Official Solicitor wins appeal over ability of mother and step-father of autistic man to leave homes to provide care during first lockdown

The Official Solicitor has won an appeal on behalf of a 30-year-old with autism and communication difficulties over whether his mother and step-father had a reasonable excuse during the first national lockdown to leave their homes to provide him with care.

This was pursuant to regulation 6(2)(d) of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 ("the first restrictions Regulations").

In NG (By His Litigation Friend, the Official Solicitor) v Hertfordshire County Council & Ors [2021] EWCOP 2 the OS raised three grounds of challenge:

1. the Judge was wrong in finding that NG was not in receipt of a shared care package;
2. the Judge erred in law in his interpretation of regulation 6(2)(d); and
3. the Judge asked himself the wrong question, namely whether the welfare deputy, HG, had a reasonable interpretation of the regulation.

The appeal followed a ruling last July by HHJ Vavrecka, who had concluded that NG’s mother and stepfather did not have a reasonable excuse to leave their homes to provide care to NG, pursuant to regulation 6(2)(d) of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020.

There have been proceedings since 2017 relating to contact between NG and NDG (the stepfather) “involving very considerable dispute between AG and NDG”, the judge said, and in June 2018 HHJ Waller gave a judgment on NDG's application to have contact with NG, which referred throughout to ‘contact’ rather than to the care.

Hertfordshire relied on these references to support its argument that the parents were having contact with NG but not providing a shared care package to him.

Following HHJ Waller's judgment, HG was appointed as NG's deputy for health and welfare and property and affairs.

Once the first national lockdown began in March 2020, HG emailed AG and NDG to say: “It is really unfortunate I have to make some difficult decisions during these unprecedented times to ensure NG's well-being and that of others.

“As of today I am suspending contact with NG except for his carers who will follow a very strict hand washing and cleanliness regime, whilst trying to encourage NG to follow this also. This will be continuously reviewed in line with government advice or instructions.”

HG explained that the care agency would withdraw care were family visits to continue due to concerns about its staff’s safety.

In the Court of Protection Lieven J said the case turned on the correct construction of the regulations, which included being able to leave home “to provide care or assistance, including relevant personal care within the meaning of paragraph 7(3B) of Schedule 4 to the Safeguarding of Vulnerable Groups Act 2006, to a vulnerable person, or to provide emergency assistance”.

She said that although the judgments of both HHJ Vavrecka and HHJ Waller contained many references to ‘contact’, “it is important to appreciate that it was always the intention that when NDG (or indeed AG) had contact with NG they would provide him with care at the same time as contact.

“NG requires 24/7 care including encouraging him to eat and helping him with personal care.”

The Official Solicitor argued that HHJ Vavrecka was wrong to have incorporated a test that the provision of care must be ‘essential’ and gave a priority to paid care over unpaid family care. He also argued there was no requirement in the regulation for care to be ‘essential’.

Allowing the appeal on grounds 1 and 2, Lieven J said the Official Solicitor was correct as NDG and AG were beyond any doubt providing care to NG when they were spending time with him.

“At those times, which amount to approximately three out of seven days per week, they are his sole carers. NG requires 24/7 care by reason of his disability and at the times the parents are having contact with him, the care he needs is being provided by his parents and not by paid carers.”

She said both Hertfordshire and HHJ Vavrecka “placed undue weight on the language of the judgment and order of HHJ Waller without properly considering the nature of the dispute that was in issue”.

That case had concerned contact and so HHJ Waller used that term rather than ‘care’ since the nature of the care had not been in dispute.

She said it was undoubted that shared care was provided to NG both by his parents and the care service Home Instead and “the important matter is the actual provision of the care rather than who arranged and managed the provision of the care”.

Lieven J said: “In my view the judge was wrong to say that this was not a shared care package and that the parents were just having contact and were not providing care.”

While the Government placed great emphasis on the importance of people staying at home and not mixing unnecessarily, “it is equally clear that the Government intended to ensure that those who needed to leave their home to provide care or assistance to a vulnerable person should be allowed to do so”.

Enormous numbers of family carers provided care to persons outside their household and it was essential this could continue.

“The fact that it would be theoretically possible, or indeed practically possible, for that unpaid family care to be replaced by paid care does not mean that the family care is not meeting a need,” Lieven J said.

The judge added: “If one considers the need for the care from NG's perspective then, in my view, it is clear that he needs parental care as well as paid care. His physical needs can be met by 24/7 paid care, but his emotional needs and best interests are met by having a mix of family and paid care. It is wrong in my view to focus simply on the fact that his physical needs can be met by paid care. As NDG and the OS submitted, NG's best interests must be relevant to meeting his needs and those best interests include being cared for, at times, by his parents.

“This interpretation is supported by the words of regulation 6(1) and the defence of reasonable excuse. The fact that a person is delivering care pursuant to a court order to a family member must in my view amount to a reasonable excuse to leave the home.”

Mrs Justice Lieven added:

50. In looking at the broader issues in play when interpreting regulation 6(2)(d) it is also important to have regard to article 8 ECHR and the protection of family life, subject to the justifications in article 8(2). A ban on family members being able to provide care to loved ones, in any circumstances where paid care is available, would be a very serious interference with the right to family life. That does not mean that such an interference would be incapable of justification, but it does in my view mean that a court should be very careful before reaching an interpretation which would give such precedence to paid over family care. There is nothing in the first restrictions Regulations, Guidance, or any Government document which would suggest the Government intended to prioritise paid over family care in this way or to interfere with article 8 rights in such a broad manner.

51. The Local Authority's submissions, and the Judge's interpretation, do create the effect of giving such a priority to paid care. NG's physical needs can undoubtedly be met by his paid carers, but his wider emotional and psychological need is to see and be cared for by his parents. Further, care from a loving family is not a one way street in which the focus is only on the person being cared for. Both NDG and AG plainly feel that they "need", in the sense that it is important both to them and to NG, to provide NG with care. The very nature of this bond is undermined by the somewhat mechanistic approach of considering that there is no need for the parents to provide care because someone else can be paid to do so.

52. Further, this conclusion is supported by the approach to the interpretation of statute or statutory instrument encompassed in the principle against doubtful penalisation. Regulation 9 creates a criminal offence if regulation 6(1) is breached. As is set out in Bennion on Statutory Interpretation (6th ed): "It is a principle of legal policy that a person should not be penalised except under clear law", see p. 748. If the care had to be essential, or there was a priority given to paid over unpaid care, then the first restrictions Regulations needed to make that clear. The wording of regulation 6(2)(d) is broad and unspecific in respect to the nature of the care. It would therefore be wrong to create a criminal offence for someone providing care in the circumstances of AG and NDG.

Mrs Justice Lieven therefore allowed the appeal.

Mark Smulian