The (surprisingly) small body of reported cases relating to COVID-19 (representing the tip of a rather larger iceberg) has been added to in NG v Hertfordshire County Council & Ors  EWCOP 2, a decision of Lieven J concerning a 30 year old man, NG, with moderate to severe autism, mild learning disability and severe communication difficulties.
For many years, NG had had a care package arranged by his mother and step-father, funded by direct payments made by Hertfordshire County Council. At all material times, NG had lived in his own flat with carers coming there; he required 24 hour supervision and care. A dispute which started in 2017 relating to contact between NG and his step-father was resolved by the Court of Protection in June 2018; following his judgment, a third person, HG, was appointed as deputy for health, welfare, property and affairs. On 23 March 2020, in light of the lockdown, HG suspended all contact with NG except for his carers (in circumstances where those carers had said that if family visits were to continue they would have to withdraw care as this would expose their care staff and their client to unnecessary risk). Between then and September 2020, his parents had no contact with him, and his care was provided entirely by paid carers.
A challenge to the decision was heard in June 2020, HHJ Vavrecka upholding the deputy’s decision. In his judgment HHJ Vavrecka held that whilst when NG was with his step-father he was being provided with care, “this was an arrangement for contact and has to be seen in the context of there being a care package which provided 24/7 care for NG. The Deputy quite properly in my view come to the conclusion that the parents did not need to ‘provide care and assistance’ given the care package (with adjustments) would ensure all of NG’s care needs were met.” Further, HHJ Vavrecka held that “[i]n looking at paragraph 6 of the Regulations, and whether NDG needs to ‘provide care’ within the terms of regulation 6, the factual position and the legal framework are both relevant. The decision of HG and the restrictions placed on contact by deputy and Home Instead were in my judgment appropriate and proper, and reflect a reasonable reading of the regulations and the contact order of HHJ Waller. The view that direct contact between NG and NDG is prevented by the “lockdown” rules in my judgment properly interprets the wording of the regulation as well as its spirit. I do not accept the submission that the Deputy has misinterpreted the regulations.”
The Official Solicitor appealed to Lieven J. As she identified, the principal issue turned upon the interpretation of the lockdown regulations. However, she had little hesitation in concluding that HHJ Vavrecka had been wrong to find that NG’s parents were not providing care to him when they were spending time with him, the factual position being that his parents had been providing him with a significant part of his care throughout his life, and in particular since he became an adult. She noted that there was “so far as I am aware, no magic in the words ‘shared care,’ it is merely a reflection the reality of the care that is being provided” (paragraph 43).
Turning to the exercise in statutory interpretation, Lieven J was concerned with the first lockdown restrictions (the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, but her conclusions are equally applicable to those applicable at the time her judgment was delivered (The Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020, as amended by The Health Protection (Coronavirus, Restrictions) (No. 3) and (All Tiers) (England) (Amendment) Regulations 2021: as to which, see here). Looking at the Regulations, the critical wording was in relation to the definition of “reasonable excuse” for leaving home as including having “the need […] to provide care or assistance, including relevant personal care within the meaning of paragraph 7(3B) of Schedule 4 to the Safeguarding of Vulnerable Groups Act 2006, to a vulnerable person, or to provide emergency assistance” (contained, in the first Regulations, in Regulation 6; in the current Regulations in relation to Tier 4 areas – i.e. as at January 2021 – everywhere in England, in materially similar form in paragraph 5(c) of Schedule 3A to the All Tiers Regulations).
Lieven J noted that the word “need” in the Regulations varied according to the different reasonable excuse limbs, although in each case there had to be a need as opposed to simply a subjective desire. As she noted:
47. There can be no possible doubt that in enacting the first restrictions Regulations the Government was placing a very great emphasis on the importance of people staying at home and not mixing unnecessarily and without very good reason. However, it is equally clear that the Government intended to ensure that those who needed to leave their home to provide care or assistance to a vulnerable person should be allowed to do so. In this context it is important to have in mind that there are an enormous number of family carers providing care to persons outside their household. It is essential that care can continue to be provided throughout the course of the pandemic. The fact that it would be theoretically possible, or indeed practically possible, for that unpaid family care to be replaced by paid care does not mean that the family care is not meeting a need.
Lieven J then put herself in the shoes of NG himself to ask what his needs were:
48. If one considers the need for the care from NG’s perspective then, in my view, it is clear that he needs parental care as well as paid care. His 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. It is wrong in my view to focus simply on the fact that his physical needs can be met by paid care. As NDG and the OS submitted, NG’s best interests must be relevant to meeting his needs and those best interests include being cared for, at times, by his parents.
By definition, she found, the fact that person is delivering care pursuant to a court order to a family member must amount to a reasonable excuse to leave the home (paragraph 49). Conscious, perhaps, that the number of situations in which this might be relevant was only the tip of a much greater iceberg, Lieven J looked at the broader issues in play in interpreting the regulation:
50. […] it is also important to have regard to article 8 ECHR and the protection of family life, subject to the justifications in article 8(2). A ban on family members being able to provide care to loved ones, in any circumstances where paid care is available, would be a very serious interference with the right to family life. That does not mean that such an interference would be incapable of justification, but it does in my view mean that a court should be very careful before reaching an interpretation which would give such precedence to paid over family care. There is nothing in the first restrictions Regulations, Guidance, or any Government document which would suggest the Government intended to prioritise paid over family care in this way or to interfere with article 8 rights in such a broad manner.
The effect of the approach that had been taken below and that was being urged upon her, however, would create the effect of giving a priority to paid care:
51. […] 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. Both NDG and AG 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.
Finally, Lieven J found that her interpretation was supported by the principle against doubtful penalisation. In circumstances where breaching the requirement not to leave home without a reasonable excuse would give rise to a criminal offence, Lieven J held that “[i]f the care had to be essential, or there was a priority given to paid over unpaid care, then the first restrictions Regulations needed to make that clear. The wording of regulation 6(2)(d) is broad and unspecific in respect to the nature of the care. It would therefore be wrong to create a criminal offence for someone providing care in the circumstances of AG and NDG” (paragraph 52).
What is perhaps a little odd about this judgment at first reading is that it focuses so much on the lawfulness (or otherwise) of the actions of NG’s parents, when NG’s deputy had stopped contact on the basis of their analysis of NG’s best interests (see paragraph 10). However, on the basis of the summary of the judgment of HHJ Vavrecka given by Lieven J it appears that the deputy also then took the view that such contact would give rise to criminal offences on the part of his parents. On one view, it is not obvious that the deputy could properly have taken that factor into account save and unless it could have been said not to be in NG’s best interests for his parents to be subject to (potential) prosecution in leaving their home to come and have contact with him. The deputy might, perhaps, have been thinking that the option of his parents coming to see him was simply not an available option – but that does not seem to have been the reasoning that they employed, although there is a hint in paragraph 10 of the judgment that they had in mind something rather different, namely that, if the parents came to see NG, the care provider would withdraw care (a point to which I return).
Be all that as it may, the fact that HHJ Vavrecka then founded himself (in part) upon the fact that direct contact was prevented by the lockdown rules mean that Lieven J had to ask herself the question of whether this conclusion was in fact correct.
Lieven J’s interpretation of the relevant provisions in the lockdown regulations is clearly correct, although it is equally important to emphasise her observations at paragraph 47 as to the underlying purpose of the regulations (a purpose equally, if not more, relevant in January 2021 than it was in relation to those in play in March 2020).
Although Lieven J only touches upon this in passing, her interpretation is also then relevant to the other side of the coin in both the first lockdown regulations and the January 2021 iteration – i.e. the ban upon indoor gatherings subject to exceptions. If NG’s parents have a reasonable excuse to be away from the place where they live to care for him, they could equally not be subject to a direction under (now) Regulation 9(3) of the All Tiers Regulations requiring them to stop gathering indoors with him to provide care to him.
On one view, all Lieven J’s judgment does is to clear the decks to answer a question which was not asked on the face of the judgment – namely whether, even if it were lawful for his parents to visit, such visits would actually be in NG’s best interests. Notwithstanding the obvious benefits identified by Lieven J to such visits in terms of providing NG with the emotional components of care, the care provider had previously indicated that it would withdraw care if they did so because of the risk to their staff (and to NG himself). That Lieven J did not have to grapple with the difficult consequences of this (including as to the potential obligations of the local authority) rather suggests that the care provider must have changed its stance.
Finally, and more broadly, the observations made by Lieven J at paragraphs 48 and 51 about the different components of care are ones that are of much wider resonance and a welcome reminder of the importance of looking at the whole picture.