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Contracted with

the Legal Aid

Agency

Bindmans LLP

236 Gray’s Inn Road London WC1X 8HB

DX 37904 King’s Cross Telephone 020 7833 4433 Fax 020 7837 9792

www.bindmans.com info@bindmans.com

Bindmans LLP is a limited liability partnership registered in England and Wales under number OC335189. Its registered office is as

set out above. The term partner means either a member of the LLP or a person with equivalent status and qualification.

SENIOR CONSULTANTS

Sir Geoffrey Bindman QC*

Stephen Grosz QC*

Saimo Chahal QC*

Lynn Knowles

PARTNERS

Tayab Ali

Tamsin Allen

Liz Barratt

Jules Carey

Jon Crocker

Yagmur Ekici

Kate Goold

John Halford

Charlotte HaworthHird

Alison Leivesley

Siobhan Kelly

Elizabeth McGlone

Alla Murphy

Olivia Piercy

Jamie Potter

Paul Ridge

Amrit Rana

Amy Rowe

Alison Stanley

Anna Thwaites

Katie Wheatley

ASSOCIATES

Salima Budhani

Emma Cohen

Maud Davis

Neil Emery

Ashley-Jayne Fleming

Roberta Haslam

Laura Hobey-Hamsher

Catherine Jackson

Jude Lanchin

Alison Mackintosh

Karen May

Jessica Skinns

Sheetul Sowdagur

SOLICITORS

Karan Ahluwalia

Sumaiyah Anwar

Clara Barry Born

Joanna Bennett

Nasbin Begum

Jessie Brennan

Elizabeth Cleaver

Samuel Cronin

Alice Davis

Rachael Davis

Emily-Jade Defriend

Abigail Evans

Christian Hansen

Rachel Harger

Ella Jefferson

Robert Maddox

Hannah Marshall

Carla Mirallas

Joseph Morgan

Oliver Oldman

Patrick Ormerod

Shelly Pastakia

Jen Parker

Farhana Patel

Caroline Robinson

Basmah Sahib

Emma Varley

William Whitaker

Rosaleen Wyllie

Louisa Zangina

Daniel Zona

LAWYER

Melissa Arnold

CONSULTANTS

Liz Dronfield

Tony Taylor

*Honorary

Direct dial:+

Direct fax: +

Your ref:

Our Ref:

Direct email:

Paralegals:

Date: 27 November 2020

FAO

Government Legal Department

Litigation Group

102 Petty France

By email only:

Dear

R (on the application of Doctors’ UK Association & Ors.) –v- Secretary

of State for Health & Social Care & Ors.

Claim No: CO/2074/2020

1. Introduction

1.1 We continue to act for the claimants in the above claim and write

further to the NAO Report, “The supply of personal protective

equipment (PPE) during the COVID-19 pandemic”, as published on

25 November 2020 (the “NAO PPE Report”). As you are aware, the

claim was stayed by consent pending the publication of that report.

1.2 In light of that Report we invite the Defendant to now accept that

he is under a duty to commission an enhanced Article 2 investigation

into whether failings nationally and/ or locally in the procurement,

stockpiling, distribution and provision of PPE, and the provision of

information about PPE, both before and during the ongoing COVID- 19 pandemic may have caused or contributed to the deaths or

serious illness from COVID-19 of workers in the health and social

care sectors, as well as patients (including nursing and care home

patients) (‘the PPE Issue’).

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1.3 We also invite him to provide details of the legal framework, timing,

constitution and terms of reference of such an investigation.

1.4 If that is accepted then, subject to agreement on the details of any

such investigation, it may be possible for the claim for judicial

review to be settled and it is likely to be appropriate for there to be

a short stay while this is resolved.

1.5 If that cannot be agreed, we invite the Defendant to at least agree

that permission to apply for judicial review should be granted and

sign the attached consent order timetabling this case towards a

substantive hearing.

1.6 If the Defendant refuses to agree permission, then we seek his

agreement to further directions for a speedy determination of the

permission stage following the lifting of the stay on 30 November

2020. We attach a further, alternative consent order for this

purpose.

2. The NAO PPE Report

2.1 Your client relied in his Summary Grounds of Resistance on the NAO

PPE Report as a report that would investigate “precisely the sort of

systemic issues that the Claimants are concerned about.” Indeed,

it was the only independent mechanism identified by the Defendant

as being able to identify and address systemic issues beyond the

death or illness of a particular individual.

2.2 This was prescient. As was our letter of 2 July 2020, which predicted

the NAO Report would “unearth” evidence, draw interim

conclusions and make recommendations of relevance to the claim.

All of that evidence and those conclusions and recommendations

reinforce the need for the Defendant to unequivocally commit, now,

to an Article 2-complaint investigation.

2.3 In particular, the Report identifies a host of problems in the

procurement, supply and distribution of PPE:

(a) The Report identifies significant deficiencies in the stockpile

of PPE available in the case of a pandemic, including the

absence of gowns, and out-of-date or unsafe PPE (paragraphs

1.8, 1.9 and 1.16). Collectively, the stockpiles provided an

estimated two weeks’ worth or less of most types of PPE

needed by the NHS and social care during the pandemic

(paragraph 8 of the Exec Summary and see figure 4 on p.20).

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(b) The Report identifies a failure to recognise within an

appropriate timescale that these supplies would be

insufficient. Even by mid-March 2020, despite the warnings of

Sage to the contrary in February, the Government believed

existing stockpiles “would provide most of the PPE needed to

manage a Covid-19 pandemic” (paragraph 1.13).

(c) The Report identifies substantial deficiencies in the pre- pandemic distribution / supply chain models, including

warehousing and logistical problems and inadequate legacy IT

systems (paragraphs 1.16 and 1.17).

(d) The Report also identifies deficiencies in the supply chain

introduced in response to the Pandemic, noting that despite

the efforts made, “there are important aspects that could and

should have been done much better” (Exec Summary,

paragraph 23). These aspects included on initial reliance on a

“push” model, whereby all Trusts got the same amount and

type of PPE regardless of need, PPE had to be procured at

inflated prices, some of the PPE procured did not meet safety

standards, and there were concerns about the propriety of

some of the contracts awarded (as dealt with in another NAO

Report) (paragraphs 2.5-2.20).

2.4 Unsurprisingly, in the time available, the NAO was unable to draw

final conclusions as to the extent of actual shortages, but the

extraordinary divergence of views between stakeholders underlines

the need for an Article 2-compliant investigation. By way of example

only:

(a) The DOH maintained that it had never “entirely run out of

PPE” (paragraph 2.9).

(b) NHS Trusts reported that they also has never entirely run out

of PPE although they often did not know what PPE they would

get and what they got did not necessarily correspond with

their need (paragraph 3.8).

(c) Social care providers acknowledged that they came

“extremely close to running out of PPE” (and the NAO notes

they may have been unwilling to admit they had run out even

if they did so). Such providers also considered they had

insufficient support from Government in obtaining PPE

(paragraphs 3.11-3.12). We understand that permission has