A landmark High Court judgment that the government failed to protect care home residents from Covid “opens the door” to compensation claims by victims’ families, lawyers say.
The government is likely to face further claims related to its mishandling of Covid-19, legal experts warn after a court ruled that it was unlawful for untested hospital patients to be discharged into care homes at the beginning of the pandemic.
Wednesday’s ruling disproved the claim by former health secretary Matt Hancock that a “protective ring” had been thrown around society’s most vulnerable during the pandemic, families say.
Mandatory testing was not introduced for hospital patients discharged into care homes until April 2020, by which point thousands of infected elderly people had passed on the virus to fellow residents. Between March and June 2020, there were 20,000 care home deaths linked to Covid-19, data shows.
The case was brought against the government by two grieving daughters after their fathers died from Covid in care homes in the spring of 2020.
Following the High Court verdict, lawyers now believe other families who have “suffered as a consequence of the inadequate policies” will be encouraged to make claims against the government.
“The case gives an early indication that notwithstanding the unprecedented challenges faced by the government and public authorities, courts will be prepared to closely scrutinise the rationality of decision-making,” said Jonathan Landau, a barrister at 5 Essex Court with expertise in healthcare regulation and inquests.
“The judgment may well spur claims in respect of other matters as the pandemic progressed, including availability of PPE and guidance on visiting care homes.”
By not requiring the transferred hospital patients to test negative for Covid, the High Court ruled, the government failed to consider the risk to vulnerable residents from non-symptomatic transmission in the early months of the pandemic.
Lord Justice Bean and Mr Justice Garnham said that, despite “growing awareness” of the risk of non-symptomatic transmission throughout March 2020, there was no evidence that Mr Hancock addressed the risk to care homes.
Jodi Newton, a senior associate at Osbornes specialising in clinical negligence, said the High Court’s judgement was “vindication for the families whose loved ones were put to avoidable risk and who, sadly, died as a consequence”.
She added: “It is likely that the court’s decision will open the door to families to seek compensation for injuries suffered as a consequence of the inadequate policies and I believe that it is the government which should take responsibility for the families’ losses.
“It also sets a welcome precedent to others who wish to challenge the government in the courts over its handling of the pandemic.”
Labour’s Wes Streeting, the shadow health secretary, said ministers “broke the law” and “cannot claim to have acted to save lives”.
A spokesperson for Mr Hancock said Public Health England had failed to tell ministers what they knew about asymptomatic transmission and he wished it had been brought to his attention sooner.
Downing Street has acknowledged that further legal claims could now follow over the government’s handling of the Covid-19 pandemic.
The prime minister’s official spokesperson said: “That would be entirely a matter for those families and not one for us.”
Asked whether there could be a mass compensation payout, the spokesperson added: “I’m not going to get into speculating on what further action people may or may not take.
“The Department of Health is considering the judgment carefully ... the court itself recognised the difficult and unique circumstances the government faced in the early part of the pandemic.”
