Challenge to lack of COVID-19 guidance for people in supported living

We have sent a letter before claim to Matt Hancock, the Secretary of State for Health and Social Care, for the failure to issue and maintain guidance in relation to the response to Covid-19 for disabled people in supported living provision. The last guidance was withdrawn on 13 May 2020 and the Department of Health and Social Care has stated that further guidance in this area has been “under development” ever since.  That can be contrasted for example with the guidance on the admission and care of people in care homes, which was published on 2 April 2020 and has been updated on at least three occasions since then.

The missing guidance would explain, for example, the steps that supported living providers can take to maintain service delivery, the requirements around the use of PPE, and how to apply ‘household isolation’ principles whilst allowing essential family contact.  The uncertainty is causing real problems for disabled adults and their families, and comes within the context of ONS statistics which indicate that a higher proportion of disabled people than non-disabled people were worried about the effect of the coronavirus pandemic on their well-being (62.4% for disabled people compared with 49.6% of non-disabled people), and that disabled adults more frequently reported their well-being had been affected through feeling lonely in the last seven days (48.7%) in May 2020 compared with April 2020 (30.3%).  In May 2020, around 1 in 10 disabled people (11.9%) indicated feeling very unsafe when outside their home because of the coronavirus outbreak, compared with fewer than 1 in 25 non-disabled people (3.8%).

The issues caused by the absence of guidance in relation to those disabled people who receive supported living provision have been highlighted in the public domain by a number of charities.  For example, Edel Harris CEO of Mencap, gave oral evidence at the Women and Equalities Committee in Parliament on 24 June 2020 and raised the absence of guidance on supported living. The issue was also raised in Mencap’s submission to the Public Accounts Committee Inquiry: Readying the NHS and social care for the COVID-19 peak. Mencap and the Challenging Behaviour Foundation have informed this firm that its helplines have received numerous calls from families about the issues for people with learning disabilities who are in receipt of supported living provision in relation to the Covid-19 pandemic, for example around visiting where there is more than one person living in a service, as well as questions about testing.  We understand that a group of charities (the Challenging Behaviour Foundation, Mencap and the National Autistic Society) has written to the Government to express concern directly as to the absence of guidance in relation to supported living provision. However this has not led to any final guidance being produced.

We argue that the approach of the Secretary of State is irrational, discriminatory, and result in a breach of our client’s human rights. A redacted version of our letter before claim can be found here: Letter before claim to the Secretary of State

We have asked the Government’s lawyers to reply by 7 July 2020 and confirm that the guidance will be issued by 14 July 2020. Steve Broach of 39 Essex Chambers is instructed in the case.

UPDATE, 14 JULY 2020:

We have received a very disappointing reply from the Government’s lawyers, which states that due to “unfortunate human error” it took a week for our letter to “reach the desk of the individual responsible” despite our chasing them to make sure it was dealt with urgently, and that they need until 4pm Monday 20 July 2020 – in other words nearly 3 weeks since we sent our letter – to respond.  A reply of this nature only reinforces the concern we have raised, that adults with a learning disability are being treated as an afterthought during the Covid crisis.

We have carefully considered with our client whether to proceed to issue the case in court, but are concerned about whether that would be an appropriate use of public funds given that by the time that legal aid is granted and the case is issued, the Government’s lawyers will be only a few days from responding.  Regrettably we have therefore confirmed that we will wait until 20 July, but will bring this delay to the court’s attention should a satisfactory response not be forthcoming on that date.