Fifteenth Report - Care homes: Visiting restrictions during the covid-19 pandemic
- HC No.
- —
- Published
- 5 May 2021
- Items
- 14
- Response
- Response document linked: Second Special Report - Care homes: Visiting… Read government response ↗
Select Committee · Human Rights (Joint Committee)
The Government's response to covid-19: human rights implications of long lockdown
Status: Closed
Opened: 30 Nov 2020
Closed: 6 May 2022
6 recommendations
24 conclusions
2 reports
Inquiry scope
This inquiry will examine the impact of lockdown restrictions on human rights and whether those measures only interfere with human rights to the extent that is necessary and proportionate. In particular, we are interested in the impact of long lockdown on certain communities. Read the call for evidence for more detail about the inquiry .Reports
Fourteenth Report: The Government response to covid-19: fixed penalty notices
- HC No.
- HC 1364
- Published
- 27 Apr 2021
- Items
- 16
- Response
- Response document linked: First Special Report - The Government respon… Read government response ↗
Recommendations & Conclusions
The number of FPNs issued by the police in England was at its highest during...
Conclusion · source text
The number of FPNs issued by the police in England was at its highest during the January-March 2021 lockdown. We hope that the police are still engaging, explaining and encouraging rather than moving quickly on to issuing fines which can penalise and potentially criminalise a wide range of behaviour.
Ministry of Justice
In order to understand the impact of the enforcement of the coronavirus Regulations on businesses...
Conclusion · source text
In order to understand the impact of the enforcement of the coronavirus Regulations on businesses and the people who own, work at, or visit them, local authorities must publish data on the number of FPNs issued by individuals to whom they have designated powers. The data should be collated by the Ministry of Housing, Communities and Local Government and published regularly. (Paragraph 38) Is there unlawful discrimination in the use of FPNs?
Ministry of Justice
The way that FPNs have been used under coronavirus Regulations has disproportionately penalised some groups...
Conclusion · source text
The way that FPNs have been used under coronavirus Regulations has disproportionately penalised some groups over others. Given the human rights engaged by the enforcement of the coronavirus Regulations, the disproportionate use of FPNs seems likely to engage the principle of non-discrimination in the enjoyment of other human rights (Article 14 ECHR).
Ministry of Justice
The Government must commission research and analysis of the FPNs that have been issued to...
Recommendation · source text
The Government must commission research and analysis of the FPNs that have been issued to people by a range of characteristics including age, gender, race and social deprivation. Such analysis must look into the reasons behind such variable rates of enforcement amongst different groups. If this analysis finds that the approach to enforcement, and to issuing FPNs, is discriminatory, swift action must be taken to address this. (Paragraph 49) Wrongly issued FPNs
Ministry of Justice
CPS data shows that a significant proportion of the cases which go to open court...
Conclusion · source text
CPS data shows that a significant proportion of the cases which go to open court are incorrectly charged. These cases will have been through more safeguards than those penalties dealt with by payment or through the single justice procedure. The NPCC must undertake a review to understand why police are issuing so many incorrect FPNs and then take appropriate action based on that review to prevent such mistakes from occurring in the future.
Ministry of Justice
It is astonishing that the Coronavirus Act is still being misunderstood and wrongly applied by...
Conclusion · source text
It is astonishing that the Coronavirus Act is still being misunderstood and wrongly applied by police to such an extent that every single criminal charge brought under the Act has been brought incorrectly. While the coronavirus Regulations have changed frequently, the Act has not, and there is no reason for such mistakes to continue.
Ministry of Justice
Far more must be done by Government and police forces to ensure officers understand the...
Conclusion · source text
Far more must be done by Government and police forces to ensure officers understand the Regulations they are asked to enforce. This is crucial to ensure that there is no punishment without law (Article 7 ECHR) and no unjustified interference with individual’s right to family and private life (Article 8 ECHR). (Paragraph 62) 34 The Government response to covid-19: fixed penalty notices
Ministry of Justice
As we noted in our April 2020 Chair’s briefing note, and recommended in our September...
Conclusion · source text
As we noted in our April 2020 Chair’s briefing note, and recommended in our September 2020 report, more care must be taken by the Government to distinguish between advice, guidance and the law. The public cannot be expected to know the law if the guidance does not reflect the law, and politicians’ statements match neither. It is disappointing that the problem has persisted. (Paragraph 67) Inadequate review and appeal process
Ministry of Justice
The nature and extent of any police reviews prior to the FPN being sent are...
Conclusion · source text
The nature and extent of any police reviews prior to the FPN being sent are not transparent. There needs to be a clear internal review process in place before the FPN is issued. Without such a consistent internal review process there are significant risks of the law being misapplied and people penalised for what is actually lawful conduct.
Ministry of Justice
An informal, unpublicised and seemingly ad hoc process is neither an adequate nor sustainable way...
Conclusion · source text
An informal, unpublicised and seemingly ad hoc process is neither an adequate nor sustainable way of delivering justice. It will necessarily result in unequal outcomes between those who have legal representatives who seek out ways of making such informal approaches to local police forces, and those who do not. Moreover, it appears to rely entirely on legal representatives doing work, often pro bono, to rectify mistakes that the police are not pro-actively rectifying themselves.
Ministry of Justice
The current review processes are not clear, consistent, or transparent.
Recommendation · source text
The current review processes are not clear, consistent, or transparent. They are inadequate. The CPS figures show large numbers of incorrectly issued penalties slip through those nets. The Government must now introduce a means of challenging FPNs by way of administrative review or appeal.
Government response · verbatim
Throughout the pandemic the police have used the 4Es approach: engaging with individuals who are not following the rules, explaining the rules to them and encouraging them to comply before moving on to enforce the law. The police utilise the 4 E’s approach so FPNs are issued after compliance has been encouraged. 2 https://news.npcc.police.uk/releases/independent-analysis-of-coronavirus-fines-published The government believes there are substantial safeguards in place around the issuing of FPNs, the majority of which are set at £200, or £100 upon early payment, with opportunities for individuals to also contest them where appropriate. Where enforcement of the restrictions is required, police forces in England have robust review procedures in place to ensure FPNs are issued in compliance with Public Health Regulations. Each FPN issued is subject to at least two evidential reviews before a person is prosecuted to ensure that it complies with the regulations and that there is sufficient evidence to meet the necessary threshold. When an FPN is to be issued, the vast majority of forces will undertake a discretionary initial force-level review before referring to the ACRO Criminal Records Office (the body that administers the FPN regime) where it is reviewed, ensuring compliance with regulations before the formal FPN is issued. The police have no power to enforce payment of an FPN, and so there are no consequences for the recipient against which they might appeal. It is a matter for the respective force to consider how to deal with any representations received in relation to an FPN. A person can however judicially review the decision to issue an FPN. If the recipient fails to respond to the original FPN letter within 28 days of it being issued, the originating force will conduct a final review. Where the originating force believes it has sufficient evidence to prosecute and that it is in the public interest to do so, it will issue Single Justice Procedure (SJP) proceedings. The recipient can plead guilty or contest where the burden of proof is on the prosecution to prove the breach. A recipient can also choose to ignore the SJP charge, which will result in the case proceeding via the SJP without their input.
Read full response →
Ministry of Justice
We are concerned that the single justice procedure is an inadequate tool to provide the...
Conclusion · source text
We are concerned that the single justice procedure is an inadequate tool to provide the necessary fair trial protections for people accused of offences that are so poorly understood and lacking in clarity and where so many mistakes have been made by enforcement authorities. (Paragraph 87) The size of the penalties
Ministry of Justice
A system that punishes poorer people more severely than those with greater economic means is...
Conclusion · source text
A system that punishes poorer people more severely than those with greater economic means is inherently unfair and unjust. The whole FPN process seems to disproportionately impact the least well off.
Ministry of Justice
We have significant concerns that large fixed penalties, such as those of £10,000, which are...
Conclusion · source text
We have significant concerns that large fixed penalties, such as those of £10,000, which are awarded irrespective of the individual’s circumstances, risk being inherently unjust. Given all that we know about the flaws in the system of enforcement of the coronavirus Regulations, it is woefully inadequate simply to assert that such FPN fines can be contested in the course of a criminal prosecution for those willing to run the risk of having a criminal record. This can seriously damage the future prospects of those convicted. Such an approach risks casualising criminality for so many, without any adequate appreciation of the significance or proportionality of such measures.
Ministry of Justice
The Government may only interfere with human rights to the extent necessary and proportionate.
Recommendation · source text
The Government may only interfere with human rights to the extent necessary and proportionate. The Government should explain and justify why it considers that a £10,000 fine is proportionate (i) for anyone, and (ii) for an individual with limited The Government response to covid-19: fixed penalty notices 35 financial means. The Secretary of State should give careful consideration as to whether a more graduated approach to FPN amounts might be more proportionate. The Secretary of State should furthermore carefully consider whether more can be done to limit the discriminatory approach of the current system that criminalises the poor over the wealthy.
Ministry of Justice
There must be a comprehensive review of all FPNs issued under the coronavirus Regulations as...
Recommendation · source text
There must be a comprehensive review of all FPNs issued under the coronavirus Regulations as soon as is feasible. We have significant concerns about the validity of the FPNs issued, the inadequacies of the review and appeal process, the size of the penalties, and the criminalisation of those who cannot afford to pay. It is also difficult to see why a breach of the coronavirus Regulations would be relevant to someone’s future employment prospects or ability to travel to certain countries. We recommend that consideration be given to removing convictions under the coronavirus Regulations from criminal records. (Paragraph 95) 36 The Government response to covid-19: fixed penalty notices Declaration of interests Lord Brabazon of Tara • No Interests declared Lord Dubs • No relevant interests to declare Lord Henley • No Interests declared Baroness Ludford • No relevant interests to declare Baroness Massey of Darwen • No relevant interests to declare Lord Singh of Wimbledon • No Interests declared The Government response to covid-19: fixed penalty notices 37
Ministry of Justice
Since the start of the pandemic, official guidance on care home visiting has prioritised the...
Recommendation · source text
Since the start of the pandemic, official guidance on care home visiting has prioritised the Government’s obligation to protect residents’ right to life (Article 2 ECHR), even where this has severely impacted on the right to respect for private and family life (Article 8 ECHR). While this may have been understandable in the short term, it is unacceptable to place draconian restrictions on the right to family life of those in residential care and their families for over a year. Of course the Government should seek to protect residents in care homes, but it also has an obligation to uphold their right to family life and ensure that it is facilitated in practice.
Ministry of Justice
Close family members who provide care can be their relatives’ most important care givers.
Conclusion · source text
Close family members who provide care can be their relatives’ most important care givers. They provide the emotional and physical support that a paid carer could never hope to replicate. The Government’s guidance over the last year has not adequately acknowledged the importance of families to residents’ wellbeing. It was wrong to deny essential care givers the right to see their relatives, especially when they could have played a crucial role in supporting the over-stretched care home staff during the crisis. Care home providers say they understand the importance of families to residents’ care and wellbeing; they must show this in practice.
Ministry of Justice
The Department for Health and Social Care has not consulted widely enough when preparing new...
Conclusion · source text
The Department for Health and Social Care has not consulted widely enough when preparing new guidance for the care home sector or provided sufficient notice to families and providers when announcing significant changes to visiting procedures. Greater involvement for residents groups in the preparation of guidance would ensure that strong advocates for the right to private and family life are heard when key decisions are made.
Ministry of Justice
There are clear benefits to residents’ health and wellbeing from being able to visit a...
Conclusion · source text
There are clear benefits to residents’ health and wellbeing from being able to visit a park or sit outside at a hospitality venue. There are specific concerns about the impact of isolation on younger residents with learning disabilities from their valued roles in the community. However, Government guidance requiring residents to self- isolate for 14 days if they choose to leave their care home—for even the shortest period—is excessive and clearly designed to discourage such visits.
Ministry of Justice
It is difficult to understand how this 14-day self-isolation rule can be a proportionate interference...
Conclusion · source text
It is difficult to understand how this 14-day self-isolation rule can be a proportionate interference with the rights of residents and their families to respect for private and family life under Article 8 ECHR. In many cases, it is likely to give rise to difficult questions of deprivation of liberty under Article 5 ECHR. It is not obvious how the resulting deprivation of liberty can be said, at present, to be necessary and proportionate for purposes of Article 5 ECHR.
Ministry of Justice
Further, it is doubtful that self-isolation imposed on the basis of guidance would be ‘in...
Conclusion · source text
Further, it is doubtful that self-isolation imposed on the basis of guidance would be ‘in accordance with the law’ and, therefore, were such self-isolation to be imposed, it does risk constituting an unlawful interference with residents’ right to liberty and right to family life.
Ministry of Justice
It is right that the Government has committed to reviewing this guidance in May
Conclusion · source text
It is right that the Government has committed to reviewing this guidance in May
Ministry of Justice
The Government and care home providers have had a difficult job balancing the right of...
Conclusion · source text
The Government and care home providers have had a difficult job balancing the right of residents to a family life with the need to protect the right to life of all residents and staff. However, many providers have erred too far on the side of caution, to the significant detriment of residents and their families. Both the Government and providers should have done more to recognise the importance of quality of life for care home residents.
Ministry of Justice
We admire the hard work and dedication of the thousands of care staff across the...
Conclusion · source text
We admire the hard work and dedication of the thousands of care staff across the country who do such a brilliant job in very difficult circumstances.
Ministry of Justice
It is right and proper for the Government to be challenged on the content of...
Conclusion · source text
It is right and proper for the Government to be challenged on the content of its guidance, as we have done so before and do so again here. But the Government’s guidance should not be second guessed or selectively applied by care home providers, absent a cogent and clearly explained basis for doing so. If care homes are to depart from the guidance at any point, they must do so on the basis that it sets the floor, rather than the ceiling, in terms of supporting residents and their families to enjoy their Article 8 ECHR rights. It is also important that there is clarity as to whether national guidance should take priority over local guidance from a Director of Public Health.
Ministry of Justice
It is clear that public authorities do not have a clear enough view of the...
Conclusion · source text
It is clear that public authorities do not have a clear enough view of the care home sector’s adherence to the guidance on visiting. It was astonishing to hear the Care Quality Commission (CQC) claim that they were not aware of any care home in England that was not following the guidance, despite clear evidence to the contrary from residents and their families. The CQC needs to get a grip on what is going on in the care home sector and put in place more robust processes to monitor adherence with the Government guidance by the end of May 2021.
Ministry of Justice
The CQC urgently needs to establish better processes for collecting data and monitoring the right...
Conclusion · source text
The CQC urgently needs to establish better processes for collecting data and monitoring the right of care home residents to receive visitors. It should collect and publish live data on levels of visiting in every care home, the number of complaints that have been received and how these have been resolved. The CQC should immediately look at a sample of care homes to help it assess the sector’s compliance with the government’s visiting guidance.
Ministry of Justice
It can be very difficult and intimidating for residents and families to escalate complaints about...
Conclusion · source text
It can be very difficult and intimidating for residents and families to escalate complaints about care home providers, particularly in small care settings. This is acknowledged by both the Minister and CQC. The Government and CQC must urgently work together to implement a new process for residents that guarantees anonymity and provides families with confidence that their relatives will not face retaliation for raising valid concerns.
Ministry of Justice
In February of this year we called for legislation to require that individualised risk assessments...
Recommendation · source text
In February of this year we called for legislation to require that individualised risk assessments are undertaken for each resident, and to ensure that procedures are in place so that such assessments can be queried where they have omitted relevant factors or not made adequate efforts to consider how covid-safe visits might be facilitated. Since then, it has become apparent that our fears were well-founded. We have prepared a draft statutory instrument to address these concerns; the Government must now lay it before Parliament. (Paragraph 70) 26 Care homes: Visiting restrictions during the covid-19 pandemic
Ministry of Justice
Oral evidence sessions
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| Date | Session and witnesses | Source |
|---|---|---|
| 21 Apr 2021 |
Oral evidence session
Dr Éamonn O'Moore · Public Health England,
Helen Whately MP, Minister of State (Minister for Care), Department of Health and Social Care · Department of Health and Social Care,
Kate Terroni · Care Quality Commission,
Peter Wyman CBE, DL · Care Quality Commission
|
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| 14 Apr 2021 |
Oral evidence session
Jenny Morrison · Rights for Residents,
Professor Martin Green · Care England,
Zac Taylor · Mencap
|
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| 24 Feb 2021 |
Oral evidence session
Ben-Julian Harrington · Essex Police,
Gracie Bradley · Liberty,
John Apter · Police Federation of England and Wales,
Kirsty Brimelow QC · Doughty Street Chambers,
Lochlinn Parker · ITN Solicitors,
Owen Weatherill · National Police Coordination Centre
|
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| 13 Jan 2021 |
Oral evidence session
Alexis Quinn · Rightful Lives,
Alison, mother of young person detained in an Assessment and Treatment Unit,
Helen Wildbore · Relatives and Residents Association,
John, husband of a care home resident,
Matt Clifton · bemix,
Sara Burrows · Children Heard and Seen
|
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Who gave evidence
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| Witness | Organisation | Sessions |
|---|---|---|
| Alexis Quinn · Representative | Rightful Lives | 1 |
| Alison, mother of young person detained in an Assessment and Treatment Unit | — | 1 |
| Ben-Julian Harrington · Chief Constable | Essex Police | 1 |
| Dr Éamonn O'Moore · Senior Responsible Office PHE COVID-19 Response in Adult Social Care | Public Health England | 1 |
| Gracie Bradley · Interim Director | Liberty | 1 |
| Helen Whately MP, Minister of State (Minister for Care), Department of Health and Social Care · Minister of State | Department of Health and Social Care | 1 |
| Helen Wildbore · Director | Relatives and Residents Association | 1 |
| Jenny Morrison · Representative | Rights for Residents | 1 |
| John Apter · National Chair | Police Federation of England and Wales | 1 |
| John, husband of a care home resident | — | 1 |
| Kate Terroni · Chief Inspector Adult Social Care, Integrated Care and Interim Chief Operating Officer | Care Quality Commission | 1 |
| Kirsty Brimelow QC · Barrister | Doughty Street Chambers | 1 |
| Lochlinn Parker · Head of Civil Liberties | ITN Solicitors | 1 |
| Matt Clifton · Chief Executive | bemix | 1 |
| Owen Weatherill · Assistant Chief Constable | National Police Coordination Centre | 1 |
| Peter Wyman CBE, DL · Chair | Care Quality Commission | 1 |
| Professor Martin Green · Chief Executive | Care England | 1 |
| Sara Burrows · Founder and Director | Children Heard and Seen | 1 |
| Zac Taylor · Director, Quality and Practice | Mencap | 1 |
Correspondence
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