Bindmans LLP has issued urgent court proceedings against the Secretary of State for Health on behalf of two individual clients, seeking priority access to the Covid-19 vaccine for all individuals with learning disabilities, on an equal basis with other highly clinically vulnerable individuals. The claim argues that the Secretary of State ‘rubber stamped’ the advice of the Joint Committee on Vaccination and Immunisation (JCVI) when it set out its priority list for access to the vaccine, which is currently mainly based on age. The Secretary of State has admitted in a formal legal letter that in reaching his decision, he thought he was bound to follow the JCVI recommendation, when in fact as a matter of law he was not. The claimants therefore allege that his decision was fundamentally flawed by this misdirection as to the law.
The claimants allege that both the Secretary of State and the JCVI failed to take sufficient account of the evidence of the particular vulnerability of people with learning disabilities to Covid-19, including a Public Health England report published on 12 November 2020, which found that people with learning disabilities were between three and six times more likely to die from Covid-19 than the general population. The report noted that individuals with learning disabilities under the age of 35 were 30 times more likely to die from Covid-19 than their peers. Public Health England did not distinguish between those with mild and moderate learning disabilities, and those with severe and profound disabilities, concluding that all such individuals were at greater risk.
However, under the Secretary of State’s decision based on the JCVI’s advice, only people with Down syndrome or ‘severe’ and ‘profound’ learning disabilities have any priority access to the vaccination at all. These individuals are in prioritisation group six, and will therefore be vaccinated after all members of the general population over the age of 65. This group are unlikely to receive the vaccine until around April 2021.
Bindmans’ clients in this matter are Y, a 19 year old young person who resides in a supported living placement, and her 47 year old mother X, who lives at home with her mother. Both X and Y have learning disabilities, of different degrees of severity. It is submitted on Y’s behalf that she is at much higher risk of infection, since she resides within a care setting. Y is also unable to socially distance due to her autism. So far only residents of care homes for older adults have been prioritised for access to the vaccine, with no priority for those in other care settings.
Y’s mother X currently has no priority access to the vaccine at all, and therefore may not receive this until autumn 2021.
Charities and stakeholders have been arguing since November 2020 that all those with learning disabilities should have priority access to the Covid-19 vaccination. Professor Hatton, an expert on social care and the inequalities faced by those with learning disabilities, has published two detailed blog posts arguing for priority access to the vaccine for this cohort. On 14 January 2021 the British Medical Journal also published an article, noting that those with learning disabilities have faced significant health inequalities historically, and that priority access to the vaccine should be granted.
Despite legal correspondence on this issue, the Secretary of State has so far declined to amend the vaccination priority list. On 27 January 2021 the Administrative Court ordered that the Secretary of State should file its initial defence to X and Y’s application by 5 February 2021. Following this a decision will be made in relation to X and Y’s request for an urgent determination of their application for judicial review.
In addition to the legal issues raised above, the claimants allege that the Secretary of State has discriminated against people with learning disabilities and working age adults living in care settings in the way he has prioritised access to the vaccine, and has failed to comply with his ‘public sector equality duty’ in reaching the prioritisation decision.
X and Y are seeking an order that the Secretary of State be required to reconsider the prioritisation of people with learning disabililities for the Covid-19 vaccines, in the light of all the evidence then available.
X and Y are represented by Elizabeth Cleaver of Bindmans, and Steve Broach and Rachel Sullivan of 39 Essex Street chambers.
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