Government Covid care home policies ruled 'unlawful' by High Court

The plans failed to take into account the risk to elderly and other vulnerable residents from non-symptomatic spread of Covid, judges said this morning.

At the time, Ministers said they were throwing a "protective ring" around care homes, to keep the most vulnerable safe.

In a ruling on Wednesday, Lord Justice Bean and Mr Justice Garnham concluded that policies contained in documents released in March and early April 2020 were unlawful because they failed to take into account the risk to elderly and vulnerable residents from non-symptomatic transmission of the virus.

They said that, despite there being “growing awareness” of the risk of asymptomatic transmission throughout March 2020, there was no evidence that then Health Secretary Matt Hancock addressed the issue of the risk to care home residents of such transmission.

The judges said in their ruling: “In our judgment, this was not a binary question – a choice between on the one hand doing nothing at all, and on the other hand requiring all newly admitted residents to be quarantined.

“The document could, for example, have said that where an asymptomatic patient, other than one who has tested negative, is admitted to a care home, he or she should, so far as practicable, be kept apart from other residents for up to 14 days.

“Since there is no evidence that this question was considered by the Secretary of State, or that he was asked to consider it, it is not an example of a political judgment on a finely balanced issue.”

They added: “The drafters of the documents of March 17 and April 2 simply failed to take into account the highly relevant consideration of the risk to elderly and vulnerable residents from asymptomatic transmission.”

The case was brought by two women whose fathers died of Covid, including Dr Cathy Gardner, whose father died at the age of 88 at a care home in Bicester, Oxfordshire, in April 2020.