NG (By His Litigation Friend, the Official Solicitor) v Hertfordshire County Council & Ors [2021] EWCOP 2

​​Appeal by the OS against a ruling which supported the health and welfare deputy's decision that the P's parents did not have a reasonable excuse to leave their homes to provide care to the P, pursuant to regulation 6(2)(d) of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020. Appeal allowed.

The P was being looked after 24/7 by a team of carers. He had contact with his mother and stepfather (who will be called his parents) but this stopped when the first Covid-19 lockdown was imposed in March 2020 because the P's deputy said that if their visits were to continue this would expose their care staff as well as the client to additional unnecessary risk, in which case they would have to withdraw their care. This decision was upheld by the judge who agreed, after looking at regulation 6(2)(d) of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, with the view of the deputy that neither parents were needed to provide essential care or assistance to the P and that on a proper interpretation of the regulation as well as its spirit, direct contact between the parents and the P was prevented by the lockdown rules. The OS submitted that the judge erred in law in three regards. Firstly, that his finding that the P was not receiving "shared care" and that a previous order was concerned with contact and not care was plainly wrong. Secondly, that the judge's interpretation of regulation 6(2)(b) was incorrect because it incorporated a test that the provision of care must be "essential" and it gave a priority to paid care over unpaid family care. Thirdly, that the deputy was wrong in saying that the test was whether the deputy's approach was reasonable, this being a matter of the interpretation of the regulation and not rationality.

The appeal was allowed on the first 2 grounds. The parents were beyond any doubt providing care to the P when they were spending time with him. At those times, which amount to approximately three out of seven days per week, they were his sole carers. The P requires 24/7 care by reason of his disability and at the times the parents were having contact with him, the care he needs was being provided by his parents and not by paid carers. On the second ground, the starting point when interpreting the regulation was to consider its words. Neither the opening words of regulation 6, nor the words in regulation 6(2)(d), provided for the care to be "essential". 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 the parents in this case.

Read the full text of the judgment on Bailii