High Court judge gives reasons for refusing permission for legal challenge to care home workers vaccination requirement

A High Court judge has given her reasons for dismissing two challenges to the Government’s policy that anyone working in a care home must be vaccinated against Covid-19 unless medically exempt.

Two cases were put before Mrs Justice Whipple on 2 November against both the Secretary of State for Health and Social Care and the Joint Committee for Vaccination and Immunisation.

In Peters & Anor, R. (On the Application of) v The Secretary Of State For Health And Social Care & Anor [[2021] EWHC 3182 (Admin) [published on Bailii this week] she said that she had not provided a comprehensive answer to every point raised given the need for a rapid answer to the case.

Whipple J said her role was solely legal and she would have “no regard to [the policy’s] political, social or healthcare merits” of the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 on this.

The first case was brought by Julie Peters and Nicola Findlay, respectively a programme director and a full-time support worker at a care home.

They argued that the regulation requiring vaccinations was ultra vires as s45E of the Public Health (Control of Disease) Act 1984 provided that regulations may not require a person to undergo medical treatment.   

The new vaccination regulation was, they argued, precluded by this as its effect was to force workers to become vaccinated or lose their jobs.

They said s45E has primacy over the 2021 Regulations, on the basis that primary statute prevails over secondary legislation. 

But Whipple J said: “I am unable to accept that submission. I do not consider it to be arguable.”

Individuals retained the right to decide whether to be vaccinated or not and the 2021 Regulations imposed a consequence to preclude someone who has chosen not to be vaccinated from taking up work in a care home unless they come within an exempted category. 

“I conclude that this is not a situation where s.45E is even arguably engaged,” the judge said.

She also dismissed arguments that any gap between s45E and the 2021 Regulation could be ‘bridged’ by Article 8 of the European Convention. 

“I reject that proposition as unarguable, as well,” he said. “This is a tenuous argument…case law is firmly against the claimants here.”

Whipple J also rejected a ground that the Government had made insufficient enquiry and ignored relevant considerations and so had acted irrationally.

“The core of the argument is that the Government was wrong to introduce the 2021 Regulations, given the state of the science about Covid infections and treatment, and given the alternatives that were available that might have protected people in care homes from Covid-19,” she said.

"One of the points made by the claimants is that they have not seen any evidence from the Government to support the Government’s submissions advanced in their summary grounds and skeleton; but of course the claimants have not seen extensive evidence, we are only at the permission stage. 

“The claimants cannot argue they should get permission just to see whether there is evidence to justify the point of challenge.” 

She said the Government had statistics demonstrating that not all care workers were vaccinated and there was no inadequacy amounting to an error of law in the data relied on.

These points were ultimately arguments about political and social choices made by Government “and do not raise issues where the court has a legitimate role”.  

The judge also dismissed an argument that Article 14 of the human rights convention was engaged because of the higher proportions of women and BAME people who work in social care. 

“Any discrimination which could be shown to exist, and that in and of itself is a doubtful proposition, would surely be justified in the context of a pandemic and in the context of an urgent need to protect care home residents from Covid-19,” Whipple J said.

The second case, brought by a  Dr Fairburn, raised similar grounds and Whipple J concluded he lacked the standing to bring his claim as he was double vaccinated and so not affected by the 2021 Regulations and did not work in a care homes but only gave advice, presentations and lectures in that sector.

“Sure, the Regulations might impact on his business, but he is not someone who is directly affected or impacted by the 2021 Regulations themselves, so, he, in my judgment, lacks standing,” Whipple J said.

Mark Smulian