A woman whose elderly father died from Covid has called on Matt Hancock to apologise over a “despicable lie” over care homes being protected after a court ruled the government’s policy of discharging patients to residential settings was unlawful.
High Court judges on Wednesday ruled that discharging Covid patients to care homes without testing them was unlawful.
They said that the policy failed to take into account the risk to elderly and vulnerable residents from non-symptomatic transmission.
The case against Boris Johnson’s government was brought by two women whose fathers died from Covid-19 and who said ministers failed to protect care home residents during the pandemic.
Cathy Gardner, whose father Michael Gibson died, and Fay Harris, whose father Donald died, took High Court action against health secretary Sajid Javid, NHS England and Public Health England.
Speaking outside the court after the verdict, Ms Gardner said Mr Hancock should be “ashamed” of his lie that a “protective ring” was put in place for the most vulnerable.
The former health secretary had told a Downing Street press conference in May 2020 that “right from the start” of the pandemic, the government “tried to throw a protective ring around our care homes”.
Ms Gardner said the ruling vindicated her belief that the government had “neglected” care home residents during the pandemic. She also called on the prime minister to “accept responsibility” for a policy devised “on his watch”.
Ms Gardner and Ms Harris had asked two judges to make declarations that unlawful decisions were made. Lawyers representing Sajid Javid, the current health secretary, NHS England and Public Health England fought the claim.
Ms Gardner, 60, from Devon, said her father died at the age of 88 at a care home in Bicester, Oxfordshire, in April 2020.
A barrister representing the two women told Lord Justice Bean and Mr Justice Garnham that between March and June 2020 – when Mr Hancock was health secretary – more than 20,000 elderly or disabled care home residents had died from Covid-19 in England and Wales.
In the ruling, 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 Mr 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.
"Nor is it a point on which any of the expert committees had advised that no guidance was required.
"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 judges said these issues were not addressed until a further document in mid-April 2020.
Responding to the judgement, Ms Harris said: "I am very pleased with the judgment today. It brings some comfort to know that the government have been shown to act unlawfully.
"Their actions exposed many vulnerable people to a greater risk of death - and many thousands did die.
"It has only increased the distress to me and many others that the government have not been honest and owned up to their mistakes.
"I have lost precious years with my wonderful dad. I left him fit, well and happy on the 22nd March 2020 when his home went into lockdown. He should have been safe and protected, but I never saw or spoke to him again. Many people died of Covid in his care home.
"I hope this judgment will help the thousands of other families who have lost parents due to this government’s reckless and unlawful policies."
Layla Moran MP, chair of the All-Party Parliamentary Group on coronavirus said the failings in care homes were “unforgivable”.
She said: “It is unforgivable that, despite government promises, some of the most vulnerable in society suffered the most during the pandemic, with many forced into solitude for months and countless passing away without the comfort of loved ones.
“After partygate, the billions in public money wasted and today’s ruling, the need for a public inquiry to begin immediately is clear. Lessons must be urgently learned so care homes are never again treated as an afterthought in pandemic planning.”
A spokesman for Mr Hancock said the High Court had found he acted reasonably but Public Health England "failed to tell ministers what they knew about asymptomatic transmission" of Covid.
He added "Mr Hancock has frequently stated how he wished this had been brought to his attention earlier".
