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The Impact of Gardner & Harris v Secretary of State for Health and Social Care

In April 2022, the High Court concluded that the government’s policy to discharge patients from hospitals in to care homes in England at the start of the COVID-19 pandemic was unlawful.

This claim was initiated by two daughters, whose fathers had died after testing positive for COVID-19 in April and May 2020. More than 20,000 care home residents died as a result of COVID-19 in England and Wales between March and June 2020.

It was claimed that the Government, in their haste to free hospitals beds, did not consider the potential asymptomatic transmission of coronavirus. The policy implemented by the Government on 2 April 2020 stated that negative tests were not required prior to transfers or admissions into care homes. This did not change until 15 April 2020, potentially putting many vulnerable residents at risk.

This outcome comes ahead of the statutory public inquiry into the COVID-19 pandemic, in which a key investigation will be the management of the pandemic in care homes and other care settings. This inquiry is currently in its public engagement and consultation stage, so care providers should be aware of updates and the finalised report in due course.

It is unclear what this outcome means for the Health and Social Care sector. The Government has announced it will not appeal the decision, so it remains that their actions were unlawful. This could potentially be the starting point for mass claims made by families against the Government for relatives discharged into care homes during the period prior to 15 April 2020. If families were to make personal injury claims against individual care homes for deaths arising during this initial phase of the pandemic, then providers will undoubtedly want to point the finger back at the Government for forcing them to follow a policy over which care homes had no control.

The Health and Care Act 2022

On 28 April 2022, the Health and Care Act 2022 received Royal Assent. The Government has branded it the ‘most significant health legislation in a decade.’  Its aim is to ensure the NHS can rebuild from the pandemic and tackle the significant backlog. These recovery plans and reform are backed by £36 billion over the next three years through a Health and Care Levy.

The levy is supported by a temporary 1.25% increase in national insurance contributions which will go directly to support the NHS and equivalent bodies across the UK. From April 2023, a permanent 1.25% Health and Social Care Levy will be implemented and ringfenced to support health and social care bodies.

Despite its intention to create ‘more joined-up services’ that put the health and care system on a more sustainable footing, the Act is not without its shortcomings.

The Act introduces a cap of £86,000 on care home fees. In February 2022, the Institute for Fiscal Studies found that the cap will have a disproportionate effect on those with lower wealth and in poorer areas of the country. As an example, the cap would mean that residents in the Northeast would spend an extra 6% of their assets on care, compared with 1% in London.

Furthermore, most local authorities and clinical commissioning groups will be absorbed into new integrated care systems (ICS), which are partnerships between organisations that meet health and care needs across an area. The Secretary of State for Health and Social Care has also acquired significant new powers.

Increase in Funded Nursing Care

On 11 May 2022, the Government announced that the NHS funded nursing care would rise by 11.5% for 2022 to 2023. The standard weekly rate per person will rise to £209.19 per person and will be backdated to 1 April 2022.

Furthermore, in recognition for the additional time and work provided during the pandemic, providers will also see a retrospective funding uplift for 2021/22 by way of an additional £87 million for the health and social care sector.

Both announcements are a sharp contrast to the minimal increase in 2021, which put providers at risk of closure and impacted employment levels.

Practically, funded nursing care is paid directly to individual care homes. As such, care home providers should be mindful of this increase and diligently check that all residents are being charged the correct amounts. Failure to reflect this increase going forward may leave providers vulnerable to future claims for wrongly paid care home fees.