families be self-isolating for 14 days before they return to work?  

“It’s time the government and other authorities began treating these most senior citizens and their families as adults able to make their own sensible and well-informed assessments of risk and benefit – and support them in so doing.”

John’s Campaign is supported in its action by the Relatives and Residents’ Association. Director, Helen Wildbore said:

“The Relatives & Residents Association welcomes the action by John’s Campaign to challenge the legality of this guidance. The cut-off at working age is arbitrary and unfair. It has been a devastating blow to residents and relatives alike and our helpline is hearing about the heartache and frustration this is causing for families. The Government urgently needs to rethink this policy. Older people living in care have been at the sharp end of coronavirus restrictions, with dire and tragic consequences. They cannot be left behind in continued isolation. The Government must take action to ensure their human rights are respected.”

Leigh Day partner Tessa Gregory said:

“John’s Campaign once again considers the Government has published care home guidance which unlawfully ignores the requirement for individual risk assessments and applies arbitrary restrictions, this time on visits out for residents. Our client hopes the Government will urgently amend the relevant guidance to take a more balanced, lawful and compassionate approach.”