Bindmans LLP have sent a letter to the Government, pursuant to the pre-action protocol for judicial review, asking them to reconsider the policy that all citizens are only permitted to leave the house for exercise once per day. This was announced by the Prime Minister and published by the Cabinet Office on 23 March 2020.
In particular, Jamie Potter and Emma Varley of Bindmans, and Steve Broach of 39 Essex Chambers, are instructed on behalf of two families with children with autistic spectrum disorder whose conditions necessitate them leaving the house more than once day for their own well-being. One child in particular is deliberately taken to a quiet location that is not local to them, because of their particular needs and where there is a far more limited risk of infection than if he were to remain in an urban environment.
The requirement that everyone is now only able to leave once a day (and can only travel locally) makes it very difficult for these families to be able to manage their children’s high needs and promote their well-being, during a time when lots of disabled people are simultaneously struggling with reduced support from external agencies. Keeping them in urban environments also increases the risk of infection of them and others given they are unable to understand social distancing rules.
Adults and children with disabilities (including those with autism and mental health conditions) are disproportionately affected by the inflexible policy, which is therefore unlawful and discriminatory.
Furthermore, the restrictions within the Policy are not reflected in the current legislation that restricts citizens’ movement.
Jamie Potter, Partner at Bindmans has said:
The social distancing measures being put in place by Government are clearly important, but they cannot be used to disproportionately interfere in the rights of those with protected characteristics, particularly those with mental illness, autism or similar conditions that necessitate leaving the house more than once per day. Such rights can clearly co-exist with the health measures being put in place and Parliament clearly did not think it necessary to impose the once per day restriction arbitrarily introduced by the Government. It is essential the Government needs to rethink this restrictive policy and allow appropriate flexibility where it is necessary and justified.
One of the affected families instructing Bindmans has said:
The Government must consider the vital needs of disabled people and their families, many of whom now have considerably reduced support, while managing the coronavirus crisis, including essential social distancing. Without these considerations, the current situation risks becoming unmanageable for them.
The Policy is being challenged on the basis that it breaches elements of the Human Rights Act 1998 and the Equality Act 2010. The Government has been asked to formally confirm that it will be changing how these restrictions are applied to those with disabilities.