On Friday 7 May 2021, Elizabeth Cleaver and Claire Hann of Bindmans LLP, along with barrister Steve Broach of 39 Essex Chambers, placed the Secretary of State for Health and Social Care on urgent notice that the guidance in relation to visits out of care homes (as amended) is unlawful, and amounts to direct and indirect discrimination under the Equality Act 2010.
The guidance imposes restrictions on residents when returning from visits outside of care homes:
“[T]he most significant of these is the requirement that a resident making a visit out of the care home should isolate for 14 days on their return”.
On 1 May 2021, the guidance was amended to provide exceptions to the self-isolation rule. However, the amended guidance only allows for residents to be outdoors (aside from public bathrooms and polling stations) and prohibits the use of public transport. If they do choose to leave the care home, residents are required to be escorted by a member of care home staff or a nominated visitor.
The Secretary of State has failed to provide any evidence to justify imposing these conditions on those living in care homes as opposed to the rest of the general population.
The guidance has caused our clients and no doubt others in their position to feel criticised, marginalised and degraded, and as though they are incapable of following government guidelines.
This is an obvious and severe interference with a wide range of the person’s rights (including their right to liberty and to their freedom of association) as well as amounting to direct and indirect discrimination against people contrary to the Equality Act 2010.
If the Secretary of State fails to revise the guidance in a way which is in accordance with the law, we are instructed to bring the case to the High Court.