As many commentators predicted, a judicial review challenge is shortly to be launched challenging the new Regulations (The Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021), which come into force from 11 November 2021 requiring registered care home operators in England to ensure that staff are fully vaccinated against Covid-19 unless medically exempt, subject to a short list of exemptions.
A copy of the 14 page pre-action protocol letter prepared by Jackson Osborne employment lawyers has been served on the Government and is now in the public domain.
The letter is detailed in its analysis of the factual background around Covid-19 vaccinations and care homes and sets out a range of arguments challenging the lawfulness of the 2021 Regulations on six grounds. In brief, they are:
- That they are ultra vires, being incompatible with their parent Act and Parliamentary intent in passing it;
- They amount to a disproportionate interference with the right to the personal autonomy of front-line and non-front line care workers, contrary to Article 8 of the European Convention on Human Rights (ECHR) which protects your right to respect for your private and family life;
- They amount to a disproportionate interference with Article 8 rights in conjunction with Article 14 (protection from discrimination), by reason of indirect discrimination on the ground of race and/or sex for front line and non-frontline care workers respectively;
- That the vaccination requirement is irrational – in the absence of pre-authorisation testing for their ability to reduce transmission and where the evidence shows vaccines do not materially reduce transmission; by the inclusion of some classes of people and not others; and by providing for a review within a year rather than a shorter period;
- That they were made in breach of the duty of sufficient inquiry; and
- That they were made in breach of the duty to consult.
Will the challenge be successful?
The implementation of these Regulations has raised a number of serious concerns within the care sector around recruitment of staff, with the policy creating a two-tiered system. Care home staff who work in residential care who do not want to be vaccinated and are dismissed are likely to transfer into home care, supported living or the NHS. Care England, the leading representative body for independent care services in England yesterday wrote to the Minister of State for Social Care at the Department of Health and Social Care to emphasise the serious and growing concerns in relation to the absence of guidance around exemptions, the wider consultation which will encompass the wider social care sector, the NHS and flu vaccine.
There are currently over 100,000 vacancies in the sector and even a small number of staff refusing the vaccine could have a detrimental impact on rotas and service delivery. Staff are also being put off from applying for roles due to vaccination being a condition of employment with many job adverts producing no applicants.
We expect that formal proceedings will be issued in the near future. So, will the judicial review be successful? That’s hard to say - but what is very clear is that care home operators should continue implementing the Department of Health and Social Care’s operational guidance to ensure that they meet the key dates of 16 September (last date for care home workers to get their first dose so they are fully vaccinated by the time the Regulations come into force) and 11 November (when the Regulations come into force). This means continuing to have conversations with staff about the Regulations to persuade them to be vaccinated and issuing notice of dismissal to those who refuse and are not medically exempt. Such decisions can be overturned if the legal challenge ultimately succeeds.
We will provide updates on the judicial review case as it unfolds.
In the meantime, the Government’s planned reforms to social care have been announced today (7 September 2021), including the resurrection of the cap on care costs together with a UK-wide 1.25 per cent Health and Social Care Levy based on National Insurance contributions (NICs) ring-fenced to fund the investment in health and social care set out in the plan.
Compulsory vaccinations in care homes webinar: Monday 20 September 2021
Don't miss our next Health and Care Conversation where Duncan Astill and Stuart Craig will look at Compulsory Covid-19 vaccination of people working/deployed in care homes. We will be joined by Simon Antrobus QC and Sandesh Singh of Crown Office Chambers.
Register here for this event.