02 Oct Legal challenge to the ban on care home residents visiting loved ones at home during COVID-19 pandemic

A letter-before-claim has been sent today to the Secretary of State for Health and Social Care and relevant local authorities alleging that the ban on care home residents visiting their loved ones unlawfully deprives residents of their liberty, in breach of the state’s human rights obligations and is discriminatory.

In late July the government announced that ‘families and friends to be reunited with loved ones in care homes‘ having issued guidance on how such visits could be facilitated. At the same time, the government promised it would issue further guidance about residents visiting their families at home. However, 2 months later and there is still no sign of that guidance, and residents in care homes are not being allowed home as a result.

The claim is brought by a man, who is a resident at a residential care home for individuals with Autism Spectrum Disorder. Due to the guidance and regulations issued to care homes in response to the COVID-19 pandemic, he has been unable leave his care home to visit his family home. These restrictions have meant that our client has missed out on 5 weeks that he would have spent with his family at home and has not seen them for over 6 months.

In stark contrast to the wider public, who have been able to meet up with family members and friends in pubs and restaurants around the country, our client and other care home residents have been prevented from leaving their care homes since the start of the pandemic in March 2020. This has meant that our client and many others have been left socially isolated, particularly as their diagnoses often prevent them from engaging with video technology to see their loved ones or visits to them in the care home extremely limited.

Our judicial review pre-action letter argues that there is nothing in law that prevents our client from visiting his family, as this would not contravene the movement restrictions in the Coronavirus Regulations, nor is there any other legal basis for preventing him leaving the care home to see his family. However, the government’s guidance  gives the impression that home visits are prohibited and effectively imposes a lockdown on care homes, which does not exist in law, and which does not apply to the wider public.  We have argued that this has resulted in our client being unlawfully deprived of his liberty in breach of Article 5 of the European Convention on Human Rights, is an unjustifiable interference in his private and family life in breach of Article 8 of the ECHR, and is discriminatory. We have argued that it is unlawful for the government to fail to take steps to facilitate safe home visits for residents in care homes.

The Claimant’s family say:

“‘He, along with others with autism and learning disabilities in care homes, are the forgotten people of this pandemic. The government continues to fail those like my brother and this has been especially highlighted during these last few months. He is much loved and the family is not complete without him. We just want him to come home”.

Clare Jennings of MG&Co, who acts for the Claimants, says,

“Obviously there is a need to protect residents in care home. No-one wants a repeat of what happened earlier this year. However, safeguarding residents should not be achieved by simply locking residents away in their care homes. Care home residents should not be left lonely and isolated and unable to visit their loved ones at home. Our client has not seen his family in over 6 months now. He has missed out on an entire month he would have spent with his family at home. The government promised to issue guidance on visits home over 2 months ago and has failed to deliver on that promise. The government now needs to actively consider this issue and take positive steps to facilitate safe visits home for care home residents”.

Notes

• The government guidance published in relation to care homes can be found here.

• Article 5 of the ECHR provides that “Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with the procedure prescribed by law…“. Article 8 provides that everyone has the right to respect for private and family life, and that there shall be no interference with that right, except in accordance with the law and is necessary in a democratic society for one of the reasons in Article 8(2). The ECHR can be found here.

• The Claimants are represented by Clare Jennings, Jessica Roome and Kathryn Gooding of Matthew Gold and Company Limited.

• For further information, please contact Clare Jennings or Jessica Roome on 020 8445 9268 or by email clare@matthewgold.co.uk and jessica@matthewgold.co.uk.