Members of 11KBW in judicial review of Government’s Covid policy in care homes


The Divisional Court (Bean LJ and Garnham J) has handed down judgment in R (Gardner and Harris) v Secretary of State for Health and Social Care, NHS England and Public Health England.

This was a claim for judicial review of the Government’s policies on care homes during the first wave of the pandemic.

The Court made a declaration that two of the policies under challenge, issued in March and April 2020, were unlawful because, in deciding to adopt the policies, the Secretary of State for Health and Social Care failed to take into account the relevant consideration of the risk to elderly and vulnerable residents from asymptomatic transmission. Accordingly the policies were irrational in failing to advise that where an asymptomatic patient (other than one who had tested negative for COVID-19) was admitted to a care home, he or she should, so far as practicable, be kept apart from other residents for 14 days.

The Claimants’ other grounds of challenge, including their claims under the Human Rights Act 1998, were dismissed. The claim against NHS England was also dismissed.

Gardner is one of the The Lawyer’s Top 20 Cases of 2022. The judgment has been covered by the BBC, Sky News, the Telegraph, the Guardian, the Daily Mirror and the Daily Mail.

The judgment is available here.

Jason Coppel KC, Joseph Barrett, Rupert Paines and Raphael Hogarth acted for the Claimants. Michael White acted at permission stage.

Jonathan Auburn KC, Heather Emmerson and Hannah Slarks acted for the Secretary of State and Public Health England.

Patrick Halliday acted for NHS England.