Legal action launched against 'discriminatory' care home guidance

2 April 2021, 11:22

Campaigners have launched legal action against the Government over its coronavirus guidance which bans people in residential care over the age of 65 from taking trips outside the home.

The rules have been labelled “discriminatory" by pressure group John's Campaign, who told government “care homes are not prisons”.

The campaigners argue that by imposing a ban regardless of the health of the individual, the Government is acting unlawfully.

It said the Equality Act 2010 prohibits indirect discrimination, but the guidance on care home visits "permits (indeed, requires) just such a discriminatory approach to be taken".

John's Campaign is also fighting to have the rules on self-isolation, which say anyone who leaves a care home must self-isolate for 14 days upon return, to be overturned.

The campaign group has started the proceedings in a pre-action letter sent to the Department of Health and Social Care.

In the letter, the campaign's solicitors Leigh Day said the guidance must balance the Covid-19 risk against the harm caused by keeping people away from their families.

It said elderly care home residents' increased risk of catching coronavirus "do not displace the requirement for specific risk assessments which also balance the harm to a care home resident of not visiting outside of the care home".

The letter continued: "That risk being particularly stark where many individuals in care homes have suffered from prolonged separation throughout this year."

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It said those aged 64 and under may be permitted to leave the home even if they have a condition that makes them extremely vulnerable, but those above that age who are otherwise healthy are not.

Leigh Day said existing laws requires care homes to make specific, risk-assessed decisions for the individuals in their care, and imposing blanket restrictions on those aged 64 and over is "fundamentally at odds with that requirement".

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John's Campaign co-founder Nicci Gerrard said: "Care homes are not prisons, and people living in them should have the same rights as everyone else in society."

She added: "It is extraordinary, unkind and entirely unacceptable that Government guidance should seek to prevent anyone over the age of 64 leaving their care home for visits out.

"John's Campaign considers that a blanket ban on visits out is grossly discriminatory, harmful and wrong, and it is a matter of urgency that it is changed."

John's Campaign is also critical of the DHSC for its vague guidance stating that residents over the age of 65 should be allowed out on visits in "exceptional circumstances" such as a visit to a friend or relative at the end of their life.

It said there was no further guidance on what other circumstances would be considered "exceptional".

"This will only serve to perpetuate the confusion and inconsistency amongst care home approaches which our clients have brought to the Secretary of State's attention repeatedly," the letter said.

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John's Campaign also wants to see the 14-day self-isolation requirement amended now that rapid testing has been rolled out to care homes, and now that residents are allowed designated visitors.

It said the continuation of the policy was "surprising and at odds with broader developments including the nation-wide vaccination programme".

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John's Campaign said it fears that it could take months for care home guidance to be updated despite the relaxing of restrictions across the country - a situation that arose when lockdown was eased last year.

"Care home residents and their families have suffered disproportionately through this pandemic and the Government should be prioritising their wellbeing and ensuring that the applicable guidance on both visits in and visits out of care homes is lawful and fit for purpose," the letter said.