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Care and Need under the Coronavirus Regulations

Posted on 22 January 2021

In the case of NG v Hertfordshire County Council & Ors [2021] EWCOP2, the Court of Protection considered the meaning of 'care' in the context of the COVID-19 restrictions implemented during the first national lockdown which began in March 2020.

The question before the court in this appeal was whether providing care to NG constituted a "reasonable excuse" for NG's mother and step-father to leave their respective homes for the purposes of regulation 6(2)(d) of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (the "Regulations") in circumstances where NG had 24/7 paid carers.

NG is a 30-year old who has moderate to severe autism and whose ability to communicate is severely impaired. NG requires 24/7 care. Until September 2017, NG's mother and step-father (the "Parents") were his deputies for welfare and property and affairs and NG's care was provided by a combination of the Parents and paid carers (funded by Hertfordshire County Council). NG lives in his own flat so carers would go to his flat.

Since 2017, there have been proceedings relating to contact between NG and his step-father (NDG) which involved a dispute between the Parents. Those proceedings resulted in a judgment of HHJ Waller on 6 July 2018 which refers to NDG having "contact" with NG. Whether the Parents were providing 'care' to, or having 'contact' with, NG became a significant issue in the appeal.

In the wake of HHJ Waller's judgment, a new deputy for health and welfare and property and affairs was appointed for NG. On 23 March 2020, the new deputy emailed the Parents stating that he was suspending contact with NG except for his paid carers due to the Government's announcement of the first national lockdown. From 23 March 2020 until September 2020, the Parents had no contact with NG whose care was provided by the 24/7 paid carers.

NDG issued an application in the Court of Protection challenging the new deputy's decision to suspend contact with NG for everyone but his paid carers. The Official Solicitor (the "OS") supported NDG's application. At first instance, HHJ Vavrecka held that the Parents were not providing care to NG because NG had 24/7 paid care. Mrs Justice Lieven granted permission to appeal the first instance decision on 6 November 2020.

The appeal was brought was brought by the OS. On appeal, the issue was the construction of the Regulations. The appeal was heard before Mrs Justice Lieven on 3 November 2020. The OS argued that the first instance judge erred (1) in finding that the Parents were not providing "shared care" to NG and that HHJ Waller's order related to 'contact' and not 'care' and (2) in his interpretation of the Regulations as he had incorporated a test that the care must be "essential" which gave priority to paid care over care provided by family. A third ground of appeal was initially pursued but was subsequently dropped.

In relation to the first ground, the OS made the point that on average the Parents provided 3 out of 7 days' care for NG (during which time the Parents provided all of NG's care needs). It was also noted by the OS that prior to March 2020 NG had not been provided with a 24/7 care package by the local authority. The effect of HHJ Waller's order was to move away from NG's mother organising NG's care but the Parents continued to share responsibility for providing care to NG with the paid carers.

On the second ground, the OS argued that there was no requirement in the Regulations for the care being provided to be "essential" or for the provision of paid care not to be an option. It was submitted that an "individualised assessment" (rather than a blanket approach) is required when interpreting the Regulations as to whether a person requires care.

The local authority argued that the Parents were not the Primary carers and were being involved in NG's care arrangements in relation to ground one. As regards ground two, the local authority argued that the "need" referred to in the Regulations should be interpreted as requiring a "necessity" and that in relation to the provision of care, that care must be "essential". The local authority also suggested that NG's subjective needs should be the focus so that if it was possible for the care to be provided by the paid carers (rather than the Parents) then there was no need for the Parents to provide the care within the meaning of the Regulations.

The OS' appeal was allowed on grounds one and two. In her judgment, Mrs Justice Lieven held that the Parents were responsible for the shared care of NG and that there was no requirement under the Regulations for the provisions of care to be "essential". In paragraph 48 of Mrs Justice Lieven considered the extent to which there was a distinction between care which could be provided by the Parents and that provided by the paid carers. It was held that NG's 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".

The court also referred to the Court of Appeal's decision in R (Dolan) v Secretary of State for Health and Social Care [2020] EWCA Civ 1606 in which the Court set out the background to the Regulations and concluded that the Regulations did interfere with article 8 of the European Convention on Human Rights but that it was justified for the protection of health under article 8(2). Although Dolan was helpful to understanding the background to the Regulations, the Court concluded that it was of limited assistance in interpreting the regulation 6(2)(d) of the Regulations.

Turning to the question of what was meant by "care" and whose perspective the "need" should be considered from in the context of the Regulations, Mrs Justice Lieven concluded: "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. [The Parents] 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".

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