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Government faces legal challenge over access to Covid vaccine for people with learning disabilities


By Rachel Carter
28 January 2021

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A legal challenge has been launched against the Government in a bid to secure priority access to the Covid-19 vaccine for all people with learning disabilities, Bindmans LLP has confirmed.

Bindmans has issued the proceedings on behalf of two people with learning disabilities, who are seeking priority access to the vaccine ‘on an equal basis with other highly clinically vulnerable individuals’.

According to the firm, the claim argues that Matt Hancock ‘rubber stamped’ the Joint Committee on Vaccination and Immunisation’s advice (JCVI) when it set out its priority list.

The claimants also allege that both the health secretary and JCVI have failed to take ‘sufficient account’ of the evidence that people with learning disabilities are at greater risk from the virus.

Under the current prioritisation guidance, only people with Down syndrome and ‘severe’ and ‘profound’ learning disabilities have priority access to the vaccine and are in group six.  

The Department of Health and Social Care (DHSC) said it could not comment on potential legal proceedings.

‘Order to reconsider’

The proceedings have been issued by Bindmans LLP on behalf of a 19-year-old who resides in a supported living placement and her 47-year-old mother, who currently has no priority access to the vaccine, the lawyers said.

According to the firm, the health secretary has admitted in a formal legal letter that in reaching his decision on priority groups for Covid vaccination, ‘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,’ Bindmans said.

The firm said that ‘despite legal correspondence’, Mr Hancock has so far declined to amend the list, and the claimants are now seeking an order that requires him to ‘reconsider the prioritisation of people with learning disabilities, in light of the evidence then available’.

‘On 27 January 2021 the Administration Court ordered that the Secretary of State should file its initial defence to X and Y’s application by 5 February 2021,’ Bindmans said.

‘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.’

PHE report

This comes after a Public Health England (PHE) report, published November 2020, found people with learning disabilities were up to six times more likely to die from Covid-19 than the general population.

It also noted that individuals with learning disabilities under the age of 35 were 30 times more likely to die from the virus than their peers.

Bindmans said the PHE report ‘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 great risk’.

Charities and other stakeholders have also called for all people with learning disabilities to be given priority to the vaccine, and a petition on the issue has amassed over 12,000 signatures so far.

The JCVI has advised that the first priorities for any Covid-19 vaccination programme should be the prevention of Covid-19 mortality and protection of health and care staff.

A DHSC spokesperson told Healthcare Leader that secondary priorities could include vaccination of those at increased risk of hospitalisation and exposure, and to maintain resilience in essential public services.

The spokesperson added that the JCVI has looked at ‘extensive data on mortality from Covid-19 in coming to their recommendation, which included the available data on those with learning difficulties’.

The current priority groups are as follows:

  1. residents in a care home for older adults and their carers
  2. all those 80 years of age and over and frontline health and social care workers
  3. all those 75 years of age and over
  4. all those 70 years of age and over and clinically extremely vulnerable individuals
  5. all those 65 years of age and over
  6. all individuals aged 16 years to 64 years with underlying health conditions which put them at higher risk of serious disease and mortality
  7. all those 60 years of age and over
  8. all those 55 years of age and over
  9. all those 50 years of age and over

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