Ministers ‘not sitting in ivory tower’ when pandemic care home decisions made, High Court told

Ministers were not sitting in an “ivory tower” when decisions were being made about how to protect care home residents during the early stages of the coronavirus pandemic, the High Court has heard.

Sir James Eadie QC told Lord Justice Bean and Mr Justice Garnham on Thursday that everyone in the Department of Health and Social Care, from then health secretary Matt Hancock down, was involved in “constant” meetings and discussions – and the “science” was fed in at every stage.

He was speaking at a hearing in London after two women whose fathers died complained about the Government’s “failure” to protect care home residents during the Covid outbreak.

Cathy Gardner and Fay Harris are taking legal action against current Health Secretary Sajid Javid, NHS England and Public Health England.

They want declarations that unlawful decisions were made.

Lawyers representing Mr Javid, NHS England and Public Health England are fighting the claim.

Sir James, who is representing the Health Secretary and Public Health England, told judges how policy had been “discharged” in March 2020.

“Officials and decision-makers were aware of the extremely difficult decisions that they had to make, on the right basis, to protect care homes,” he said.

“They didn’t just produce a policy and then just sit back on their hands.”

He added: “Everyone was reviewing all the time.”

Sir James said decision-makers were trying to get the right balance so the “whole care system would not be put at risk”.

He said everyone “from the Secretary of State down” was involved and told the judges: “The idea that in some way you should infer that ministers were sitting in an ivory tower waiting for a beautifully crafted statement things were being done is, we say, entirely unfair.”

Sir James told the court that the lawfulness of decisions being challenged must be assessed in the context of an “unprecedented challenge” – particularly in March and April 2020.

He said the women’s claim should be dismissed.

Eleanor Grey QC, representing NHS England, has also argued that the claim should be dismissed.

A barrister representing the two women told the judges that between March and June 2020 – when Mr Hancock was health secretary – more than 20,000 elderly or disabled care home residents died from Covid-19 in England and Wales.

Dr Gardner, 60, who has an academic qualification and is from Sidmouth, Devon, said her father, Michael Gibson, died at the age of 88 in a care home in Bicester, Oxfordshire, in April 2020.

Ms Harris’s father, Donald, also died in a care home.

A lawyer said the case could have wide implications.

Michelle Penn, who specialises in care and occupational disease claims at law firm BLM, said: “This feels like a dress rehearsal for the forthcoming public inquiry, which of course will also focus on the care sector, so findings here may have a significant impact.”

A Government spokeswoman said in a statement outside court: “Every death is a tragedy and we worked tirelessly to protect the public from the threat to life and health posed by the pandemic and specifically sought to safeguard care homes and their residents.

“We have provided billions of pounds to support the sector, including on infection and prevention control, free PPE and priority vaccinations – with the vast majority of eligible care staff and residents now vaccinated.”

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