Transcript of Module 2B Public Hearing on 28 February 2024.
(10.00 am)
Lady Hallett: Mr Poole.
Mr Poole: My Lady, before we start our evidence this
morning, we need to swear in our interpreters for the
duration of our hearings.
(Interpreters sworn/affirmed)
Mr Poole: Can you please give us your full name?
The Witness: My name is Elizabeth Ann Grant.
Ms Elizabeth Grant
MS ELIZABETH GRANT (sworn).
Questions From Lead Counsel to the Inquiry for Module 2B
Lady Hallett: Ms Grant, I know this is going to be
difficult for you. If at any stage you need a break,
just say. Thank you so much for coming to help.
Mr Poole: Ms Grant, whilst you give your evidence, could
you try to keep your voice up as much as possible, so we
can hear you, but also because it’s being recorded,
clearly into the microphone. Also if I ask you
a question that isn’t clear, which might be possible,
then please ask me to repeat it.
Ms Grant, you are a representative of Covid Bereaved
Families for Justice Cymru, and you have been good
enough to provide the Inquiry with a statement, which we
have at INQ000412150. You signed that statement on
21 February. Are the contents of that statement true to the best of your knowledge and belief?
Ms Elizabeth Grant: They are correct, yeah.
Lead 2B: Ms Grant, Covid Bereaved Families for Justice Cymru has also provided a response to the Inquiry’s impact questionnaire, which we can find at INQ000099719. Is that a document with which you’re familiar?
Ms Elizabeth Grant: It is.
Lead 2B: Ms Grant, in due course I will ask you some questions about Covid Bereaved Families for Justice Cymru group, which continues to provide great assistance to this Inquiry. I would like to start your evidence, though, if I may, by asking some questions about your mother, Betty, who very sadly passed away on 19 April 2020 at the age of 86. May I pass on the Inquiry’s condolences for your loss.
Ms Elizabeth Grant: Thank you.
Lead 2B: I understand that your mother and father retired in around 1988, having owned a number of retail businesses?
Ms Elizabeth Grant: Semi-retired, yes.
Lead 2B: Then in retirement they moved, I think, from Cornwall to Tintern in South Wales.
We understand that your mother suffered with vascular dementia, which was first diagnosed in 2016, and also arthritis, which affected her mobility. But despite those conditions, I understand that she was able
to lead a very active life, I believe she represented
Cornwall and Monmouthshire at bowls in her retirement?
Ms Elizabeth Grant: She did.
Lead 2B: There came a time when your mother suffered a fall that
required her to be admitted to hospital; is that right?
Ms Elizabeth Grant: Yes, that’s correct.
Lead 2B: I think on 13 January 2020, that fall resulted in her
sustaining a broken hip, and she was admitted to
hospital then; is that right?
Ms Elizabeth Grant: Yes, that’s right.
Lead 2B: Having undergone an operation to repair her hip, your
mother was discharged from hospital and placed on
a community ward in a community hospital, and that was
28 January 2020; is that right?
Ms Elizabeth Grant: Correct.
Lead 2B: Your mother was then discharged home on
24 February 2020. Did there come a time when your
mother had to be readmitted to hospital?
Ms Elizabeth Grant: Yes, yes, she was readmitted shortly afterwards. She
had stopped eating and stopped drinking, my father was
getting concerned, he was her main carer, and called the
ambulance.
Lead 2B: I think that was on 2 March, when she went back into
hospital. Were you aware of any steps that were taken
to protect your mother from Covid when she was readmitted to hospital, and make sure that she remained infection-free?
Ms Elizabeth Grant: Not aware of anything, no.
Lead 2B: Was your mother, for example, tested for Covid on her admission to hospital?
Ms Elizabeth Grant: No.
Lead 2B: After about a week in hospital, we understand that your mother was deemed medically fit and safe for discharge. That was 10 March. However, she was not discharged home. Can you tell us why that was?
Ms Elizabeth Grant: The hospital insisted on a package of care of four times daily two carers, bearing in mind that there were three very capable adults at the property to look after her. As Covid struck, sickness and suchlike of staff, there was no care package to have offered.
Lead 2B: So, rather than being discharged home, am I right that your mother was discharged to a community hospital on 12 March?
Ms Elizabeth Grant: She was.
Lead 2B: Are you aware whether your mother was tested for Covid on discharge from hospital or on admission to the community hospital?
Ms Elizabeth Grant: She wasn’t.
Lead 2B: Do you know whether your mother was placed on a non-Covid ward at the community hospital?
Ms Elizabeth Grant: The community hospital, to my knowledge, just has one large ward.
Lead 2B: Were you able to visit your mother when she was not community hospital?
Ms Elizabeth Grant: Yes. Yes, I did.
Lead 2B: When you visited your mother, were you aware of the use of PPE?
Ms Elizabeth Grant: No.
Lead 2B: In the sense that there was no PPE?
Ms Elizabeth Grant: No PPE.
Lead 2B: Now, upon the country entering lockdown on 23 March, the community hospital was closed for visitors. I understand you were able to speak to your mother the day before that, 22 March, which was also Mother’s Day; is that right?
Ms Elizabeth Grant: Yes, they’d restricted visiting, so my father was going in daily prior, but because it was Mother’s Day my brother facilitated a video call to me with her.
Lead 2B: Did there come a time when your mother tested positive for Covid in hospital?
Ms Elizabeth Grant: Yes.
Lead 2B: I think you say in your statement that on 31 March your mother’s temperature spiked, she was tested the same day and then returned a positive test the following day, 1 April?
Ms Elizabeth Grant: Yes.
Lead 2B: That must have come as an awful shock. Were you kept informed of your mother’s condition following that positive test?
Ms Elizabeth Grant: Unfortunately not, no.
Lead 2B: Is it your belief that your mother contracted Covid whilst in hospital?
Ms Elizabeth Grant: Yes. Without a shadow of a doubt.
Lead 2B: And given your mother’s vascular dementia, I understand that you, along with your brother and father, were your mother’s attorneys under a lasting power of attorney. We understand that attempts were made to have your mother discharged, but that was not permitted, is this right, until she had 12 clear days without a temperature spike?
Ms Elizabeth Grant: It was described to us as ten plus two without another spike in temperature.
Lead 2B: Yes. Then on 17 April 2020 your mother was eventually discharged?
Ms Elizabeth Grant: On my insistence, yes.
Lead 2B: Is it right that you travelled from your home in Bath to Chepstow to support your father and help with your mother following her discharge?
Ms Elizabeth Grant: I did, yes.
Lead 2B: Can you describe to us, was that straightforward, given obviously Bath was in England, Chepstow in Wales, and in lockdown?
Ms Elizabeth Grant: Messaging was very confusing. To go by the English guidance at the time, you could travel for care, but I had no clue whether that was the same in Wales, so I actually decided to – I mean, nothing would have stopped me, I hasten to add, but I did ring the police, 101, and ask for advice.
Lead 2B: And what advice were you given by the police?
Ms Elizabeth Grant: Very vague. Didn’t really know categorically, but if I was stopped then just to say that was where I was going and for what reason.
Lead 2B: What professional support, if any, did your mother receive when she was discharged from hospital?
Ms Elizabeth Grant: They did kindly put in place St David’s Hospice carers to come and visit, which they did on one occasion.
Lead 2B: And having been discharged on 17 April, two days later, on 19 April, your mother tragically passed away?
Ms Elizabeth Grant: She did.
Lead 2B: Following your mother’s passing, I think you had to return to Bath, leaving your father in Tintern. That must have been an incredibly difficult time.
Ms Elizabeth Grant: I was very fortunate inasmuch as the three capable adults were my father, brother and sister-in-law, so I knew he wasn’t alone, but I found I had to process what had gone on and what – what we’d witnessed, and again I wasn’t 100% sure whether I should remain there because of the regulations or the guidance, so I went back.
Lead 2B: Now, I don’t want to go into the detail of it all, but as a result of the things that you have raised, you have been engaged in a long course of dealing with the hospital and with the health services in Wales in order to find out some of the answers to the questions that you’ve posed; is that right?
Ms Elizabeth Grant: That’s correct.
Lead 2B: Is it right that following your mother’s passing you received medical notes from the community hospital and discovered an incomplete Do Not Attempt Cardiopulmonary Resuscitation order had been placed on your mother?
Ms Elizabeth Grant: Yes.
Lead 2B: Would this have been something that your mother wanted or agreed to?
Ms Elizabeth Grant: No. I’d actually had a conversation with a – in previous months, a hard conversation but one I felt to broach, and, you know, she – she wanted to feel that everybody was going to do everything for her, so she didn’t want that against her, no.
Lead 2B: Am I right there was also a note not to transfer your mother to an acute hospital; were you aware of that at the time?
Ms Elizabeth Grant: No, we weren’t. There was no communication from the hospital at all.
Lead 2B: As regards your mother’s funeral arrangements, you say in your statement that you were given a choice of either ten people to attend a funeral in Lydney, Gloucestershire, or five people to attend the funeral in Wales, and I think you opted for a direct funeral and cremation at Lydney, which took place on 7 May 2020. Can you tell us who was able to attend your mother’s funeral?
Ms Elizabeth Grant: A direct funeral, there isn’t anybody to attend. We couldn’t, as a family, decide who those ten people would be, so dad had the final decision and he decided to do a direct funeral and then have a celebration of her life when the lockdown restrictions had lifted.
Lead 2B: And I think you say on 25 September 2020 you were able to hold that celebration at your mother’s bowls club?
Ms Elizabeth Grant: 2021.
Lead 2B: 2021, I’m sorry.
Ms Elizabeth Grant: Where she is laid to rest.
Lead 2B: Was it as a result of your mother’s death and the way in which she contracted Covid and was dealt with in hospital that you came into contact with some of the people via Facebook, I think, that had similar experience of the Covid pandemic in Wales?
Ms Elizabeth Grant: A few groups, a few – bubble of Facebook groups had popped up, support groups, and it was – it’s difficult, because I know statistics are very helpful, but I actually thought at the time that these thousands and thousands of deaths on the dashboard were in – they were desensitising people to the fact that they were actually people, they were loved people; they just had become statistics, numbers. So I actually reached out on a Facebook platform for anybody in Wales that had lost somebody in the hospitals and the health board, and that’s when Anna-Louise responded, and I think that’s where it all sort of started.
Lead 2B: And so that’s yourself, Anna-Louise Marsh-Rees and Sam Smith?
Ms Elizabeth Grant: Yes.
Lead 2B: I think the three of you formed Covid Bereaved Families for Justice Cymru, and that was 15 July 2021; is that right?
Ms Elizabeth Grant: Yes.
Lead 2B: Obviously it has evolved over time, but I understand that the group represents people from many different backgrounds who have had many varied experiences of the Covid pandemic in Wales; is that right?
Ms Elizabeth Grant: To a point, yes, yes.
Lead 2B: The group represents, obviously, as the name would suggest, a number of people who have had different experiences of bereavement?
Ms Elizabeth Grant: Yes.
Lead 2B: Does Covid Bereaved Families for Justice Cymru represent just the bereaved or does it represent others and provide support to them? So, for example, key workers or public sector workers, or those that have suffered in other ways in the course of the pandemic.
Ms Elizabeth Grant: I would say it’s specifically bereaved.
Lead 2B: Is it right to say that the group has a wide variety of people and experiences upon which it can draw to form views and raise concerns about the Covid pandemic in Wales?
Ms Elizabeth Grant: Yes, lived experiences, yes.
Lead 2B: And those lived experiences, they come from people from different parts of Wales?
Ms Elizabeth Grant: Yes, north, south –
Lead 2B: And within – sorry.
Ms Elizabeth Grant: East, west, yes.
Lead 2B: And within the group there are people whose relatives and loved ones have died at different ages?
Ms Elizabeth Grant: Yes.
Lead 2B: And it represents people such as Amanda Provis, who we will hear from in a moment, who have suffered bereavement at different stages of the pandemic as well?
Ms Elizabeth Grant: That’s correct, yes.
Lead 2B: Now, plainly the group was started after some of the first major decisions in the pandemic had been taken by the Welsh Government and whilst the pandemic was, of course, still raging. What was the primary aim of the group, as you saw it, when you first started it?
Ms Elizabeth Grant: To find answers, truth, accountability, and basically – with – hopefully with help in the Chair, change for the future.
Lead 2B: And did your group focus on the decision-making which had been taken by the Welsh Government as it affected Wales? So was your group always Wales-centric?
Ms Elizabeth Grant: Yes, yes, definitely.
Lead 2B: I would like to ask you next, if I may, a few questions about a number of the issues that your group have very helpfully raised with us, and I understand also have raised with the Welsh Government, arising out of their lived experiences.
Now, in terms of raising concerns with the Welsh Government, I think at the time of responding to that impact questionnaire we looked at a moment ago, which was late 2022, the group had had five meetings with the First Minister and two meetings with the health minister and Deputy Chief Medical Officer, Dr Chris Jones; is that right?
Ms Elizabeth Grant: That’s correct.
Lead 2B: I think I’m right in saying that since the group was established, you have also had quarterly meetings with the health minister and the Deputy CMO; is that right?
Ms Elizabeth Grant: Yes, although they have stopped that now, yes.
Lead 2B: When did those meetings stop?
Ms Elizabeth Grant: I’m guessing it was the beginning of last year.
Lead 2B: Now, at those meetings, the group raised various issues, and I’d just like to address some of those, if I may.
Now, hospitals, obviously, are at the forefront of any pandemic response and appear to be right at the heart of the greatest areas of concerns expressed by members of your group. What is it about hospital care that your members, in general terms, received, or rather their loved ones received, that’s given rise to the greatest concern?
Ms Elizabeth Grant: Ventilation in hospitals, procurement and use of PPE, and the right PPE, transfers on Freedom of Information requests, on my part. There was what I would consider a large number of untested patients that were discharged to community hospitals, to care homes and residential homes. It’s – that’s probably the main, is the PPE, use of the right PPE, ventilation in hospitals.
Lead 2B: So PPE, infection control and nosocomial infection. You’re no doubt aware that the figures now show that levels of nosocomial infection in hospitals were extremely high across the whole of the United Kingdom. The virus was, to put it bluntly, rampant across the healthcare sector. Is it the view of members of your group that more could and should have been done by way of infection control to stop the spread of the virus through places where their loved ones were most vulnerable?
Ms Elizabeth Grant: I have only one answer: definitely.
Lead 2B: Is it there a sense held on the part of your members that there was a failure to get on top of the spread of the virus generally before it impacted on individual hospitals and also, obviously, care homes?
Ms Elizabeth Grant: Yes.
Lead 2B: Obviously related to this is the testing of asymptomatic healthcare workers, which is an issue that is highlighted in the response to the impact questionnaire. In that impact questionnaire, your group draws attention to the fact that this, again, was not introduced in Wales until late in the day, and they make the point that this was later than in England. This is a big issue for members of your group; is that right?
Ms Elizabeth Grant: It is.
Lead 2B: I think I’m right in saying, aren’t I, that one of the areas in which your campaign has been successful insofar as the Welsh Government is concerned is that you’ve campaigned successfully for there to be an official inquiry into nosocomial infection in Welsh hospitals; is that right?
Ms Elizabeth Grant: Yes, that’s correct.
Lead 2B: Now, whilst we’re talking about hospitals, do many members of your group raise the issue of the restrictions on their visiting ability to the hospitals where their loved ones were being looked after, and also the general issue, I think that you’ve alluded to in your own evidence, about communications with medical staff?
Ms Elizabeth Grant: I was going to say that the majority, as I do, felt the restrictions were necessary to stop the spread, but as you say, communication within hospitals to families was just non-existent.
Lead 2B: Do many say that they simply didn’t receive sufficient detail or the right level of communication, and of course were denied the ability to visit?
Ms Elizabeth Grant: Obviously the visiting came to a head when people weren’t allowed, in the first wave, to be with their loved ones as a final goodbye, and mum’s hospital didn’t have any wifi facilities so you couldn’t have done any video calling. Very lacking, very lacking in technology in some of the hospitals in Wales.
Lead 2B: Is there a feeling amongst members of your group that there was an absence of bereavement support, so a lack of financial support but also the structures in place to help people come to terms with the loss of their loved ones?
Ms Elizabeth Grant: We have over, I think it’s 400 members, and not one person has been offered bereavement support.
Lead 2B: So it would be right to say that your members feel there’s a lot more that could be done in terms of providing that support, so both emotionally, financially, but also in terms of practicalities, so, for example, returning the clothes from someone who’s died in hospital; is that a big issue?
Ms Elizabeth Grant: Yes, a lot of people had issues with the details of things like that, yes. I mean, mum came home with – with an item missing. And it matters, when you’re trying to accept what’s gone on.
Lead 2B: Of course.
Now, we’ve mentioned care homes. Is it the case that there are a number of people within your organisation who have experienced bereavement of relatives in care homes in Wales?
Ms Elizabeth Grant: Yes, there are.
Lead 2B: So that is, I assume, a significant cohort, a significant number of people, but also a significant concern for members of your group, is it?
Ms Elizabeth Grant: Yes, because you go back to the untested policy that the government had.
Lead 2B: If we can just look at a passage from the impact questionnaire, please, INQ000099719, and I think we’ve got page 5 up on the screen, and if we can look at (vii) in front of you, we can see there, this is a concern that’s raised by your group:
“Transferring patients from ward to ward, hospital to hospital, hospital to home/care homes untested and/or with Covid. Welsh Government did not start testing hospital to care home patients until 2 weeks after UK changed guidance.”
Ms Elizabeth Grant: We want to know why.
Lead 2B: That’s a reference there, isn’t it, that mandatory testing of all patients prior to discharge to a care home was introduced in England on 16 April but it was not until 29 April 2020 that this change in policy was introduced in Wales; that’s right?
Ms Elizabeth Grant: Yes.
Lead 2B: And as you say you want to know why?
Ms Elizabeth Grant: Why.
Lead 2B: And these were issues that your organisation was raising with the Welsh Government and the First Minister in meetings in late 2021?
Ms Elizabeth Grant: Yes.
Lead 2B: And you still want to know why?
Ms Elizabeth Grant: Yes.
Lead 2B: What role did you understand that the Welsh Government played in this early period, so January to April 2020, as regards care homes?
Ms Elizabeth Grant: It’s – I mean, I watched yesterday, I saw your chronological order of the Welsh Government’s performance, and it does sound like they were caught with their trousers down. And when they realised the impact of the virus on Welsh shores, they sat on their hands.
Lead 2B: Did members of your group who had suffered bereavement around that time, so this early period, January to April 2020, have experience of pressure being applied to them or the individuals who subsequently died to be transferred from hospital to care homes?
Ms Elizabeth Grant: I’m not aware except the fact that you’re dealing with a generation of people, of the elderly and vulnerable, that would hang on – have such respect for anybody in authority, they wouldn’t have challenged anything that an authority person would advise or say what is happening.
Lead 2B: Now, another issue that your group has raised in the context of social restrictions and the use of so-called non-pharmaceutical interventions that were put in place is the issue that you alluded to earlier in your journey from your home to visit your father and mother, so it’s the question of borders and the differences in application and impact between Wales and England. Has that been a significant issue in the views of your members?
Ms Elizabeth Grant: They are, I think I might be one of two or three that live in England.
Lead 2B: You found it hard, though, did you, to understand what the rules were?
Ms Elizabeth Grant: Yes.
Lead 2B: Did you feel there was an unnecessary degree of complexity or confusion?
Ms Elizabeth Grant: It was tantamount to chaos. But yes, there was confusion. It was very difficult to get, when you’re in England, to get any information or it was difficult to get information of what was happening in Wales.
Lead 2B: Another issue raised by your group relates to face masks, and again if we can just look at the impact questionnaire that I think is still on the screen in front of you, but now we’re looking at (viii), the point is made there that the “Welsh Government mandated [the wearing of] masks 2 months after [the] UK Government”.
Now, that’s a reference to the fact that on 11 May 2020 the UK Government advised the public to consider wearing face masks in enclosed public spaces, so shops, trains, buses, in order to help reduce the spread of Covid. This guidance later, in England, became mandatory, but it wasn’t until 11 September 2020 that all residents in Wales, those over the age of 11, were required to wear face coverings in indoor public spaces; is that what this point is –
Ms Elizabeth Grant: Yes, it is, yes.
Lead 2B: And is that an area of concern for members of your group? Is that something that you’ve asked the Welsh Government to explain?
Ms Elizabeth Grant: I’m not sure we’ve actually asked them directly to explain, but again it’s a question of why and what science were they using.
Lead 2B: Now, you will have heard reference to so-called “superspreader” events.
Ms Elizabeth Grant: Yes.
Lead 2B: And this is another issue that’s been raised by your group, and you have, I understand, raised it with the Welsh Government.
Now, in particular, you’ve asked why the Welsh Government was content to allow the Six Nations rugby match between Wales and Scotland, which was due to be played here in Cardiff in the Principality Stadium, to go ahead on 14 March. Now, we know it was eventually cancelled by the Welsh Rugby Union the day before the match, but that was not before 20,000 Scottish rugby fans had arrived in Cardiff.
Now, in light of what was known at the time and the approach being taken by other countries, and I referred yesterday in the opening to Scotland advising against gatherings of more than 500 people, is this something that members of your organisation again want answers to?
Ms Elizabeth Grant: Yes, yes, it’s the big picture.
Lead 2B: Is your group also campaigning and do its primary aims also include aspects of hospital/care home nursing treatment? So, for example, I think you referred to PPE, respirators, ventilators and so on and so forth, for the purposes of health and social care staff. That is a big concern?
We’ve touched on the broad issue of communications between hospitals but also communications from care homes. That is another issue?
Ms Elizabeth Grant: Yes.
Lead 2B: And, importantly, the whole issue of the arrangements which were then put in place for dealing with loved ones at the end, the way in which, again, communications and hospital staff and care homes and the way in which loved
ones were buried and had their funerals conducted, that
is an important issue –
Ms Elizabeth Grant: Yes.
Lead 2B: – for members of your group?
Ms Elizabeth Grant: There’s extra layers to the grief of that as well that
keeps getting added. Bodies were mislaid, we have
members of that experience. We have knowledge of
members of staff within a particular health board that
was going around into morgues and on ICU, documenting
and photographing – photography of dying people and of
people that were on ventilators that was later exhibited
and made a book out of. Which is another layer that
adds to what you’re trying to cope with, because you’re
immediately thinking: is that my mum? Is that – you
know, as I say, it was – you know, it’s – it was just
unnecessary.
Lead 2B: And presumably, and not least because, of course, on
account of your mother’s death, the issue with DNA
Cardiopulmonary Resuscitation notices being given,
end-of-life care is obviously a vital topic for your
group; is that right?
Ms Elizabeth Grant: Yes.
Mr Poole: Thank you very much, Ms Grant, I know it can’t
have been easy, but I have no further questions for you.
Thank you.
The Witness: Thank you, my Lady.
Lady Hallett: Thank you very much indeed for helping us. I understand that there was a request – I think, given the distances in this building, I think I’ll just stay here, so if anybody from Bereaved Cymru needs to go to talk to Ms Grant, please do. If they don’t mind, I’ll just stay here. It causes quite an upheaval when I leave.
(The witness withdrew)
Lady Hallett: Are you all right, Ms Grant, you don’t want to talk to anybody from – are you sure? I can see you’re in good hands.
(Pause)
Lady Hallett: Is the next witness on their way?
Mr Poole: My Lady, yes, I think –
Lady Hallett: We don’t need a break, Ms Grant’s all right.
Mr Poole: Oh, she’s just taking a break – we’re just –
Lady Hallett: No, we’re not having a break, everything’s okay.
Mr Poole: I think we’re just waiting for the witness to come back, my Lady, thank you.
Lady Hallett: Oh, I see what you mean, she had been in the hearing room, I follow.
(Pause)
Lady Hallett: Are you okay?
The Witness: Yeah.
Mr Poole: May I ask you to start by stating your full name,
please.
The Witness: Amanda Jane Provis.
Ms Amanda Provis
MS AMANDA PROVIS (affirmed).
Questions From Lead Counsel to the Inquiry for Module 2B
Lady Hallett: Please just say if you need a break or
anything. Thank you very much for helping us.
Mr Poole: Ms Provis, I think you were in the room a moment
ago when I said this, but I will say it again, if you
could just try to keep your voice up so that we can hear
you but also so that your evidence can be recorded. If
I ask you anything that you don’t understand, please ask
me to repeat it –
Ms Amanda Provis: Okay.
Lead 2B: – or rephrase it.
I understand that you give your evidence this
morning on behalf of Covid Bereaved Families for
Justice Cymru.
Ms Amanda Provis: Yeah.
Lead 2B: You have been good enough to provide a witness statement
to the Inquiry that’s dated 23 February 2024.
Ms Amanda Provis: Yes.
Lead 2B: We have that up on the screen. You signed that witness
statement. Is it true to the best of your knowledge and belief –
Ms Amanda Provis: Yes, it is.
Lead 2B: Ms Provis, it’s my sad task this morning to ask you some questions about your mother and also your grandmother, both of whom you lost to Covid.
Ms Amanda Provis: Yeah.
Lead 2B: May I start by passing on the Inquiry’s condolences for your loss.
Ms Amanda Provis: Thank you.
Lead 2B: So I may start with some questions about your mother, Christine.
Ms Amanda Provis: Yeah.
Lead 2B: Now, I understand that your mother was a retired homemaker and she tragically passed away from Covid on 7 April 2020 at the age of just 61.
Ms Amanda Provis: That’s correct.
Lead 2B: Now, I understand that your mother had some underlying health conditions: she suffered from diabetes and chronic asthma and COPD, and also in 2002, I think following that COPD diagnosis, she had most of one of her lungs removed?
Ms Amanda Provis: Yes.
Lead 2B: Now, your father is a hospital porter, and am I right that he worked as a hospital porter throughout the pandemic?
Ms Amanda Provis: Yeah, he did, yes.
Lead 2B: Do you know what PPE your father was provided with at work at the start of the pandemic?
Ms Amanda Provis: Yes: nothing at all.
Lead 2B: Did there come a time when your father started showing symptoms of Covid?
Ms Amanda Provis: Yes, that would have been the end of March. He’d gone to work, and about half an hour after he’d gone to work he rang me and said he was on his way home, he had symptoms of anosmia, which is no taste and no smell, had mentioned it to his line manager, and, along with a few other porters who had the same symptoms, were told to see the doctor in A&E, and the doctor told them to go home and self-isolate.
Lead 2B: So it was not only your father but a few other hospital porters were showing similar symptoms?
Ms Amanda Provis: Yes, that’s correct.
Lead 2B: What steps were taken to protect your mother from becoming infected when your father returned home to isolate?
Ms Amanda Provis: So obviously he told my mother, you know, the symptoms. They both said they were feeling okay. They slept in separate rooms so that my mother, because of her underlying health conditions, you know, wouldn’t catch it – anything from my father.
Lead 2B: Did there come a time, though, when your mother began to show symptoms of Covid?
Ms Amanda Provis: Yes, she did. It would be, I’d say, about a day or so after my father had been sent home from work.
Lead 2B: So I think you say, yes, in your statement that your father took a PCR test on 2 April –
Ms Amanda Provis: That’s correct.
Lead 2B: – and that was around the same time that your mother started to show symptoms. So again, similar to your father, lack of taste and smell and a cough; is that right?
Ms Amanda Provis: Yes, that’s correct.
Lead 2B: Given your mother’s underlying health conditions, her showing those symptoms must have been extremely worrying. What did your mother and father do upon your mother showing those symptoms?
Ms Amanda Provis: So they rang the doctors, because obviously you couldn’t go and see the doctor face-to-face, they spoke to the doctor and the doctor said, from the symptoms that she has, sounds like that she has Covid, and she was jut advised to use her rescue pack, which she had for COPD, which contained antibiotics and her asthma pump and steroids, to use those as and when she needed them, which is what she started straightaway.
Lead 2B: Given her underlying health conditions, was your mother at any stage advised to go to hospital?
Ms Amanda Provis: No.
Lead 2B: Now, I understand that on 6 April your father, having taken a PCR test, that came back, and that was a positive –
Ms Amanda Provis: That’s correct.
Lead 2B: Was it your belief that your father had contracted Covid then whilst working as a hospital porter?
Ms Amanda Provis: That’s correct.
Lead 2B: And that he had passed that on to your mother, upon his return home?
Ms Amanda Provis: That’s correct. He spoke to the doctor after my mother had passed and the doctor said, you know, it could have come from him or – they had gone shopping about a week before the lockdown and it could have come from there, but it is likely it was brought home by my father.
Lead 2B: Okay. I think you say in your witness statement that you had a FaceTime call with your parents on the day of your father’s positive test, so that’s 6 April?
Ms Amanda Provis: That’s correct.
Lead 2B: And on that FaceTime call I think you observed that your mother’s symptoms had worsened?
Ms Amanda Provis: Yeah, she’d got up in the morning and she was feeling quite breathless, she said it felt like that she’d been for a run. And she’s always had asthma. When she used to have asthma attacks, she used to start to getting sort of like panicky and feel that way anyway. So my father said, “Look, you know, you’re going to be fine, you’re all right, just try and take your time, sort of breathe slowly” and, you know, sort of, “You’ll get through this”. She used – she had a nebuliser at home which she used. My dad did say to her “Look, do you want to go to the hospital?” And she said “No, I’m too afraid to go to the hospital, you know, if I haven’t got it and it’s just a really, really bad flu, then I’m going to end up with it, I don’t want to be on my own”, she said. So she was too afraid to go to the hospital, but she wasn’t advised to go.
Lead 2B: I think it was the following day, so 7 April, that you received a telephone call from your father telling you that your mother had tragically passed away; is that right?
Ms Amanda Provis: That’s correct.
Lady Hallett: So the next day?
Ms Amanda Provis: Yeah. The 7th.
Lady Hallett: Sorry, Mr Poole.
Ms Amanda Provis: Sorry.
Mr Poole: You describe in your statement that you suffer with asthma and, because of that, your father was concerned, he didn’t want to put you at risk.
Ms Amanda Provis: That’s correct.
Lead 2B: So it was left to your father and brother to wait for the paramedics?
Ms Amanda Provis: Yeah, my father – sorry, my brother also works at the same hospital as my father, he was in work the day that my mother passed away. My father obviously had spoken to myself, he’d got hold of my brother, and as my brother was in work – he was on a different ward, he’s a nursing assistant – so he grabbed what PPE was available to him and he left work and went straight up to my father’s then to be with my dad.
Lead 2B: It must have been incredibly difficult for you not being able to see –
Ms Amanda Provis: Yeah, broke my heart.
Lead 2B: Your mother’s funeral I think took place on 30 April?
Ms Amanda Provis: That’s correct.
Lead 2B: Were you able to see your mother before laying her to rest?
Ms Amanda Provis: No, no, not at all. We weren’t given that option whatsoever.
Lead 2B: Was your mother’s funeral subject to the restrictions of which we are now only too familiar?
Ms Amanda Provis: Yes, there was only ten people allowed and that was including the vicar.
Lead 2B: Ms Provis, I know this must be very difficult for you, but if I could ask you to just slow down slightly in your answers, just so that we can record all of your evidence, I’m grateful.
Were you able to visit your mother there in the weeks thereafter?
Ms Amanda Provis: No.
Lead 2B: Tragically you also lost your grandmother, Maureen, to Covid on 29 January 2021.
Ms Amanda Provis: That’s correct.
Lead 2B: She was 84, I believe, when she passed?
Ms Amanda Provis: Yes.
Lead 2B: Now, although your grandmother suffered from diabetes, arthritis and pancreatitis, she lived an independent life until early 2020 –
Ms Amanda Provis: That’s –
Lead 2B: – when I think, at that time, she wanted to move out of her flat and into a nursing home?
Ms Amanda Provis: That’s right.
Lead 2B: Now, I think I’m right in saying that as a family you had concerns about this –
Ms Amanda Provis: Yes.
Lead 2B: – due to what you had heard on the news about Covid?
Ms Amanda Provis: That’s correct.
Lead 2B: So, to put it bluntly, your concerns were you didn’t want her to move into a nursing home –
Ms Amanda Provis: No, we didn’t.
Lead 2B: – because that would put her at risk of infection?
Ms Amanda Provis: Yes.
Lead 2B: So your grandmother therefore continued living in her flat. Did there, though, come a time when she needed to be admitted to hospital?
Ms Amanda Provis: Yes, she did. So after my mother passed, and it was after the funeral, so it would have been early May, my grandmother had a fall in her flat; she bashed her head, broke her hip and broke her wrist. She already had a lifeline installed in the flat anyway, which she used then obviously, then which contacted the ambulance, my father and his brother. And then my father rung me then to help me to – with my grandmother, to help her get dressed, you know, to maintain her dignity.
Lead 2B: When your grandmother was admitted to hospital, were you aware of any steps being taken to protect her from Covid, to make sure that she remained infection-free?
Ms Amanda Provis: None that I know of.
Lead 2B: Were you aware of whether your grandmother was tested for Covid on admission?
Ms Amanda Provis: Not on admission, no, but before she left she was.
Lead 2B: Were you able to visit your grandmother while she was in hospital?
Ms Amanda Provis: Not initially. She was originally in one hospital and then she was transferred to another one before coming out, and being admitted to a nursing home, so I couldn’t visit in the first hospital because of the restrictions, but I was allowed in the second hospital to visit her.
Lead 2B: I think, as you just alluded to then, there came a time when your grandmother was discharged from hospital to a care home?
Ms Amanda Provis: That’s correct.
Lead 2B: Again, when that happened, were you aware whether your grandmother was tested for Covid prior to discharge or prior to being admitted to a care home?
Ms Amanda Provis: Yes, she was, she was – before discharge and being admitted to the care home, she was tested for Covid and it obviously was negative.
Lead 2B: Were you able to visit your grandmother at the care home?
Ms Amanda Provis: No, no. Every time we made arrangements to go, which – they said we could visit her outside – there was always bad weather, being in Wales it’s quite normal, so, no, we weren’t able to. The only time I did, I could go and stand by – well, not by the window, because we had to be back from the window where she was in the main lounge with other residents, we weren’t allowed close up to the window to talk to her. So she really found it difficult to hear what I was saying to her. She said “Oh, can you come closer?” And they were, like, “No, you’re not allowed, you’ve got to stay back from the window”. So practically I had to shout into the lounge and it was really difficult, she couldn’t hear tidy.
Lead 2B: Sorry to ask you again to just make sure you slow down your answers. I know it’s incredibly difficult, but your evidence is very important, so it’s very important that we are able to record it.
So you’ve described how you visited your grandmother at the care home. Within the care home, were you aware of any steps that were taken to protect her from Covid, make sure that she remained infection-free?
Ms Amanda Provis: No.
Lead 2B: I think you described in your witness statement that around the middle of January 2021 a number of residents at your grandmother’s care home began to develop Covid symptoms, including your grandmother; is that right?
Ms Amanda Provis: Correct, yes.
Lead 2B: Were you aware at that stage what steps were taken within the care home to deal with what sounds like an outbreak of Covid?
Ms Amanda Provis: Yeah, they were all separated and isolated in their own individual rooms.
Lead 2B: I think it was on 29 January 2021 that you received the awful news that your grandmother had passed away in the early hours of the morning?
Ms Amanda Provis: That’s correct.
Lead 2B: Was anyone able to be with your grandmother in her very last moments?
Ms Amanda Provis: My uncle, which is my father’s brother, he was able to be with her when they knew that she was definitely was going to pass, but they wouldn’t allow my father, not even five minutes, to say his goodbyes. You know, they could have tested him and put some PPE on him and sent him to the room even for five minutes to say goodbye, but they wouldn’t let him.
Lead 2B: Are you aware whether your grandmother received any treatment between showing signs of having Covid and then sadly passing on 29 January?
Ms Amanda Provis: I know a doctor went there and that all they were advised was paracetamol for any temperatures that they had, but nothing else.
Lead 2B: So there were no attempts made to transfer your grandmother or any other resident, to your knowledge, to a hospital?
Ms Amanda Provis: That’s correct, yeah, no, nothing.
Lead 2B: Although I think I’m right in saying that more people were permitted to attend your grandmother’s funeral, there were still restrictions. Can you describe the restrictions and how that impacted on you but also your family.
Ms Amanda Provis: Yeah, so at that time we were allowed to have bubbles of people. So, as my father was on his own, he was part of my household bubble, which included myself, my husband and my two children, but in her funeral everybody was separated, including my father, so he was sat on his own in his own mother’s funeral and not sat with us, even though he was part of our bubble.
Lead 2B: Was it a result of losing both your mother and grandmother to Covid in the ways that you have just told us that you became involved with Covid Bereaved Families for Justice Cymru?
Ms Amanda Provis: That’s correct.
Lead 2B: Now, as you will understand, this module concerns Welsh Government decision-making, and Covid Bereaved Families for Justice Cymru have raised a number of issues and matters with us, some of which you’ll have heard me explore with Ms Grant a moment ago.
Ms Amanda Provis: Yeah.
Lead 2B: Given your own tragic experiences, would I be right to think that you are particularly interested in infection control in care homes, particularly in the first wave of the virus?
Ms Amanda Provis: Yes.
Lead 2B: As well as infection control in care homes, there were
also the restrictions that you’ve spoken about placed on
care homes generally, in terms of trying to keep
residents safe, but of course the terrible consequences
that that had on loved ones and relatives of loved ones
that wished to visit care homes; that is a concern of
yours –
Ms Amanda Provis: It is.
Lead 2B: – but also members of your group; is that right?
Ms Amanda Provis: That’s correct.
Lead 2B: What about the receipt of medical care within
care homes? Have some, perhaps a large number of
members of your group, raised the issue of whether or
not their loved ones received proper or adequate medical
care when in care homes?
Ms Amanda Provis: Yes, that’s correct.
Lead 2B: Now, outside the care sector, have a lot of your members
raised the issue of the 111 medical service, so the
phone system for receiving medical help?
Ms Amanda Provis: Yes, that’s correct.
Lead 2B: Turning to hospitals and the general provision of
medical care, what are your main concerns regarding
hospitals?
Ms Amanda Provis: I’m concerned that there wasn’t adequate PPE for anybody
that worked there, and that if there was adequate PPE
that it wouldn’t have been brought home to my mother and, you know, she would have still – hopefully have still been with us.
Lead 2B: And also a related issue, the issue of restrictions in visiting and the ability to see loved ones in hospital, is that another issue that –
Ms Amanda Provis: Yes, it is, yes. We would have liked to know the opportunity to visit more than we were allowed, because, you know, I barely saw my grandmother, and even in the hospital and in the nursing home, you know, I didn’t have the chance to be – you know, speak to her, when she had all her faculties there. Because due to the diabetes and it not being controlled properly, because obviously she wasn’t eating and drinking because she was unwell, then obviously then that did start to affect her faculties, so we couldn’t see her when she did have her faculties.
Lead 2B: What about palliative care, end-of-life care, is that an issue that is raised by your members?
Ms Amanda Provis: It is.
Lead 2B: Finally, as we’ve spoken about, restrictions on funerals and memorial services, is that an issue that concerns you but also members of your group?
Ms Amanda Provis: Yes, it is.
Mr Poole: Ms Provis, I appreciate this won’t have been easy, but I have no further questions for you.
The Witness: Thank you.
Lady Hallett: Thank you very much indeed. Would you like
to talk to somebody?
The Witness: No, I’m okay.
Lady Hallett: Are you sure? I saw you brought the
photographs.
The Witness: Yeah, thank you.
(The witness withdrew)
Lady Hallett: I don’t know if anybody else is getting cold
but I am getting distinctly chilly again.
Mr Poole: My Lady, we’re due next to hear from
Professor Emmanuel Ogbonna.
(Pause)
Mr Poole: Professor, could you start by giving us your full
name?
The Witness: Professor Emmanuel Ogbonna.
Professor Emmanuel Ogbonna
PROFESSOR EMMANUEL OGBONNA (sworn).
Questions From Lead Counsel to the Inquiry for Module 2B
Mr Poole: Professor, thank you for attending today and
assisting the Inquiry. Whilst you’re giving your
evidence, if you can please make sure that you keep your
voice up, so that we can hear you, but also so that your
evidence can be recorded and that you speak as slowly as
you can so that again your evidence can be recorded.
If I ask you anything that isn’t clear, please ask me to repeat it.
Professor Emmanuel Ogbonna: Okay.
Lead 2B: Now, you were asked by the Inquiry to provide a witness statement addressing the work that you carried out as part of the First Minister’s Black, Asian and Minority Ethnic Covid-19 Advisory Group, and we can see your witness statement on the screen. You signed that statement on 8 October 2023. Are the contents of that statement true to the best of your knowledge and belief?
Professor Emmanuel Ogbonna: They are.
Lead 2B: Now, we’ll come back to your statement and your work with the First Minister’s advisory group in due course. Could we start, though, with a few questions about yourself.
Professor Emmanuel Ogbonna: Okay.
Lead 2B: You are a professor of management and organisation at Cardiff Business School, Cardiff University?
Professor Emmanuel Ogbonna: I am.
Lead 2B: You joined Cardiff Business School as a lecturer, I think, in 1990, and were appointed to your present professorial position in 2002; is that right?
Professor Emmanuel Ogbonna: It is.
Lead 2B: I understand that your research cuts across the fields of organisation studies, strategy, marketing and human resource management?
Professor Emmanuel Ogbonna: They do.
Lead 2B: And your recent research interests have been in the areas of organisational culture, equality, diversity and inclusion and exploring the position of black, Asian and minority ethnic communities in the labour market; is that right?
Professor Emmanuel Ogbonna: It is.
Lead 2B: I think I’m right in saying that you’re also a trustee and vice-chair of the Race Council Cymru?
Professor Emmanuel Ogbonna: Yes, I am.
Lead 2B: Can we please briefly explain what the Race Council Cymru is and also your role within it.
Professor Emmanuel Ogbonna: Thank you. Race Council Cymru is one of the major, I would say, charities that look after the interests of black and minority ethnic people in Wales. Race Council is also the leading charity that looks after the Black Lives Matter movement and also that looks after the Windrush elders, the Windrush community that have been so badly dealt with by the state. Race Council Cymru is taking after looking after their affairs in Wales.
Lead 2B: Am I right that Race Council Cymru, it started in 2010 as a collection of grassroots community groups, but now it is the overarching umbrella body that brings together a range of organisations to combat racial prejudice, discrimination, harassment, victimisation, abuse?
Professor Emmanuel Ogbonna: Yes, it is.
Lead 2B: It was in your capacity as a member of Race Council Cymru that you joined with others and wrote to Dr Atherton, the Chief Medical Officer for Wales, in April 2020, expressing concerns about the disproportionate impact that the pandemic was having on people from black, Asian and minority ethnic backgrounds; is that right?
Professor Emmanuel Ogbonna: Yes.
Lead 2B: We can see a copy of that letter, it’s INQ000222867. We can see that at the top right it’s dated 14 April. It is marked “For the Urgent Attention of … Dr … Atherton”.
If we can go to page 2, we can see that the letter is signed off by Judge Ray Singh CBE, who is the chairperson of Race Council Cymru.
Professor Emmanuel Ogbonna: Yes.
Lead 2B: And he has also provided a witness statement to this Inquiry. Then, below his name, we can see the list of Race Council trustees and your name is at the top of that list.
Professor Emmanuel Ogbonna: Yes.
Lead 2B: We can, please, go back to the first page and look at the first paragraph on page 1.
The letter references in that first paragraph the report from the Intensive Care National Audit and Research Centre, which suggested that 34% of critical care patients in England, Wales and Northern Ireland were from black, Asian and minority ethnic backgrounds.
As the letter goes on to say, the first ten doctors to die from Covid-19 were from black, Asian and minority ethnic groups, and a disproportionate number of nurses and other healthcare workers that have lost their lives have also been from black, Asian and minority ethnic communities.
Then if we zoom out, the letter goes on to request urgent action to be taken to protect the lives and wellbeing of black, Asian and minority ethnic communities in Wales.
As well as that letter, written on behalf of Race Council Cymru, are you also aware that Professor Singhal, in her capacity as the chair of the British Association of Physicians of Indian Origin, wrote to Dr Atherton and Dr Andrew Goodall, who at the time was the chief executive of NHS Wales, raising similar concerns?
If we could, please, have a copy of Professor Singhal’s letter – thank you – it’s INQ000222868.
This is dated a few days later, so this is 17 April 2020.
If we can look, please, at page 2 of that letter, the words in bold, it calls for urgent action, in particular it calls for:
“… employers to urgently carry out a stratified risk assessment so that [the] Healthcare workers on the frontline of tackling the pandemic are not unnecessarily put in harm’s way.”
Thank you.
As regards the response to the Race Council’s letter, your co-authored letter, you say in your witness statement that the First Minister acted promptly, and on 29 April, so that’s two weeks after receipt of the letter, he established the Black, Asian and Minority Ethnic Covid-19 Advisory Group to look into the issues that had been raised in that letter and Professor Singhal’s letter, and to recommend the necessary courses of action to alleviate those problems?
Professor Emmanuel Ogbonna: Yes.
Lead 2B: Do you think it should have taken letters like yours and Professor Singhal’s, or do you think that the Welsh Government ought to have recognised the disproportionate impact of Covid for themselves and taken earlier action?
Professor Emmanuel Ogbonna: My understanding was that at the time the Welsh Government and people within it were themselves becoming as concerned and that at the time our letter was written they had come to the same realisation and were thinking of what to do. That was my understanding at the time.
Lead 2B: Judge Singh was invited to chair the First Minister’s advisory group.
If we could, please, have on screen INQ000267870.
These are the terms of reference for that advisory group. In the first paragraph, the terms of reference identify the concerns that Race Council Cymru had identified in the letter we’ve looked at, namely the disproportionate impact of Covid-19 on people from black, Asian and minority ethnic backgrounds, “with consequent adverse health outcomes”.
Then if we can just zoom out, the group – the aims of the group are then set out in those four bullet points. So namely to advise the Welsh Government specifically on:
“• Any effective measures that could be put in place to quantify and evaluate risks;
“• Any avoidable harms and effective risk assessment measures;
“• Possible interventions and system remedies; and
“• Any other issues required by Ministers.”
Now, as you say in your statement, the group decided that two subgroups were required to explore, first, the socioeconomic issues that were implicated, and, second, the health and social care issues that were involved.
If we can please, in this document, look at page 3 of the terms of reference, these are the terms of reference for the scientific, or risk assessment, subgroup. Now, that subgroup was co-chaired by Professor Singhal and Helen Arthur; is that right?
Professor Emmanuel Ogbonna: Yes.
Lead 2B: And that was specifically tasked to come up with a risk assessment tool. If we could please look at page 5 of this document, these are the terms of reference for the socioeconomic subgroup –
Professor Emmanuel Ogbonna: Yes.
Lead 2B: – which you were invited to chair; correct?
Professor Emmanuel Ogbonna: Yes.
Lead 2B: If we just look at that list of deliverables, including at point 2:
“Propose short term options to minimise any exacerbation of inequalities identified.”
Would it be right, Professor, to say that the work of both subgroups was carried out at pace?
Professor Emmanuel Ogbonna: Yes.
Lead 2B: And commendably your socioeconomic subgroup managed to produce a detailed report in June 2022 –
Professor Emmanuel Ogbonna: 2020.
Lead 2B: 2020, sorry. That’s to say, within two months of being commissioned to produce a report?
Professor Emmanuel Ogbonna: Yes.
Lead 2B: And I think the risk assessment subgroup also produced a risk assessment tool and presented that to the Welsh Government by mid-May 2020?
Professor Emmanuel Ogbonna: Yes.
Lead 2B: I’d like to first look at the work of your socioeconomic subgroup, if I may.
Professor Emmanuel Ogbonna: Yes.
Lead 2B: We can see the report, certainly the first page of the report – it’s INQ000068463, and if we could, please, go to page 29 of that document – we see there the membership of your subgroup. So we can see that the group included representation from black, Asian and minority ethnic NHS care and care workers, Public Health Wales, NHS Wales health boards and trusts, the Equality and Human Rights Commission in Wales, as well as Welsh Government officials; is that right?
Professor Emmanuel Ogbonna: Yes.
Lead 2B: Before we look at the themes covered by the report and the recommendations that your group made, I’d like to just understand a bit about the methodology that you employed.
How did you gather the data that informed your report?
Professor Emmanuel Ogbonna: Okay, so because we didn’t have the type of time that one may have required to conduct your regular research, what we did was to rely extensively on evidence that was already published, so evidence on the disproportionate outcomes already – that are already known, in terms of employment, in housing and other areas.
We especially relied on the report by the EHRC talking about Wales and the fairness within Wales. But more importantly we relied on people: we gathered evidence from around 400 people from grassroots communities, whom we invited to participate in Zoom sessions and the like, and we were able to have these sessions practically on a daily basis at the time, from memory, you know, inviting different types of people from grassroots ethnic minority communities to come in and talk to us about what was happening to them. So we relied on that lived experience of racism that, in a sense, was identified by those people extensively in our report.
Lead 2B: I think I’m right, aren’t I, that a deputy minister attended some of your meetings, and that would have been Jane Hutt?
Professor Emmanuel Ogbonna: Yes.
Lead 2B: In general terms, how would you describe the Welsh Government’s engagement with your group?
Professor Emmanuel Ogbonna: The Welsh Government was very engaged. The Deputy Minister and Chief Whip at the time, Jane Hutt, attended – I remember attending many, if not most of, the Zoom calls that we had, and she was able to identify what I describe in my witness statement as some “quick wins”. So people would be talking about their experiences and then she would instruct civil servants to look into those and were – and in a sense was able to remedy some of the problems that were happening on the ground. So, for example, there were cases where people were saying that they weren’t being given appropriate PPE in their respective hospitals, and they attributed that to their race and ethnicity, and it was then possible for the Deputy Minister to instruct the senior civil servants that were on the calls as well, you know, to investigate those and to do something about that.
There was also another case I remember of people who were saying that they were being forced to work for so many hours to be able to pay for their visas, because of the extra imposition on health and social care workers by the immigration authorities, the Home Office, that the amount of money that they needed to pay to be able to have their visas extended, and that that was exposing them to additional risks. And I know that, because those rules were not devolved to the Welsh Government, the Deputy Minister and Chief Whip was able to negotiate – to at least to instruct officials to discuss the possibilities of removing those levies, extra levies on people, with the government in Westminster. I don’t know how successful that was, but in the end that became something that the Prime Minister announced, that those levies were removed.
Lead 2B: So these are issues that are being identified in meetings –
Professor Emmanuel Ogbonna: Yeah.
Lead 2B: – that the Welsh Government are attending?
Professor Emmanuel Ogbonna: Yes.
Lead 2B: And not necessarily waiting for the production of your report in June –
Professor Emmanuel Ogbonna: Yes.
Lead 2B: – but these are being actioned whilst that report is still being worked on –
Professor Emmanuel Ogbonna: Yes.
Lead 2B: – is that right?
Professor Emmanuel Ogbonna: Yes, yes.
Lead 2B: Now, a number of things emerged from the report prepared by your group and I don’t propose to discuss all of them, I’d just like to discuss some of the key things and then in so doing look at the recommendations that your group makes and then look at the response of the Welsh Government.
I’d like to start with ethnicity data, or I probably should say lack of ethnicity data.
Now, we don’t need to go to the page of your report, but it’s paragraph 26, it starts with the sentence:
“Data on ethnicity across all health and social care services and many other public services is poor.”
Is this something that you found to be a particular problem in Wales?
Professor Emmanuel Ogbonna: Yes.
Lead 2B: And one area of concern that you identified is that data on ethnicity is not recorded on death certificates in England and Wales, and you say in the report the recording of births and deaths is a reserved matter for the UK Government.
Can you briefly just explain why that was an issue that you specifically identify?
Professor Emmanuel Ogbonna: I think if you are looking to have an accurate statistic on death rates, it would be useful to have the ethnicity recorded. If you don’t have the ethnicity recorded, you may actually not be accurate in the data that is being put out. So we may not even know how bad the problem we’re dealing with was.
Lead 2B: Having identified the issue, are you able to say what steps the Welsh Government has taken to address that issue, it being, as you identify, a reserved matter for the UK Government?
Professor Emmanuel Ogbonna: I know that there, again, this was one of the issues that was taken up and there were discussions with the relevant departments at the Home Office. I don’t – and I know that there was a group that was looking into that specifically, but I don’t know the outcome of that.
Lady Hallett: Professor, I think – I heard about this in a previous module – I think it’s not straightforward, is it? I can see the sense in what you’re saying, if you want to gather data, but I think I heard from another witness in another module that it’s not entirely straightforward recording ethnicity on death certificates.
Professor Emmanuel Ogbonna: It’s very difficult, my Lady, because, for whatever reason, not everybody feels comfortable, and – and ethnicity and race are sociological concepts, modern day, and biological in that sense, so it’s not a straightforward thing. But I think one of the reasons it’s not straightforward, it’s also because people are not always certain about what the data will be used for, so they want to shy away from them. But I do agree that they’re not.
Lady Hallett: Thank you.
Mr Poole: Another recommendation – so we’re still on the question of ethnicity data – that you make in this area is linking databases to provide better data on different types of mortality, so disaggregated by different protected characteristics, including ethnicity.
If we can just look at the Welsh Government response to your report, so it’s INQ000285930.
So as we see on that first page of the response, first published 24 September 2020 and then updated on 30 December.
If we can, please, look at page 13 of this report.
This is a section of the response dealing with ethnicity data and the Welsh Government says that it agrees that:
“… it is important to use innovative techniques including data linking to help improve the quality of data available on the population disaggregated by different characteristics.”
And then they say they’ll:
“… explore ways to link data on outcomes to enable this.”
And to that end will use the Administrative Data Research Unit and the Secure Anonymised Information Linkage (SAIL) Databank.
Are you aware of that work, Professor?
Professor Emmanuel Ogbonna: There was a group of people that were dedicated to looking at this area of work, you had population specialists that were doing that, and they – they did report to some of the meetings, some of which I attended, some that I did not. So I was aware that there was a group looking into this at the time.
Lead 2B: Are you satisfied with the Welsh Government’s response to the concerns about ethnicity data that your report identifies, or is there more that you would like to be done?
Professor Emmanuel Ogbonna: I would say that it is an ongoing thing and that the groups that were identified that were looking into it at the time were – when I spoke to some of them, I got the impression that they were positive about what the outcome would be in the end, but I have to say I haven’t been in contact since then, so I don’t know.
Mr Poole: My Lady, if that’s an appropriate moment for a break.
Lady Hallett: Yes, of course.
I hope you were warned, Professor, we take a break regularly for the benefit of the stenographer and everybody else, so I shall return at 11.30.
(11.14 am)
(A short break)
(11.30 am)
Lady Hallett: Mr Poole.
Mr Poole: Professor, another key theme of your report is the significantly higher risk of death involving Covid amongst those of non-white ethnicity. I don’t need you to pull this up, but paragraph 33 of your report identifies that the risk of Covid-related death in males and females of black ethnicity is 1.9 times higher than those with white ethnicity and the risk of Covid-related death for men of Bangladeshi and Pakistani ethnicity is 1.8 times higher than white males.
You go on at paragraph 34 of the report to say that there is a considerable level of anxiety amongst employees about the risks of Covid-19 and the potential additional risk for black, Asian and minority ethnic workers as an at-risk group, and the report explains how this is being addressed by the risk assessment tool that was developed by the risk assessment subgroup.
Now, as we touched on earlier, Professor Singhal’s subgroup was specifically tasked with coming up with a risk assessment tool for frontline health and social care workers, and I understand that you were not involved with the work that was done in that area. I would, though, like to ask you some questions, if I may, about the risk assessment tool.
Now, Professor Singhal has produced a witness statement to this module.
If we could, please, see that, it is INQ000251934.
At page 3, paragraph 6, Professor Singhal describes there the first meeting of the risk assessment subgroup that took place on 5 May 2020, and then we see in that table Professor Singhal sets out the draft risk assessment tool.
Now, the way the tool works, as we can see, is that it identifies risk factors such as age, sex and comorbidities, which includes ethnicity, and allocates each of those a score, and then once a person has added up their score they can see their own risk.
If we can go over the page to page 4, we can see: a score of 0-3, low risk; score of 4-6, high risk; and a score of 7 or more, very high risk.
Then the person concerned can identify the actions that they should take.
So, for example, as we see in that table, those at low risk should continue to work following all recommended hygiene and social distancing measures, whereas those at the very high risk should work from home if possible.
Professor Singhal explains in her statement, we don’t need to see this part of it, how that first draft of the risk assessment tool was submitted to the Welsh Government for consideration and discussion on 13 May, and it was then launched on 26 May, with a written statement being made to the entire NHS and social care sector in Wales the following day.
Now, insofar as you are able to comment, do you believe that the work of the risk assessment subgroup, and in particular the development and roll-out of the risk assessment tool, could or should have been earlier?
Professor Emmanuel Ogbonna: I think my understanding at the time was that the people worked at pace to try to develop this, and it was actually the first one in the country, as I understood it at the time, was the quickest one to be developed. Whether they could have developed one earlier, I am not able to say, but I believe they worked extremely hard and were able to develop this as quickly as they could, and in fact were modifying it as they went along because they wanted it to be as accurate a measure and as useful a tool as it could possibly be.
Lead 2B: We can see the actual tool at – if we can have this displayed, please – INQ000023242.
This is a live resource, intended to be completed by – online by everyone working or volunteering in health and social care.
If we can go to the – thank you.
That explains there the purpose of the tool. So it operates essentially in the same way as the draft that we’d just seen in Professor Singhal’s witness statement. So, again, scores being allocated to certain risk factors and then, depending on an individual’s score, they know what actions they should take.
You make the point in paragraph 34 of your group’s report that the risk assessment tool has been developed to be used by all staff, so not just those from black, Asian and minority ethnic backgrounds; that’s right?
Professor Emmanuel Ogbonna: Yes.
Lead 2B: And in terms of recommendations, one of the recommendations you make in your group’s report is to ensure the wide dissemination of the risk assessment tool and encouragement of the use of the tool in settings wider than health and social care?
Professor Emmanuel Ogbonna: Yes.
Lead 2B: Professor Singhal, but also Jane Hutt in her witness statement to the Inquiry, explained how the risk assessment tool has been widely disseminated, and since May 2020 has been expanded to include education, childcare, play work, youth group, further education and also the police. And the tool continues to be used today. So the recommendation you made in your report appears to have been actioned effectively; would you agree?
Professor Emmanuel Ogbonna: I would.
Lead 2B: The next key theme I’d like to discuss is the communication of health and social care messages to black, Asian and minority ethnic communities. And again you deal with this – just to locate us, it’s paragraphs 49 to 51 of your report, but I don’t need you to go to it.
Can you briefly outline some of the issues that you identified in respect of communication of health and social care messages?
Professor Emmanuel Ogbonna: I think there was a key barrier in the sense that the language of communication, which is English, Welsh, was not that which was spoken by many of the people from ethnic minority communities that we may have wanted to have reached and that were at very high risks, and we wanted to be able to encourage the government and the healthcare providers to be able to find ways of developing some of these things in different languages, messages in different languages, so that they could be able to communicate those effectively.
There was also the issue of the cultural differences and – that might impact on the meaning of the messages being communicated, and the impact of those messages, and this was where we wanted to be able to use people with lived experience as much as we could to be able to ensure that messages reached the people who were very vulnerable but weren’t initially receiving some of those messages.
Lead 2B: I think you say in the report that digital engagement and engagement with community leaders in particular was key –
Professor Emmanuel Ogbonna: Yes.
Lead 2B: – is that right?
Professor Emmanuel Ogbonna: Yes, yes.
Lead 2B: And the recommendation your group makes was to develop a clear multichannel communications strategy for health and social care, which identifies effective channels to disseminate information and includes funding for BAME targeted outreach and consultation activities?
Professor Emmanuel Ogbonna: Yes.
Lead 2B: If we can, please, look at the Welsh Government’s response.
So it’s INQ000285930, and we’re looking here at page 18.
Reflecting on your group’s recommendation, the Welsh Government state that they have:
“… formed a cross-government group to develop a communications strategy which includes health and social services but also wider policy areas to ensure greater joined-up thinking.”
Are you satisfied with the work carried out to date by the Welsh Government to improve public health and social care messaging?
Professor Emmanuel Ogbonna: It is definitely better than it was before, so from that point of view I would say that there is an incremental progress in this area.
Lady Hallett: You understand that, do you, Professor? It goes on:
“… form a cross-government group to develop a communications strategy …”
So all talking about communications, and then it talks about:
“Following recently-completed insight work and stakeholder channel mapping …”
Doesn’t sound like a very good communication in itself, does it?
Professor Emmanuel Ogbonna: Yes.
Lady Hallett: Anyway, what does that mean, “completed insight work and stakeholder channel mapping”, as far as you understand it?
Professor Emmanuel Ogbonna: My Lady, I think this is something for the government to …
Lady Hallett: Well ducked, Professor.
Mr Poole: Professor, if we can, please, look at page 19 of this same document but the second paragraph, so a bit further on, the Welsh Government, in perhaps slightly clearer language, cite the fact that:
“The … Test, Trace and Protect … programme has developed a Black, Asian and Minority Ethnic Outreach Plan …”
This is obviously written in September 2020 and updated later that year.
In your opinion, was the Welsh Government right to hold out the test, trace, protect programme as an example of an accessible public health messaging programme targeting black, Asian and minority ethnic communities?
Professor Emmanuel Ogbonna: Yes, I think there was quite a lot of emphasis on that at the time, and I remember that there was an initiative to engage people from minority ethnic backgrounds to help in reaching the people that needed to be reached at the time. So …
Lead 2B: If I can move to another theme, that of security of employment and income, and you make the point in your report – it’s paragraph 59 – that the Institute for Fiscal Studies in its analysis for England and Wales notes in particular that black, Asian and minority ethnic people are more likely to be employed in shutdown sectors. So, for example, Bangladeshi men are four times as likely as white British men to have jobs in shutdown industries. And similarly, black African and black Caribbean men are 50% more likely than white British men to be in shutdown sectors.
Now, in your report you note that in relation to key workers and those employed in occupations at higher risk of Covid-19, the analysis of Welsh employees shows that those from black, Asian and minority ethnic backgrounds are overrepresented in healthcare and social care; is that right?
Professor Emmanuel Ogbonna: Yes.
Lead 2B: Your report makes a number of recommendations as to how the Welsh Government could mitigate the disproportionate impact of Covid-19 and employment support schemes as well on black, Asian and minority ethnic people in Wales.
One of those recommendations is for the Welsh Government to establish a social partnership-led job matching redeployment scheme across Wales. What has been the Welsh Government’s response to this and to other recommendations your group has made in this area?
Professor Emmanuel Ogbonna: I know that social partnership is an area that the Welsh Government has been very keen to work on, and at the time they talked about developing that area, and I believe this is something that has been done and that is being done. Whether that has been enough or was enough at the time to mitigate the risks that were identified, I think it’s a different matter. But then the time was limited to be able to judge that. But I know that they were interested in doing that.
Lead 2B: I think my understanding is that since your group reported, the Welsh Government has set up three regional employment response groups. Are you aware of that?
Professor Emmanuel Ogbonna: I – not without going back to my notes now, not something I recall.
Lead 2B: If we can just look at the Welsh Government’s response, again, to your report, so it’s INQ000285930, but this time we’re looking at the bottom of page 21, the Welsh Government explains the aim of, as I’ve just referred to, these three regional employment response groups. Then over the page, these groups will “focus specifically on the employability issues facing Black, Asian and Minority Ethnic people”.
In your view, does the setting up of these response groups go some way to mitigating the disproportionate impact of Covid-19 that you’ve identified in your report or is this not enough or would you like to see something different being done?
Professor Emmanuel Ogbonna: I think the number of black and minority ethnic people that lost out from Covid-19 was very high and it’s very difficult to see how this on its own would have been sufficient to have mitigated that loss.
Lead 2B: In the same section of this response, but a bit further down, so page 22 now, in the second paragraph, the Welsh Government referred to the fact that:
“Since 2016 [there has been someone appointed to] a Champion role, [although] now called a Strategic Equality and Diversity Lead … to [increase] the participation of individuals from protected groups on to an apprenticeship.”
And I believe the current Strategic Equality and Diversity Lead was a member of your subgroup; is that right?
Professor Emmanuel Ogbonna: Yes.
Lead 2B: The Welsh Government’s response talks about equality, diversity and inclusion strategy and a suite of actions taken in conjunction with work-based learning providers to support black, Asian and minority ethnic people. Is this something that you have seen actually put in practice since your group reported?
Professor Emmanuel Ogbonna: I can’t say that I have followed this intimately, no.
Lead 2B: I’d like to move to another issue identified in your report, which is the issue of living with race inequality in Wales. You make the point at paragraph 19 of your report that:
“The … pandemic has further exposed existing racial equalities in Wales.”
And you refer to the Equality and Human Rights Commission report “Is Wales Fairer?” which made some deeply troubling findings. You highlight some of these in your report, such as the fact that race was a motivating factor in 68% of hate crimes reported and recorded in Wales in 2018/19; is that right?
Professor Emmanuel Ogbonna: Yes, yes.
Lead 2B: From your research, and in particular your engagement with people at a grassroots level that we heard about earlier, would it be right to say that higher levels of violence and abuse experienced by some black, Asian and minority ethnic groups has led to a sense of isolation and loneliness, perhaps a sense of not belonging?
Professor Emmanuel Ogbonna: Yes.
Lead 2B: Did your research suggest that those feelings of isolation were exacerbated by Covid?
Professor Emmanuel Ogbonna: Yes.
Lead 2B: Your report also highlights the link between loneliness and mental health problems, and the point is made at paragraph 22 of your report that mental health provision in Wales is not meeting demand. Is this a particular issue that your group identified in respect of those from black, Asian and minority ethnic communities in Wales?
Professor Emmanuel Ogbonna: Yes. Mental health issues are more likely to be profound in – they’re more likely to be found in ethnic minority communities and they’re more likely – the consequences are more likely to be profound amongst those groups, so it was a particular concern during a pandemic like Covid that that would be exacerbated in that sense.
Lead 2B: In terms of recommendations, the Welsh Government made a commitment in March 2020 to develop a race equality plan for Wales. Now, the Inquiry understands that progress on that work paused in the early months of the pandemic. Unsurprisingly, your report recommends that work on developing that race equality plan should be progressed as a priority?
Professor Emmanuel Ogbonna: Yes.
Lead 2B: And your report states that:
“The final Race Equality Plan needs to lead to [in your words] a substantive and comprehensive Race Equality Strategy for Wales.”
Professor Emmanuel Ogbonna: Yes.
Lead 2B: Now, at the time that the Welsh Government responded to your report in late 2020, what was said is that the aim was to draft a race equality plan to go out to full public consultation by the end of 2020 with a final plan developed by the end of that Senedd term, which would have been May 2021. I think it would be right that consultation took longer than anticipated?
Professor Emmanuel Ogbonna: Yes.
Lead 2B: But is it right that by June 2022 the Welsh Government were in a position to publish its “Anti-racist Wales Action Plan”.
Professor Emmanuel Ogbonna: Yes.
Lead 2B: If we can have up INQ000227788, there is the first page of that plan.
And if we can go to page 6, please, you are described in this plan as the co-chair, along with Dr Andrew Goodall. Can you briefly explain your role in the production of this plan?
Professor Emmanuel Ogbonna: I was invited to co-chair the group, the steering group, that led the development of the plan, initially to co-chair with the then permanent secretary, Dame Shan Morgan, and then latterly Dr Andrew Goodall, and I – we led the group, the permanent secretary and I led the group that developed the plan.
Lead 2B: If we can have a look, please, at page 23 of this plan, which is, I think, the acknowledgements section.
Set out on this page is a long list of individuals and groups that provided evidence and insight to help produce the plan, and we see there the third bullet point references the Covid-19 black, Asian and minority ethnic socioeconomic and risk assessment subgroups, so they were the two subgroups that we have been talking about earlier.
Is it right to say that many of the recommendations that we have looked at from the socioeconomic subgroup report have been incorporated into this action plan?
Professor Emmanuel Ogbonna: The fundamental basis of the plan was to deal with those recommendations.
Lead 2B: And in terms of ensuring that the action plan is actually implemented, am I right in thinking there is an independent accountability group to oversee that?
Professor Emmanuel Ogbonna: Yes.
Lead 2B: You are the co-lead of this group alongside Dr Goodall; is that right?
Professor Emmanuel Ogbonna: Yes.
Lead 2B: I think as described in an appendix to this action plan, which we don’t need to look at, the overarching purpose of that accountability group is to ensure progress towards the purpose of the plan by holding those responsible to account for what they do or don’t deliver; is that right?
Professor Emmanuel Ogbonna: Yes.
Lead 2B: Does that accountability group meet with members of the Welsh Government?
Professor Emmanuel Ogbonna: Yes, there is – there are regular meetings with the social justice minister and bilateral meetings with other ministers of state, and also the permanent – the First Minister as well.
Lead 2B: Just taking a step back, if we can, looking at the report that we started looking at, so the report of your socioeconomic subgroup, particularly the recommendations in that report, and then the work that was carried out culminating in this anti-racist action plan in June 2022, and obviously in your capacity as the co-lead of the accountability group, is this action plan being delivered in Wales?
Professor Emmanuel Ogbonna: It is a work in progress, I think is the best way for me to describe it.
And why do I say that? I say that because it is trying to address a problem that is intractable. One of your classic definitions of a wicked problem, which is racism, and something that has existed for many generations, and it is trying to address it in a way that is very different from the ways in which people have tried to address this in the past, and those ways people tried to address it in the past have failed to deliver any change.
So because it is almost novel in its approach – it’s the only nation in the world that has tried this, Wales. Because it’s almost novel in its approach, it’s having to deal with multiple complexities and having to deal with multiple particularities in terms of the constituencies, the stakeholders that are involved, and it’s been difficult in some cases to try to reconcile some of those differences, but it is a work in progress in the sense that the people that are doing it are committed to getting it right. The First Minister, the Minister for Social Justice, other political parties in Wales, have signed up to this, and we are, in a sense, fortunate to be able to have that political centrality, and what we are now doing is trying to sell this to the wider population in Wales, and that is a difficult task, but it’s work that we are determined to succeed in.
Lead 2B: So it may, as you say, take time, but you have political buy-in, and within this action plan the structure is there to address the issues that you’ve identified?
Professor Emmanuel Ogbonna: The structure is there to address the fundamental issues, because the fundamental problem is one of disproportionate outcomes that are defined or exacerbated by race and ethnicity, and if we can get that right, then what we will do is to bring ethnic minority people to the same level as everybody else. And there are other problems that other people are experiencing, but we will then all be at the same level experiencing those problems.
So those problems may not and are not necessarily going to go away, but at least we shouldn’t then have worse outcomes within bad outcomes. So it’s to bring everybody to the same level and then we can all experience the same problem or enjoy the same level of prosperity, whatever that may be.
Lead 2B: And in terms of the issues that you’ve identified in your report and that are identified in the action plan, in your opinion, is Wales in a better or worse position now than it was at the start of the pandemic?
Professor Emmanuel Ogbonna: I think Wales is definitely in a better position, better in the sense that we’ve at least recognised that racism is institutionalised in – that’s the understanding here in Wales and the acceptance here in Wales, something that is not the case in other parts of the country. So from that standpoint, I think we are in a better position to be able to recognise that there may be additional problems that may be linked to race and ethnicity that we would need to take account of if we were ever to be in this type of position in the future. Are we in the position that we will no longer have the problems? That’s why I think it’s a work in progress. Not at this point, I would not say, but I would hope that if the Anti-racist Wales Action Plan is to be implemented in full that we will be in a position in the future. But at this point we are not.
Mr Poole: Thank you, Professor. I don’t have any further questions for you.
Lady Hallett: I think Ms Heaven may have.
Questions From Ms Heaven
Ms Heaven: Good afternoon, Professor Ogbonna, I represent the Covid-19 Bereaved Families for Justice Cymru.
I want to ask you some questions, please, about the topic of access to PPE and RPE for black, Asian and minority ethnic health and social care workers, which you’ve already explained to CTI was an issue that you identified early on. So I’m going to start at the very first briefing of your group to the First Minister for Wales, Mark Drakeford, and Welsh ministers, which – and this was the Covid-19 core group, which we know happened on 20 May 2020.
But before I get that document up, just so that you understand, we can see that you’re not at that briefing, but I’m going to see if you can assist us, please.
So if we could first get that document up. It’s INQ000221152, please, and I think it’s page 3.
Just look at page 1 there. We can see, as I’ve said, this is the Covid-19 core group meeting, 20 May, and as we can see, as I say, you’re not present, it’s Judge Ray Singh and Professor Singhal who are giving the briefing there on that day.
So if we could go to page 3, please.
So this is where we start to see the update from your group, and we can see there’s a welcoming there.
If we look at paragraph 24 we can see there has been an explanation that:
“The group [has] been working with stakeholders representing BAME communities, expert advisers …”
Then if we go on to page 4, please.
I know it’s very small there, but we can see at paragraph 25 there is discussion of the terms of reference – thank you very much – which you’ve touched upon.
If we look then at 26, we can see some background information as to the two groups that we’ve heard about.
If we go on to paragraph 27, we can see reference to the risk assessment tool that we’ve heard about.
Then if we go back to the main document, there are a few more general paragraphs, and at the end there, paragraph 31, the First Minister is thanking the group.
So what we can see from these minutes, appreciating that you were not there, is that there’s no discussion in this meeting and indeed there’s no evidence to suggest that the First Minister for Wales, Mr Drakeford, asked any questions about the lack of PPE and RPE in the hospital setting in Wales and whether your group had a view on this, being a significant risk factor to black, Asian and minority ethnic health and care workers contracting Covid-19, and indeed dying.
Now, if I just set a bit of context before I ask my question, it might be suggested that this is a curious omission because as we can see this is the end of May and by this stage a number of doctors, nurses and other health and social care workers of black, Asian and minority ethnic backgrounds had lost their lives, and of course we’ve seen from the letter that your group sent in that you were raising this as a real concern in the context of Wales.
Just to note, we know that the first reported death of a health worker in Wales was 6 April, and that was Jitendra Rathod, a heart surgeon at University Hospital of Wales.
Now, my question is this: you were not at the meeting but are you surprised that at this very first discussion that your group had with the First Minister for Wales, there was seemingly no mention by the First Minister of Wales of the significant and fundamental issue that many health and social care workers in Wales, including black, Asian and minority ethnic health and social care workers, simply didn’t have access to PPE or RPE, let alone the fact that what they did have wasn’t appropriate. So the question is: are you surprised that this didn’t come up?
Professor Emmanuel Ogbonna: Without presuming to speak for the First Minister, what I would say is that it could well be that he had relied on the briefings he received previously, because – I’m not sure whether I mentioned this in my previous answer, that one of the calls we had, one of the Zoom sessions we had, people that work in healthcare and social care, especially some nurses and doctors, were expressing concern that PPEs were not being distributed to them because they were locum workers, and the then Deputy Minister and Chief Whip was on that call and she instructed the senior civil servants that were on the call to investigate that and to instruct all health authorities to be fair in their distribution of PPEs and to ensure that there was no element of racism within that.
So whether they assumed that this was something they had already resolved or not, I don’t know, but I’m not able to speak to that.
Ms Heaven: Okay. Let me move on to the second question, then. This is the Welsh Government response, and this is to your report, which we know was June 2020, and the Welsh Government response was December 2020.
So this is INQ000285930, and it’s page 11, please.
Now, this is the section of the report which deals with the topic of PPE, and I’ll come on to it in a minute, but let me just set the context.
You have already explained to the Chair and Counsel to the Inquiry that Jane Hutt had heard the complaints about the lack of appropriate PPE first-hand in the Zoom meetings. So the Welsh Government clearly knew there was a problem in wave 1 around access to PPE and RPE. However, if we look at this official response, and if we just look at it now:
“Effective supplies of suitable quantities of PPE are essential to protect the workforce in conditions where the risk of COVID-19 infection cannot be mitigated in other ways. The report of the Socio economic Sub Group emphasised the need to ensure sufficient PPE was available both now and for the future.”
Then it goes on to explain some information about action that’s being taken.
We can see in this official Welsh Government response that there would appear to be no acceptance or recognition from the First Minister for Wales, Mr Drakeford, because he authored and signed this response, that the Welsh Government had fundamentally failed black, Asian and minority ethnic health and social care workers in Wales in wave 1 by simply not providing access to any PPE and RPE, let alone appropriately fitting PPE.
So it might be suggested that this response therefore is weak and obfuscatory on this issue. Do you think this response from Mr Drakeford, on behalf of the Welsh Government, on this really serious issue of access to PPE and RPE, was adequate, bearing in mind what your group had identified?
Professor Emmanuel Ogbonna: I hadn’t interpreted it as such, maybe because I was in it and was aware that there were multiple layers, so there was often a problem of implementation, which I think is a key thing in achieving racial equality. A problem with implementation was the problem that was caused by middle and lower level managers doing their own things, which are often very different from what top management may want to do.
So my understanding was that when that issue came up the Deputy Minister was very strong and forthright in instructing the senior civil servants, and they went ahead and wrote to – that was my understanding – to all the healthcare providers, emphasising their role in this area. And whether or not then they should have included that in this report is a different matter, what –
Ms Heaven: This was the public response from the Welsh Government.
Professor Emmanuel Ogbonna: Yes.
Ms Heaven: It would have been nice to have seen some reflection on PPE, wouldn’t it, in there?
Professor Emmanuel Ogbonna: Perhaps maybe that should have been included in this report, to reflect that there was a concern about this and that that had been handled. But I didn’t author the report so I’m not able to comment.
Ms Heaven: Of course, thank you very much.
Those are my questions, my Lady.
Lady Hallett: Thank you, Ms Heaven.
You’re a generous soul, Professor, I think. Thank you very much for your help.
The Witness: Thank you, my Lady.
(The witness withdrew)
Mr Poole: My Lady, we’re next going to hear from Professor Debbie Foster. We just need to do some rearranging on the counsel bench.
Lady Hallett: Okay.
Professor Debbie Foster
PROFESSOR DEBBIE FOSTER (affirmed).
Questions From Counsel to the Inquiry
Ms Paisley: Could you commence, please, by giving your full name.
Professor Debbie Foster: Yes, Deborah Foster, or Debbie Foster I’m known as.
Counsel Inquiry: Thank you.
Professor Foster, thank you very much for attending today and for assisting the Inquiry. As you give evidence, please remember to keep your voice up, and if you can speak into the microphone as we have a stenographer who’s taking a note for the transcript.
You have kindly provided a witness statement for this module. We don’t need to look at it at the moment, but it can be found under reference INQ000274189. It’s dated 16 January 2024, and can you confirm you signed that statement, please?
Professor Debbie Foster: Yes, I confirm.
Counsel Inquiry: Can you confirm that the contents of that statement are true to the best of your knowledge and belief?
Professor Debbie Foster: Yes.
Counsel Inquiry: Thank you very much.
It’s right that you are a professor of employment relations and diversity at Cardiff Business School, Cardiff University?
Professor Debbie Foster: Yes.
Counsel Inquiry: And you were asked to provide a witness statement to this module of the Inquiry to outline the work you undertook in respect of the report, Locked Out: Liberating Disabled People’s lives and rights in Wales beyond Covid-19.
Professor Debbie Foster: Yes.
Counsel Inquiry: If you’re content, that’s also known as the Locked Out report for short.
Professor Debbie Foster: Yes.
Counsel Inquiry: Can we begin, then, please, with some questions about how the Locked Out report came to be produced.
Now, whilst you were not an attendee, can you help us with this, please: the Welsh Government’s Disability Equality Forum comprises disabled people and representatives from disabled people’s organisations across Wales; is that correct?
Professor Debbie Foster: That’s correct.
Counsel Inquiry: The chair throughout the pandemic was Jane Hutt MS, who is currently the Minister for Social Justice and Chief Whip?
Professor Debbie Foster: Yes.
Counsel Inquiry: Provided to you in advance of giving evidence today were the minutes of a meeting of the forum.
If we could have those on screen, please, it’s INQ000281763.
And we can see this is dated 23 June 2020.
If we can, please, go to page 4, and paragraph 3.7, in the middle of the page, the following is noted:
“The DMCW …”
Which would be Jane Hutt; is that correct?
Professor Debbie Foster: Yes.
Counsel Inquiry: “… thanked members for their comments and agreed there is a need to consider the impact of Covid-19 on disabled people as a whole, bringing together the different sectors, to enhance the work towards recovery. The DMCW suggested issuing a position statement from the Disability Equality Forum in response to the evidence collated by the various organisations across Wales on the impact of Covid-19 on disabled people.”
Then at the end we can see:
“This can be used to support discussions and decision making across Government.”
So in effect, then, is that Jane Hutt announcing that work should commence on the production of what then became the Locked Out report?
Professor Debbie Foster: Yes.
Counsel Inquiry: And it’s right that Jane Hutt asked Rhian Davies, who is chief executive of Disability Wales, and Jon Luxton, who is a special adviser on disability, to consider the practicalities of producing the report?
Professor Debbie Foster: Yes.
Counsel Inquiry: And it was followed that that you were approached by Rhian Davies because you were known to Disability Wales through your academic work and as someone who had previously served on advisory groups?
Professor Debbie Foster: Yeah.
Counsel Inquiry: Is it significant that the decision of who to appoint as chair was deferred by the Welsh Government to Rhian Davies?
Professor Debbie Foster: Yes, I think it is. To allow the forum itself to choose a chair to represent them is quite progressive. It also means that they gave up a certain amount of control. Unlike Professor Ogbonna, who is a colleague of mine at Cardiff Business School, I know that he was approached by the First Minister and the First Minister’s office to produce a report, whereas in my case the choice was given to the forum itself of who they wished to represent them.
Counsel Inquiry: Can we return briefly, please, to the forum itself.
If we could have your witness statement on screen, please, INQ000274189.
And it’s at paragraph 82, which we can see there, and this is in respect of your attendance at the Disability Equality Forum, which we’ve just discussed, and you say:
“On reflection, it appears odd that I wasn’t invited to DEF meetings while authoring the Report and acting as the nominal chair of the SG …”
Just pausing there for a moment, SG is –
Professor Debbie Foster: Steering group, yes.
Counsel Inquiry: Which we’ll come back on to in a moment.
“… and its chosen representative.”
You go on to say:
“In the absence of any formal mechanism for me to raise matters with relevant Officials and Ministers connected to the evidence we were gathering this would have at least been a means for me to raise concerns.”
You then talk about:
“The advantage of this was that no boundaries were imposed, when authoring the Report and, as the chosen representative of disabled people, I was able to build trust and genuinely coproduce it.”
You then say:
“The disadvantage was that I had no formal mechanism through which I could communicate concerns about evidence under consideration with decision-makers in Welsh Government.”
Did you query why you hadn’t been invited to attend the forum, to your recollection?
Professor Debbie Foster: No, I didn’t officially query it. I mean, as I say, in retrospect, you know, it looks odd that I wasn’t included on the forum. I was invited to a meeting to present the findings of the Locked Out report when they were first issued, but it – I think in retrospect it would have been good to have had a mechanism through which I could have raised concerns. If it wasn’t the Disability Equality Forum, then another means of raising a concern. At the moment with the Disability Rights Taskforce, which I know you haven’t come on to yet, I do have a mechanism through which I can raise concerns.
Counsel Inquiry: So did you feel then, when you were producing this report, you didn’t have such a mechanism?
Professor Debbie Foster: Yes, I did feel that, although I was aware that Jon Luxton, because he is the special adviser to the minister, would probably take back any concerns on our behalf. So there was an indirect mechanism.
Counsel Inquiry: Just one final comment about this paragraph, you refer to yourself here as the nominal chair. Could you just explain to us what that means, please.
Professor Debbie Foster: Yes. When I first was approached by Rhian Davies of Disability Wales, she asked me to chair this steering group and author the report, but as we did the meetings – the meetings were conducted online, because it was during the pandemic, and as we did the meetings, it became apparent to me that I needed time to sit and make lots of notes as people were speaking, particularly about their lived experience. Because there was a lot going on in the meetings and they were quite intense, and so chairing the meetings was going to be difficult.
On top of that, I felt that it would be a good thing to redistribute power within the meetings to somebody else, rather than just myself, if we were genuinely going to co-produce something.
Rhian was an obvious person to nominate and she was nominated and elected by the rest of the steering group, because she also knew all the people in – on the steering group by name and where they came from, which organisations they represented, and we were really anxious to get a representation of different impairment groups.
So, you know … so because the pandemic affected different impairment groups in different ways, it was really important that there was some representation within there from those groups, and Rhian would know who to draw on, as we were discussing things. So it worked out a really good partnership.
And when I say co-production, co-production can mean different things in different contexts, and in this context it was we were co-producing a report as a group of disabled people, we weren’t necessarily co-producing it with Welsh Government, although there were two Welsh Government officials helping us to do that by providing evidence.
Counsel Inquiry: Just on the topic, then, of co-production, in terms of your own research expertise and what you seek to bring to the research that you undertake, in your witness statement – and we don’t need to bring it up – you explain:
“Disabled people are regarded as active agents in my” –
Professor Debbie Foster: Yes.
Counsel Inquiry: – “research, in contrast to traditional ‘expert’ approaches where they have often been treated as passive recipients of others’ perceptions and decisions, or as lacking capacity.”
I think that’s something you have just touched on, so can you please expand on how you sought to do that in terms of preparation of the Locked Out report.
Professor Debbie Foster: Yes. I mean, I just saw us all as experts, really, everybody in the room was bringing something to the report in terms of, you know, we were all going through the pandemic and people were experiencing things there and then in terms of their lived experience. So I was an academic who could put people’s words into a format that would be more agreeable, potentially, to politicians, and I would also bring some skills, some research skills, to that job as well, as a mainly qualitative researcher. And I just felt that to co-produce something, you needed to draw not just on quantitative evidence, statistics or even grey literature that was being produced during the pandemic by different organisations and disabled people’s organisations, but you also needed to hear voices of people and maybe their members, if they were representing a group.
And most of the people on the steering group were representing groups like groups with hearing impairments, sight impairments, learning disabilities, for example, and they could then go back to their groups and say “This is what we’re discussing within the steering group, have we got any examples from our membership of things that are happening to people now that need to be brought to the attention of Welsh Government, and we can put those in the report”.
So the creation of the evidence was ongoing, it was almost live, and that was quite unusual, but there were also ethical restrictions during the pandemic on how you could collect data as an academic anyway, and my university was saying we couldn’t go out and interview people formally because there were problems – you know, face-to-face interviews weren’t possible, but even online interviews, it could be disruptive, you could be talking to somebody who had a loved one who was ill at the time and just contacting people at the time was a sensitive issue.
So by bringing a group of people together to do this report who could draw on their own resources, both personal and their groups’ resources, was really useful.
Counsel Inquiry: And you’ve touched there upon the steering group. It’s right that that was set up and chosen – membership was chosen by the Disability Equality Forum –
Professor Debbie Foster: Yes, it was.
Counsel Inquiry: – so there was control over who was in that group –
Professor Debbie Foster: Yes.
Counsel Inquiry: – the Welsh Government didn’t seek to tell you?
Professor Debbie Foster: No.
Counsel Inquiry: And that steering group met for the first time on 6 October 2020. We’ve touched upon the wide membership of that group and co-production. Do you feel you were given the freedom by the Welsh Government to genuinely produce something that had been co-produced?
Professor Debbie Foster: Yes.
Counsel Inquiry: I want to now talk about the report itself, please, but before we bring it up on screen, Jane Hutt made a statement in the – on 1 December 2020.
If we can have that on screen, please, INQ000350691.
This was to mark the International Day of Disabled People. On page 2, please, and at the bottom:
“Since 2002, the Welsh Government has adopted the Social Model of Disability. A model that recognises that people with impairments are in fact disabled by the actions of our society, and not by their impairments.”
So before we look to the report, can you please just explain that model.
Professor Debbie Foster: Yes, there are two sort of dominant models in disability studies and the disability rights movement: there’s the medical model and the social model of disability. And the medical model of disability has tended to dominate in society more generally, but also in things like government discourse, and the medical model defines people by, in a sense, by what’s wrong with them, what’s different about them, but different is often portrayed as a deficit. So it’s quite negative in its approach and it’s also related to a kind of charity model of disability as well. The social model of disability was developed, and it’s sometimes called the individual model of disability, and it says that instead of focusing on somebody’s medical condition or impairment and, by implication, what’s “wrong” with them, we should be focused on the barriers in society, the much wider barriers in society that do not allow people with impairments, ie disabled people, to function as others can and access what everybody else can in society.
So in that respect, you put the onus back onto society and decisions within society as to whether you disable somebody or not. So the idea is that somebody isn’t necessarily disabled by their impairment, they are usually disabled by the inability of society to accommodate that impairment.
Counsel Inquiry: On that note, then, can we please turn to the Locked Out report, INQ000142176, page 18, please, and it’s the last paragraph on that page, and we can see here it says:
“Evidence we present in this report suggests politicians, policy makers and professionals, have hastily reverted to using a discredited medical model of disability.”
So was the finding that the Welsh Government, contrary to what Jane Hutt may have said, that they were not adhering to the social model but had adopted a medical model?
Professor Debbie Foster: Yes. I think that all governments did – in the UK – initially react by adopting a medical model, yes.
Counsel Inquiry: In terms of what that meant for disabled people living in Wales throughout the pandemic, what did it mean for them in terms of how the Welsh Government used this model to make its decisions?
Professor Debbie Foster: Well, I mean, it meant that apart from the Disability Equality Forum that disabled people were not seen as a group that was going to – needed to be consulted.
I mean, one of the things that the Locked Out report continually says is that if we had a society in which disabled people were adequately represented as decision-makers, in all aspects of our lives, including political decision-making, then perhaps some of the problems with the pandemic that disabled people experienced wouldn’t have happened in the first place, because they would have been around the table, they wouldn’t have been seen as a “special” group, they would have been actually integrated into decision-making, and perhaps – we wish – that some of the decisions that had been taken may have been better informed.
This included things like, you know, the wearing of face masks, which disadvantaged people with hearing impairments, the social distancing regulations which were problematic for people with visual impairments, and, you know, the locking up of quite a lot of people with learning disabilities, particularly those who were residential in institutions, and really the removal of their right to independent living and their human rights.
Counsel Inquiry: I want to come on to a number of those topics, but just before we do, since the publication of this report, have you seen a change or did you see a change in the attitude of the Welsh Government?
Professor Debbie Foster: Yes. I think the thing is that the Welsh Government adopted the social model of disability quite some time ago, but our argument has been that that is not reflected in their legislation, so there are a number of relevant pieces of legislation that have been passed that – I’m trying to remember, Social Services and Care Act? I can’t actually remember the name of it. But there are a number of pieces of legislation that have been passed which did not use social model language, they used medical model language, and they defined disabled people in relation to their medical condition.
In relation to what’s happened since that statement and since the report, we’ve had the Disability Rights Taskforce, and with that Welsh Government implemented something we recommended in the Locked Out report, that participants all undergo social model training and that social model training is contracted out to a disabled people’s organisation, in this case it’s been Disability Wales. And everyone that’s participated in the taskforce, including ministers and officials, have been asked to undertake social model training – or it’s been made available to them. I don’t think it’s compulsory, but it has been made available to them.
Counsel Inquiry: Can we then come back to some of the other points that you’ve just touched on, please. One finding of the report was that there was a poor public understanding that some disabled people would be unable to comply with certain NPIs, and you gave some examples, social distancing and face coverings being just two.
Professor Debbie Foster: Yeah.
Counsel Inquiry: And of course this meant that there were occasions where disabled people were challenged by members of the public, and unfortunately in some cases maybe abused by members of the public.
Did you find any evidence that the Welsh Government had actively considered that might be a consequence of these NPIs?
Professor Debbie Foster: That’s quite difficult to answer because I wasn’t having conversations with officials and ministers at the time, so I – it would all be second hand through, you know, what people in the steering group were saying had happened rather than – because I didn’t have that conduit in terms of having a direct line to discuss this with a specific official or minister.
Counsel Inquiry: Perhaps a question you may be able to help us with is: do you think that there would have been ways to mitigate this? For example, better public health communications.
Professor Debbie Foster: Yes, yes, I do, and I think the Welsh Government did discuss this in the Disability Equality Forum and there were attempts made to address these issues.
I am going to, you know, for the record, say that Jane Hutt was excellent throughout the proceedings. That, from what my experience of her, she does understand the social models. And I think Mark Drakeford also understands the social model of disability. I wouldn’t say that all Welsh Government officials do, and I haven’t really had enough conversations with other ministers to know.
But I think that what worries me is that that means that understanding of some of these really basic issues that should have been understood really quite early on, are down to one or two people. They may have been very influential, and they may have been key politicians, but they couldn’t be everywhere all the time. So I think we’re talking about a whole culture that needs to be changed, and that takes a huge amount of time. It’s something that we’re trying to work on with the Disability Rights Taskforce.
But, you know, if we’re looking forward rather than back, we would hope that some of the work we’ve done subsequently with Welsh Government would mean that these issues would be more to the fore of their minds than they were at the start of this pandemic.
Counsel Inquiry: Can we then move on, and if we can please have INQ000142176 back on the screen, this time at page 22, and a topic considered in the report is the human rights of disabled people. There’s one specific example I wanted to ask you about, which is the last paragraph. You’ll be, I’m sure, very familiar. What was the issue that was being raised here, please?
Professor Debbie Foster: The issue was that – I mean, I’m not an expert on Coronavirus Act 2020 (Commencement No. 1) (Wales) Regulations 2020, but people did bring a number of concerns to the group that there was uneven access to services and – dependent on where you lived in Wales, that there was concern about certain protections being withdrawn and that people were being neglected, particularly people receiving social care in their house on an individual basis, that there was a risk of abuse, and that Disability Wales had raised this with Welsh Government, and we were concerned that there had been a very slow response.
Counsel Inquiry: And as you just acknowledged, Jane Hutt engaged well throughout the pandemic, and indeed you say that this particular issue about the suspension of this provision was raised with Jane Hutt, who committed to resolving the problem. I think you’ve just touched upon this, but was that done quickly enough?
Professor Debbie Foster: I don’t feel I’m very well informed on this, but from what people were telling me, no, it wasn’t. But, you know, I think there are people who are better informed than I am to be able to pass a judgement.
Counsel Inquiry: Thank you.
Can we then please turn to page 29, and it’s the second to last paragraph, and a statistic I think we’ve already heard a number of times so far in this Inquiry, but equally alarming every time, is that:
“Data published in September 2020 … shows that in the period March to July … 68%, or almost 7 in every
Professor Debbie Foster: Yeah.
Counsel Inquiry: As far as you are concerned, was there ever a feeling amongst the group and those that you spoke to that the Welsh Government had seen this as inevitable?
Professor Debbie Foster: Oh, that’s a difficult question. (Pause)
No, but – but I want to caveat that in that I think that there was more of a culture of inevitability coming down from the UK Government around the whole discourse of people with – who were vulnerable because they had pre-existing health conditions. There was a feeling amongst the group that disabled people were generally seen throughout Covid as dispensable, that it was almost inevitable that because they had pre-existing health conditions they would be more vulnerable to Covid and therefore they would die.
And I know when this statistic came out it was
really quite shocking, and I remember the meeting that
it was brought to, the statistician from Welsh
Government brought the statistic to the meeting, and
there was a lot of discussion about why might it be so
high, and latterly we learnt that it was particularly
high in Wales. And I think that that has a lot to do
with the historical and socioeconomic profile in Wales,
of poverty and deprivation, and, you know, I … I mean, COVID related deaths in Wales were disabled people.” 10 I just feel that what we wanted to convey in the
Locked Out report was a really clear message that it was
not inevitable that disabled people were necessarily
going to die in larger numbers than other groups of the
population. There were things that could and should be
done, and there were lessons to be learnt for the
future.
Counsel Inquiry: Perhaps on that same topic, page 34 of the report, if we
could have that, please, and it’s the top paragraph:
“Concerns have been raised about the access of
long-term users of NHS services for non-Covid-related
health conditions in Wales …”
So perhaps directly relevant to what we were just
talking about.
Professor Debbie Foster: Mm.
Counsel Inquiry: Whilst suffering from the direct harm of the virus itself, disabled people were also suffering as a result of reduced access to non-Covid services. In your view, is that something that was avoidable?
Professor Debbie Foster: I mean, I’m not a medic and I wasn’t working in the health service at the time, but I think that a decision should have been taken about the maintenance of some non-Covid services, particularly rehabilitation services, that were completely shut down from what we could gather.
This example here is Fight for Sight, and there was Andrea, who came along from … I was going to say “blind dogs”, because she always calls it “blind dogs”.
Lady Hallett: Guide Dogs for the blind?
Professor Debbie Foster: Guide Dogs for the blind. She always calls it “blind dogs”, so that’s kind of stuck in my head. And she’s sight impaired and she continually brought up the issue of people not being allowed to go to rehabilitative appointments and the fact that a number of people that she was aware of had actually lost their sight completely as a consequence of that.
So these were essential appointments and essential medical interventions, but they were not about Covid. Yeah.
Ms Paisley: Finally, then, on the report, please, can we please look at page 27 and the fourth paragraph from the bottom. This is in respect of equality impact assessments, more of which to come, but:
“The use of Equality Impact Assessments … as an available tool during the pandemic have been conspicuously absent. We call on the Welsh Government to ensure that EIAs are properly used and are not just consultation exercises, but opportunities to genuinely co-produce action plans and evaluations with people and people with other protected characteristics.”
So first of all you say they were absent in the report.
Professor Debbie Foster: Mm-hm.
Counsel Inquiry: What’s the importance of those impact assessments being undertaken?
Professor Debbie Foster: Well, I think had they been undertaken, some of the issues that we raised in the report would have been discovered and they would have been apparent.
The whole point of equality impact assessments is to ensure that you consult with the groups with protected characteristics that the Equality Act specifies, and I think that increasingly equality impact assessments over time have just become a bit of a tick box exercise. And there has been evidence of this. Even the Equality and Human Rights Commission I think have reported that equality impact assessments have lost some of their – their importance. And I think that they shouldn’t just be consultation exercises, but originally – because I remember taking part in the very first equality impact assessments in the public sector as a disabled people person within the university, and originally there were some really, you know, in-depth consultation exercises with staff and key personnel with protected characteristics, but they’d become much more diluted in recent years.
Counsel Inquiry: Can we then please move on to the publication of the report, and it’s right that a meeting took place between members of the steering group with the First Minister, Mark Drakeford, on 18 March 2021. Can you recall, is that the first time that the group had met with the First Minister in respect of the reports?
Professor Debbie Foster: Yes, it was.
Counsel Inquiry: Was that quickly enough?
Professor Debbie Foster: No, well, we waited some time before the meeting and we had a period of time in which we – to be quite honest, we thought perhaps we’d been forgotten completely. Either that or the report was too honest and too hard hitting that Welsh Government didn’t know what to do with it. Now, both of those are speculations, because we have no idea what was going on behind the scenes. But it didn’t feel quick enough, no.
Counsel Inquiry: But in terms of the publication, there was a delay?
Professor Debbie Foster: Yes, there was a delay.
Counsel Inquiry: Do you feel you’ve ever been offered a reason for that?
Professor Debbie Foster: Not a proper explanation, no.
Counsel Inquiry: The Welsh Government on the same day that they published the report, which was 2 July 2021, they also published their response to the report, which I won’t ask you to look at now, but it’s right that one of the things the First Minister committed to was establishing a taskforce. If we can turn then, please, to the Disability Rights Taskforce. To what extent did the steering group who had been involved throughout production of the report influence the approach that would be taken by the taskforce?
Professor Debbie Foster: Yes. Well, originally we thought we were being asked to put forward some terms of reference for the taskforce, and we did have discussions as a steering group about that, and we did make some suggestions. But after a number of meetings we felt that the vision that we had was a little bit more developed and possibly more ambitious than the vision that Welsh Government had, and there was a little bit of conflict backwards and forwards as to what they saw this Disability Rights Taskforce wanting to achieve.
I felt that the steering group had a very clear vision of what it wanted to achieve, which was that it wanted to take the recommendations from the Locked Out report and the chapters within the Locked Out report and really interrogate those in much greater depth. And any other issues that we weren’t able to cover. Because the original report was written in quite a short period of time, I think it was about three or four months, and so we were also aware that we hadn’t covered some issues, for example education, children and young people, justice, in any great depth.
Counsel Inquiry: So were there any tensions between the Welsh Government and the steering group that you can recall?
Professor Debbie Foster: Yes, there were, and there were a lot of conversations amongst the steering group. We had a number of online meetings saying “Where do we go from here? What do we do? What if they don’t publish it? We’ve done all this work and will anyone ever see it?” This kind of thing. And I think there was a feeling within the steering group also that if Welsh Government didn’t publish it then we would publish it independently.
Counsel Inquiry: So the taskforce was formally constituted in November 2020 –
Lady Hallett: Ms Paisley, I’m sorry to interrupt. Are you going on to slightly different topic?
Ms Paisley: My Lady, I have one final question on this topic and then it might be a convenient moment.
Lady Hallett: Are you okay to come back to this afternoon?
The Witness: Yes.
Lady Hallett: I’m sorry, it’s just that something has arisen that we need to sort out over lunch, so if Ms Paisley can just deal with this last matter and then …
Ms Paisley: Okay.
Just in respect, then, of the taskforce being constituted in November 2021, it’s right you were the co-chair –
Professor Debbie Foster: Yes, I am.
Counsel Inquiry: – of the taskforce, and just generally speaking do you believe engagement with Welsh Government officials on the taskforce has been open and constructive?
Professor Debbie Foster: It’s been really good, yes, it’s been excellent.
Ms Paisley: My Lady, I would then be moving on to a new topic.
Lady Hallett: I shouldn’t have interrupted when I did, should I?
Thank you very much, if you could be back for 1.45, please.
The Witness: Ah, okay.
Lady Hallett: Thank you.
(12.45 pm)
(The short adjournment)
(1.45 pm)
Lady Hallett: Ms Paisley.
Ms Paisley: Thank you for returning, Professor.
Just before I move on to my final two topics, just two questions that have arisen, please.
Firstly, you say prior to completion of the report you had an indirect mechanism for raising concerns when we were talking about whether you were an attendee of the equality forum, and you say that you could raise matters through a special adviser. Did you ever have the need to raise any concerns, and if so were they acted upon?
Professor Debbie Foster: When I say I had an indirect, he didn’t put himself in the position of – he didn’t explicitly say “You can raise concerns with me”. I think, yeah – I mean, if concerns came up from the group, yes, we raised them with him and asked him to convey them back to Jane Hutt, but I didn’t – I don’t recall ever having specifically asked him to raise something on my behalf.
Counsel Inquiry: Then the second question: you’ve told us it’s important to hear not just data and figures but also hear the lived experiences of people. Do you feel that that evidence was obtained and passed to the Welsh Government, and as far as you are concerned, did they take it on board and act upon it?
Professor Debbie Foster: Yes, I do feel that that was the case, and it’s been quite an experiment, I think, for Welsh Government, but it’s been one that I’d like to see repeated elsewhere because I think it’s been very, very productive.
Counsel Inquiry: The final topics then I want to ask you about are the actions taken since the report.
If we can, please, go to the Welsh Government’s response, which is INQ000282168, and on page 5, please.
There’s a list of bullet points there, and I wonder if you can help us. Have those actions been taken or committed to, as far as you can help us with that?
Professor Debbie Foster: Well, some of them have been already taken, and some of them are commitments.
So establishing a taskforce, yes, we’ve got that.
Introducing the socioeconomic duty, that came into force in March 2021. And that also says:
“… tackling inequality at the heart of decision-making. The guidance stresses the need for public bodies to consider lived experience when making strategic decisions.”
I think one of the issues that I want to stress here is that a lot of people came to the steering group and expressed their opinions through the steering group that Welsh Government did respond to a number of concerns that they raised, but the problems were much lower down, at the service provision level. So local authorities, health boards, really the delivery of services was more of a problem than Welsh Government itself. So there’s something that we keep referring to during the taskforce and the Locked Out report which was the implementation gap. And Jane Hutt has taken that on board and often does refer to the implementation gap, and the need for us to think about how some of the changes that are taking place within Welsh Government at that level are being cascaded much further down to public service providers. That’s – that’s the area we’re really worried about, that the message possibly doesn’t get down to those people providing services on a day-to-day basis, face-to-face, with disabled people and their organisations.
So, you know, I know that we’re having an Inquiry about the actions of the Welsh Government, but that communication between Welsh Government and other agencies it funds and it also has some regulatory powers over, I think are just as important here to consider.
Counsel Inquiry: And as far as you are concerned that is something you think is being addressed?
Professor Debbie Foster: I don’t have evidence for that, to be quite honest. I have evidence much more at a strategic level that disabled people are being involved in the taskforce, in decision-making, in policymaking and policy ideas. I don’t see evidence that all this is cascading down. I mean, okay, we’ve taken part in some social model training with inspectorates, the care inspectorate, for example, in Wales, and I’ve taken part in that, which is a really good initiative, but I do worry about this implementation gap and the implementation gap is where most disabled people on a day-to-day basis experience public services. You know, whether – whether it’s easy to access them, easy to get information, easy to get people to advocate on their behalf when they use public services, because a lot of disabled people won’t use them directly but they may need somebody to intervene on their behalf in using them. All that sort of nitty gritty day – you know, day in, day out grinding people down is what we often hear back as feedback, that there’s a lot of good policies, there’s a lot of good speak on the websites and, you know, people saying the right things, but is it the experience on a day-to-day level that people are getting what they need to live a life that is fulfilling and without the barriers that they shouldn’t really be encountering.
Counsel Inquiry: I think if we can take that extract down, and I don’t propose to take you to it, but some higher level points that are recommended that the Welsh Government can take. The first is, to further protect and enhance the rights of disabled people, the government has committed to incorporation of the United Nations convention on the rights of disabled people into Welsh law during the current Senedd term.
Can you help us with whether that’s happened?
Professor Debbie Foster: Well, no, it hasn’t happened, because I think it would be a very lengthy process, but they have set up a committee to look into the feasibility of it happening, and the problems that might be related to incorporating that into Welsh law.
I think the concern around that is the time that that’s taking, and it is a very complex situation, it’s a complex thing to do if they do incorporate it into Welsh law, but I think that the fear has been that a lot of the things that we thought maybe would be resolved within this Senedd term may not be, and we are also losing a First Minister that was very dedicated to the setting up of the taskforce and some of the provisions that went within it.
I mean, Welsh Labour committed to that incorporation of the –
Lady Hallett: I think we need to be careful here: (a) I think we may be straying beyond the pandemic, and (b) we need to be careful because I know what’s going on in Welsh politics at the moment and I think we need to be very careful.
Professor Debbie Foster: Okay.
Lady Hallett: But, I’m sorry, I appreciate it’s a really important topic, and you’re an excellent advocate for it if I may say so, but we need to stick with the pandemic, I’m afraid.
Professor Debbie Foster: Okay, my Lady.
Ms Paisley: Another recommendation, and if we can focus on how this would have assisted over the pandemic perhaps, is the appointment of a minister for disabled people.
Professor Debbie Foster: Yeah.
Counsel Inquiry: How would that have helped over the pandemic?
Professor Debbie Foster: I think, as I said previously, having people round the table who are representing – either representing disabled people but, more preferably, disabled people themselves as key decision-makers. I mean, if a post were created as a Minister for Disabled People, it wouldn’t necessarily be a disabled person, but one would hope that they would be in touch with all the organisations much more regularly than the Disability Equality Forum of Welsh Government because, you know, they’re quite infrequent meetings really. I think the argument would be that having somebody dedicated to that role, a bit like the Older People’s Commissioner – I mean, if it was a minister or a commissioner, you know, it could be one or the other. The Older People’s Commissioner, Children’s Commissioner we have in Wales, and they have the opportunity to be much more proactive rather than reactive to what’s required of that particular population. And I think what was lacking in the pandemic was the proactivity. There was a lot of reactivity, but not as much proactive decision-making.
Counsel Inquiry: Moving then on, finally, you discuss in your statement some of the lessons that could be learned for a future pandemic, and I think we’ve probably just touched upon a few there. So, firstly, that consultation with disabled people was too infrequent and reactive. Is there an easy way that that could have been solved?
Professor Debbie Foster: Well, if there was a minister or commissioner, that might have been one reason for doing that. I think – I think the Disability Equality Forum has strengths. It didn’t meet regularly enough. Its strength is that it’s made up of disabled people and their organisations, so you’ve got, you know, a good deal of representation there. But you’ve got a very enthusiastic minister with that portfolio in Jane Hutt. You don’t know – I mean, what worries me about the whole edifice of the Disability Rights Taskforce is, you know, if there isn’t a Jane Hutt and there isn’t a Mark Drakeford, does that then continue and does it have the same impact as was intended when it was first set up? I’m afraid I’ve strayed into politics a little bit.
Lady Hallett: I think we have to stop this –
Professor Debbie Foster: Yes, okay, thank you.
Lady Hallett: – I really have to be extremely careful. I’m sorry.
Ms Paisley: Thank you.
One final point, then, you talked about medical evidence was significant, of course over the pandemic, but you say that social scientists also have a role to play, and should be consulted. Can you explain briefly how that would have assisted, had there been more consultation with social scientists, please.
Professor Debbie Foster: Yes, I think that, I mean, it’s almost inevitable that if there’s a virus it’s seen as a medical problem, and obviously we didn’t know anything about the virus and we needed that kind of evidence. But there are other types of evidence I think we could have drawn on, including, you know, social scientists and behaviourists, particularly in recommending a whole – whole array of different restrictions, social restrictions on people which, you know, were brought in to stop a virus but nobody really thought out what the consequences might be in terms of people’s behaviour, in the limitations on their ability to live independently. You know, in the – in relation to disabled people, for example, you know, the social distancing and not being able to use public transport without being accompanied by somebody was going to be a problem for quite a large proportion of that population, not all but some disabled people, and I think that we would have had more of a multidimensional approach of thinking through these issues rather than reducing everything to a medical model. We would have had much more of a holistic social model of – well, going back to the social model of disability, and full circle really.
Ms Paisley: Thank you very much, Professor. I don’t have any further questions for you, and thank you for giving evidence today.
Lady Hallett: Thank you very much for your help, Professor, I’m very grateful to you, and I’m sorry we kept you over lunch.
The Witness: Okay. Thank you.
(The witness withdrew)
Lady Hallett: Ms Hitchman.
Ms Hitchman: My Lady, may I call Helena Herklots CBE.
Ms Helena Herklots
MS HELENA HERKLOTS (sworn).
Questions From Counsel to the Inquiry
Lady Hallett: Thank you.
If we could be careful about moving around when people are taking the oath, I’d be really grateful. Thank you. It’s finished now. Just for the future. Sorry to be pernickety, it’s too many years in the courts.
Ms Hitchman: Could you commence, please, by giving your full name.
Ms Helena Herklots: Helena Rebecca Herklots.
Counsel Inquiry: Thank you for attending today, Commissioner, and for assisting the Inquiry. As you give your evidence, please remember to keep your voice up and speak slowly so that the stenographer can hear you for the transcript.
Your witness statement for this module is at INQ000276281. Are the contents of this statement true and accurate to the best of your knowledge and belief?
Ms Helena Herklots: Yes, they are.
Counsel Inquiry: You are the Older People’s Commissioner for Wales and you have held this position since 2018. You were therefore the Older People’s Commissioner during the period with which we are concerned, namely January 2020 to May 2022; is that correct?
Ms Helena Herklots: That’s correct.
Counsel Inquiry: There are five topics I would like to explore with you this afternoon, the first is your role as the Older People’s Commissioner, the second is your engagement with the Welsh Government, third is care homes, fourth is your report entitled “Leave no-one behind”, and, fifth, your joint working with the Equality and Human Rights Commission, and by way of conclusion we’ll look briefly at the lessons learned that you’ve set out in your report – in your witness statement.
So I want to ask you some questions about the role of the Older People’s Commissioner. The Commissioner is an independent statutory role with the remit to protect and promote the rights of older people in Wales; is that right?
Ms Helena Herklots: That’s correct.
Counsel Inquiry: And the role was established by Commissioner for Older People (Wales) Act 2006, and importantly that defines “older person” as a person aged 60 or over. Is that right?
Ms Helena Herklots: That’s correct.
Counsel Inquiry: Please can you provide a general overview of the role and functions of the Older People’s Commissioner?
Ms Helena Herklots: So the key role is to protect and promote the rights of everyone over the age of 60 in Wales, a very diverse group of older people, and I’ve got a number of functions that I’m required to carry out. So that’s about representing the interests of older people and safeguarding those interests, scrutinising the actions of public bodies, so bodies such as Welsh Government, health boards and local authorities. I’m able to provide direct assistance and advice to individual older people and to keep under review the effectiveness and adequacy of the law as it relates to older people as well.
Counsel Inquiry: Thank you, Commissioner.
The commissioner also has legal powers which are limited to the areas over which the Welsh Government has competency. Please could you provide an overview of those legal powers.
Ms Helena Herklots: So I’m able to scrutinise public bodies, so to look at the way in which they discharge their functions or fail to discharge their functions as that affects older people. I have the legal power to set out and produce guidance for public bodies that they have to give regard to, so report to me on. I’m able to help individual older people, providing advice and assistance and supporting them in cases or complaints, for example. And I can carry out research and publish research drawing on the experiences of older people.
Counsel Inquiry: Aside from those legal powers, you explain in your witness statement that the commissioner is able to consider and make representations to the Welsh ministers, the First Minister and the Counsel General on any matter relating to the interests of older people in Wales, and this can include non-devolved as well as devolved matters.
So the scope of your legal powers doesn’t prevent you from making general representations to the Welsh Government about the interests of older people, notwithstanding that they are not within the competencies or devolved responsibilities of the Welsh Government; is that right?
Ms Helena Herklots: That’s correct. And it’s important, because it means that I can make representations, for example, on issues of poverty and income for older people, which is a reserved matter to the UK Government.
Counsel Inquiry: Thank you.
Turning now to look at your engagement with the Welsh Government during the pandemic, I want to start first by looking at the meetings that you had with the Welsh Government. Is it right that, prior to the pandemic, you already had regularly established meetings with the Welsh Government, including quarterly meetings with Julie Morgan, Deputy Minister for Health And Social Services, and an annual meeting with the First Minister, Mark Drakeford?
Ms Helena Herklots: That’s correct.
Counsel Inquiry: You also had meetings with other ministers as and when the need arose?
Ms Helena Herklots: Yes.
Counsel Inquiry: In terms of officials, your key link was Albert Heaney, the deputy director for health and social services, and you also met with the director for health and social services, Dr Andrew Goodall, every six months; is that right?
Ms Helena Herklots: That’s correct.
Counsel Inquiry: Turning to the beginning of the pandemic, you say in your witness statement that the Welsh Government was proactive at keeping you informed about the pandemic and the Welsh Government’s response to it, and it gave you opportunities to raise issues with it at that time.
We’ve looked at the regular pattern of engagement you had with the Welsh Government prior to the pandemic. Did the frequency of that engagement increase or change in any way over the course of the pandemic?
Ms Helena Herklots: It did, yes. So from March the Welsh Government, so the Deputy Minister for Health and Social Services, Julie Morgan, wanted to reach out early on. She was expressing concern about the impact of the lockdown restrictions on older people, and particularly issues around isolation and loneliness, so she sought to engage in discussion very early with that.
I then had weekly meetings generally with the Deputy Minister for some months through 2020 and also had weekly meetings with the deputy director general for health and social services, Albert Heaney. The first few of those meetings were both myself and the Children’s Commissioner.
Counsel Inquiry: In view of all of that, to what extent do you consider that you had sufficient opportunity to meet and engage with the Welsh Government in order to raise your concerns about the impact of the pandemic on older people?
Ms Helena Herklots: So I felt at that stage that I had the opportunities that I needed through those two key people, through Julie Morgan and through Albert Heaney, and that meant that I was able to raise the issues that older people were raising with me and the concerns that I was seeing around, particularly early on, the issue about the rights of older people in terms of what was happening generally in society for older people at that time.
Counsel Inquiry: Thank you.
I want to turn to look at some of the other structures that were in place during the pandemic. You explain in your statement that one of the more positive aspects of the Welsh Government’s approach during the pandemic was how it set up structures and working groups to bring people together to share information on what was happening, pool ideas and expertise, and work together to find ways forward.
Please could you give a brief overview of those structures and working groups.
Ms Helena Herklots: So there were quite a lot of working groups, and so it was either myself or members of my team that would attend those, sometimes in an observer capacity, given my independent role. They varied from groups which were primarily about sharing information and Welsh Government listening to issues that organisations were raising, to groups that were more about taking action and discussing how to take that action. So it varied, for example, from the vaccination programme board – which was extremely effective, in my view, I was able to meet with the person leading that, a member of my team attended it, and we felt that issues that we raised were listened to and acted on – and then wider meetings such as the Shadow Social Partnership Council, which is a very large meeting, essentially that was much more about being kept in touch with things.
So there was a range of different groups. Some of them lasted throughout the pandemic and some of them were shorter term.
Counsel Inquiry: And in general terms, how beneficial did you find those groups to be?
Ms Helena Herklots: It varied, I would say. It was always helpful to try to use those groups to stay on top of what was happening, things were changing so quickly and the impact on older people was so significant so early that it felt important to try to get into those groups and raise what was happening, as well as to get information that me and my team could then share with older people about what was happening.
I think, sometimes, some of the groups it wasn’t so clear maybe what the terms of reference were and exactly to what extent they were decision-making or not, but most of them had some relevance and some use, I would say.
Counsel Inquiry: You called for the Welsh Government to create a new post of Chief Social Care Officer, which the Welsh Government did in fact introduce in June 2021. To what extent has that role, the existence of that role, benefitted your ability to advocate for the interests of older people?
Ms Helena Herklots: I called for the role because this was part of my assessment that social care was not seen as on parity with the health service and needed to be, and that was about the status of the profession, the support for people working in domiciliary care and care homes and the need to much improve that recognition.
I felt having a post equivalent, if you like, to the Chief Medical Officer role or Chief Nursing Officer role would provide some of that. So Albert Heaney, who I was working with, when he was in his deputy director general role, was appointed to that role. I wouldn’t say that had had a significant difference in terms of the discussions that we had or the actions that then flowed from those discussions.
Counsel Inquiry: Thank you.
On a similar note, you’ve also made calls for a clear designation of older people in a minister’s title. In your view, why would this be beneficial?
Ms Helena Herklots: My experience was that the Deputy Minister for Social Services was very attuned to the issues that I was raising, and took them seriously. What wasn’t always clear was the extent to which that then fed through into other ministerial remits and into the Cabinet and into decision-making. And I feel – I felt then and I feel now – that it’s important to have someone around the Cabinet table who has a responsibility to be raising issues that will impact on older people and to make sure that decision-making has that voice in the room.
Counsel Inquiry: Thank you, Commissioner.
I want to turn now to discuss care homes and those living and working in the care sector.
I want to begin by looking at a letter that you sent to Julie Morgan, Deputy Minister for Health and Social Services, on 14 April 2020.
And this is INQ000184935.
You explain in this letter that this is further to a meeting that you had with Ms Morgan on 9 April 2020, and you explain that at that meeting you:
“… raised concerns about the situation for residents and staff in care homes, and the anxieties … felt by their loved ones.”
You go on to note that the Minister for Health and Social Services had announced that day that there had been confirmed or suspected cases in nearly a third of Wales’ care homes.
You then ask the Welsh Government to take urgent action in a number of areas and I want to explore a few of those requests with you.
First, and it’s the first bullet point there, you ask for the Welsh Government to take action to ensure that PPE is delivered effectively and consistently to care homes and that care homes have adequate supplies of infection control measures.
You wrote this letter on 14 April 2020, so at an early stage of the pandemic. At that point, what was your understanding of the accessibility of PPE in care homes?
Ms Helena Herklots: So at that point I was having some dialogue with care home owners, I was hearing from care home staff and also family and friends of people living in care homes. What I was hearing in relation to PPE is that the supply was inconsistent. So some homes had the PPE that they needed, but others were really struggling to get it, trying to purchase it directly themselves, or struggling to secure it from the distribution mechanisms that were then in place.
So it was causing quite a lot of homes a lot of anxiety and stress about not having the PPE that they needed. And I think also they were concerned about, if they did have it, whether that supply would continue consistently for the time that they needed it.
Counsel Inquiry: You move on, in the second bullet point, to ask the Welsh Government to ensure that testing is available for residents showing symptoms of Covid-19. Again, similarly, at this stage of the pandemic what issues were you seeing in respect of testing?
Ms Helena Herklots: Well, this was such a major issue, that older people were being discharged into care homes without – from hospital without testing, and people within care homes were not being tested, and the feedback I was hearing and also seeing in relation, sadly, to the number of older people that were losing their lives in care homes, was that testing was an essential part of protecting people. And at that time there wasn’t the testing that was being made available, and I felt it was urgent for improvements to be made in that in particular.
Counsel Inquiry: Thank you.
Then the third bullet point relates to access to NHS services and treatment and asks the Welsh Government to ensure that there are no blanket policies excluding care homes from receiving hospital treatment.
Again, if you could just talk about what evidence you were seeing at that point as to the implementation of those blanket policies.
Ms Helena Herklots: So what I was hearing and what we knew is that health professionals had stopped visiting care homes, so GPs, for example, had largely stopped visiting care homes, so that was leaving care homes without that medical support that they needed, it meant that residents weren’t seeing health professionals. But there were also some concerns that I was hearing about access to hospital treatment, so, for example, if someone fell ill in a care home whether they would be getting access to hospital treatment, and I was concerned whether there was any blanket policy in place. So I was really looking for assurance that that wasn’t the case and that older people in care homes would not somehow be seen as less in need of healthcare or medical treatment because they were living in a care home.
Counsel Inquiry: Thank you.
If we turn over the page to the final bullet point, you ask here that the Welsh Government ensures that information is captured and published about the levels of infections and deaths.
Were you aware of problems at this stage with the collection and sharing of data?
Ms Helena Herklots: I think what – what struck me really early on is that people who were dying in care homes from Covid-19, those deaths weren’t even being counted, and I thought that was extraordinary and – I found it then, still find it very distressing, actually, that that was the case. But more widely, there wasn’t the data really about levels of infection and levels of people dying, and therefore it’s much more difficult to, you know, assess what needs to be done, assess where the resource needs to go. And this issue of inadequate data covered a number of different areas throughout the pandemic, I would say, but was very stark at that time.
Counsel Inquiry: Just on –
Lady Hallett: I’m sorry to interrupt. When are you talking about – as far as the people dying in care homes and their deaths not being counted, is that at the beginning?
Ms Helena Herklots: Right at the beginning, yes, in sort of March/April time, yes.
Lady Hallett: So the figures would be skewed, because no one was –
Ms Helena Herklots: Yes, it was – when the deaths from Covid-19 were starting to be published, initially people dying in care homes weren’t included in that data.
Lady Hallett: Do you know why they weren’t being counted? Was it because Covid didn’t feature on the death certificate or …?
Ms Helena Herklots: I don’t know, actually, I don’t know why.
Lady Hallett: Thank you.
Sorry to interrupt.
Ms Hitchman: Not at all.
Aside from the sort of data collection point, what impact do you think that lack of inclusion of the deaths of older people in care homes had on the people that you represent?
Ms Helena Herklots: Well, I think there was so much that was happening for older people at the time, and quite a lot of that was causing a lot of distress, and what I was hearing from older people was that they were – some, not all, but some were feeling that their lives weren’t valued, that they weren’t important, and that – those feelings were compounded by things like the issuing of the letter from a GP surgery in Bridgend about DNACPR, which caused huge distress. So there was a number of different things happened which, cumulatively, older people who were talking to me or talking to other older people which was being reported to me, there was certainly feeling that – that sense of, yeah, just not being valued.
Counsel Inquiry: Thank you. And just for the transcript, DNACPR is Do Not Administer –
Ms Helena Herklots: Do Not Attempt.
Counsel Inquiry: Do Not Attempt CPR, yes, thank you.
Your letter raises a number of issues across very disparate areas. In your view, to what extent could these issues have been foreseen by the Welsh Government prior to them arising in people’s lived experiences?
Ms Helena Herklots: I think a number of them could be foreseen. So if I take the issue of access to healthcare, then older people in care homes should have that access to healthcare, and issues about how that can continue should have been considered.
I would have thought issues about infection control and prevention were important to be considered as well.
There were also issues around people’s access to loved ones, to visiting and how that could happen.
So of course there was a lot hitting the government at this time and a lot for it to consider, but given what we knew about Covid-19 and the vulnerability, therefore, of older people living in care homes, I felt that that should be such a high priority for action and for consideration of how to protect and support people living and working in care homes at the time.
Counsel Inquiry: You called in your letter for the Welsh Government to announce a specific plan of action to minimise the spread of Covid-19 in care homes, based on the measures that you set out above. Please can you explain why you advocated for this action plan.
Ms Helena Herklots: I did it for a number of reasons. I was struggling to see how the work to help older people living in care homes and those working in them, how that was being led and co-ordinated. So if I was struggling to see it, it was going to be even more difficult for people in care homes and families and friends to actually see what was happening. So part of it was to make clear to the public and particularly people living in care homes and those who had loved ones in care homes that Welsh Government recognised what was happening and was bringing all the different elements together to take action.
I also felt that there needed to be an urgency and focus, that I couldn’t see at the time, and that’s why I asked the Deputy Minister to sort of personally lead and set out an action plan so that it could drive faster progress, faster action to protect older people. I was worried that without that, the various different groups that there were, I couldn’t see how that was going to drive the action that was needed as quickly as possible.
Counsel Inquiry: Thank you.
Just staying on that topic of an action plan, Ms Morgan responded to your letter on 21 April 2020.
If we could bring that up, please, it’s INQ000184940.
In response to your request for an action plan, the letter said that Ms Morgan was:
“… not convinced that an additional plan of action over and above those arrangements …”
And she sets out some other arrangements above:
“… will add value here but we will certainly report on progress via the Social care Sub-group.”
What was your view as to the adequacy of that response?
Ms Helena Herklots: I thought it was inadequate, and I was angered actually by the notion that working on an action plan, producing an action plan, bringing the work together, would add no value, at a time when people were dying in care homes where families were distraught. I just thought the response was inadequate.
Counsel Inquiry: I want to turn now to look at the extent to which the concerns that you set out in your earlier letter were addressed and actioned in the months that followed.
If we could, please, have up on screen INQ000181725.
This is a report by you titled “Care Home Voices: A snapshot of life in care homes in Wales during Covid-19”, and I would just like to take you through a few parts of this report.
The report was based on over 120 responses received between 14 May and 5 June 2020; is that right?
Ms Helena Herklots: Yes.
Counsel Inquiry: So if we turn to page 7, first of all, this section is titled “Keeping care homes safe”, and towards the bottom of the page you state as:
“In early April, the Welsh Government announced it had procured 5 million ‘pieces’ of PPE that would be distributed to local authorities throughout Wales, which I welcomed, and some care home managers reported that they had managed to source consistent supplies of PPE, with support from the wider ‘system’, and had remained well stocked.”
If we then turn over the page to page 8, you state here:
“Other responses, however, highlighted the difficulties and frustrations that [care] homes had faced in trying to access PPE, and the length of time it took to obtain this vital equipment.”
Is it fair to say, then, that by June 2020, the date that you wrote this report, access to PPE was patchy with some care homes able to access it more readily than others?
Ms Helena Herklots: Yes, I think that is fair, based on what I was hearing. So I wasn’t hearing from everybody but, based on what I was hearing, my sense was that there had been improvements but it was still patchy.
Counsel Inquiry: Thank you.
Turning now to page 10, which concerns testing, you note at the top that the Welsh Government’s testing policy was heavily scrutinised and, following calls from yourself and others, testing was made available to all care home residents and staff. However, it appears from your report that, from the information you were hearing, access to testing was not quite that easy. You state later on this page that:
“Responses also indicated that despite changes in testing policy, homes still experienced difficulties in accessing testing for residents and staff.”
So, again, would it be fair to say that there was a mixed picture from the information you were hearing about the efficacy of that change in policy?
Ms Helena Herklots: Yes, there was, yes.
Counsel Inquiry: What effect did that have on the older people for whom you advocate?
Ms Helena Herklots: It was an incredibly worrying time for people in care homes and I think actually the quote at the top of the page says it all, about the gentleman who said, you know, “why wasn’t Joyce important enough to have a test”. It felt very personal, of course, to people who were at risk who were seeing, you know, other residents fall ill and die, who were seeing loved ones die, that the testing just wasn’t – wasn’t there consistently or quickly enough.
And it created a lot of anxiety for people in care homes. For the staff as well, so staff reported feeling scared about being at work. And of course for family and friends, who often have gone through a very emotional process when a loved one moves into a care home, and were now distant from them and worried about what was happening.
Counsel Inquiry: Thank you.
Relatedly, to what extent were changes made to the capture of data, going back to the point we discussed earlier about inclusion of the deaths of those in care homes?
Ms Helena Herklots: So the data did improve, and I can’t recall when the data changed, but it did change, and we would then see every week how many older people were dying as a result of Covid in care homes.
Counsel Inquiry: Thank you.
I just want to look at one further section of this report, which relates to a topic that you did not raise in your letter to Ms Morgan, but which does feature heavily in your witness statement, and that’s connection with loved ones.
If we could turn to page 15, you note at the top of this page that many older people had not seen their family and friends at all for prolonged periods and had concerns about the impact that lockdown could be having on their wellbeing.
If we turn over the page to page 16, there is a slightly more positive point that you note, which is that:
“On the whole, however, the responses we received indicate that people were able to stay connected with their loved ones in care homes, with care home staff supporting residents to do video calls or share updates online via email or Facebook.”
In your view, to what extent was the social impact of lockdown on older people, whether in the care sector or elsewhere, sufficiently considered by the Welsh Government in its decision-making?
Ms Helena Herklots: I think in the decision-making that the Deputy Minister for Social Services, Julie Morgan, was making, I think she did consider it, so she was very attuned, I think, to the emotional impact, had raised issues with me early in the pandemic.
What I’m less clear about and certain about is the extent to which Welsh Government more generally considered – considered that. And in relation specifically to visiting, this was partly about Welsh Government but it was also partly about Public Health Wales and their advice on visiting, for example.
So there were a number of different organisations, different bodies, who had a role in these things. But overall I think I felt that some of the impacts on older people, particularly in relation actually to their mental health, were not always well understood or taken account of. I think there was a better recognition of physical health but maybe not so much of the levels of anxiety and depression and stress that older people were experiencing.
Counsel Inquiry: Thank you.
Just finally on this report, I’d like to turn to your conclusions at page 22. I won’t take you through all of this, but just to go through it reasonably quickly, you note in the third paragraph that there was a significant disconnect between what was being promised at policy level and what was being delivered on the ground. Then you go on to state in the fourth paragraph that many of the issues and challenges that had been shared with you could have potentially been avoided through more effective planning and engagement with care homes at an earlier stage and the provision of clear practical information and guidance.
Then just over the page at page 23, you provide various suggestions of immediate actions that could be taken, and one of those I would like to pick up on, which is the Welsh Government action plan for care homes. This is something for which you had been calling, as we’ve been through, from as early as April 2020, as we have just seen.
At this point, several months into the pandemic, why did you think that this remained so important?
Ms Helena Herklots: Because … because people living in care homes, those working in care homes and those who had loved ones in care homes were still going through agonies in terms of what was happening, and I still felt that there was more that needed to be done. There needed to be, you know, clear co-ordination on that.
And two of the things I think would have been helpful is being clear about accountabilities, who was doing what in relation to the decisions, and clearer about timescales as well. Some of the feedback I had from older people that stuck with me was, you know, not being able to see the light at the end of the tunnel: “When could this change? When might we be able to see people? When might we be able to go out from the home again?” And I felt it would also, importantly, indicate to older people and their families the seriousness with which Welsh Government was taking the situation.
And finally, the issue about consistent and clear information, so people working in care homes, particularly managers, were saying they were still getting a lot of different guidance and changes and that was very difficult for them to manage and deal with.
Counsel Inquiry: Thank you.
An action plan was eventually published on 30 July 2020. In the interests of time, we won’t turn to that plan now, but you explain in your statement that you were disappointed that it had taken so long for that plan to be developed and announced. As we’ve already discussed, Ms Morgan initially rejected your proposal, as it was felt that it would add no value. In your view, did that action plan have the value that you expected it to have when it was implemented?
Ms Helena Herklots: I think it would have had greater value had it been done earlier, and it was – I was pleased that they had published it. It wasn’t as comprehensive and clear as maybe I would have liked in relation to those two issues of accountability and timescales, but it was a step forward, and it felt an important step forward at the time.
Counsel Inquiry: We have been through a handful of examples of you providing your views to the Welsh Government. To what extent did the Welsh Government proactively solicit your input as to the risks that would be faced by care home residents?
Ms Helena Herklots: It was a topic of discussion in my regular meetings. It wasn’t always easy to say who initiated that discussion, but I would say that the Deputy Minister would, on an ongoing basis, be keen to hear feedback from me about what older people were experiencing.
We discussed the Care Home Voices report, and she was keen to discuss that, and to hear about what people were experiencing in care homes at that time.
Counsel Inquiry: Thank you.
I want to turn now to look at one of several reports that you produced during the pandemic, the Leave no-one behind report.
If we could have that up, it’s INQ000184908.
This report was based on information and experience – sorry, information, experiences and ideas captured at 16 online engagement sessions that you had held with older people and those who work with and support they were across Wales; is that right?
Ms Helena Herklots: That’s correct.
Counsel Inquiry: If we could turn in page 10, please, we can see a quotation from an older person:
“We are all feeling that if we do get ill, as older people, whether we will get the treatment that we deserve, or if we would be seen as ‘dying soon’, and if that would result in poorer treatment.”
To what extent was that a common theme in your interactions with older people during the pandemic?
Ms Helena Herklots: It did come up quite a lot. I think the issue I touched on earlier about Do Not Attempt CPR, and particularly that letter, which of course got a lot of publicity – we heard from other older people who –
Lady Hallett: Could you tell me about the letter? I’m terribly sorry.
Ms Helena Herklots: Sorry.
Lady Hallett: Sorry, no, no, please just tell me about the letter.
Ms Helena Herklots: So this was the letter that came out from a GP surgery, I think in very early April, that was sent out to a number of its older patients and people living with frailty, saying that it wanted to complete a Do Not Attempt CPR form for them, and it went on to say that if they were, fell ill or needed treatment, essentially that they shouldn’t call 999. And it also went on to say that scarce resources would be directed to those who were young and fit and more able to benefit.
So it very starkly set out how older people were being viewed at that time.
I of course raised that, and there was an apology issued by the surgery, but, you know, that stayed with people, that feeling stayed with people.
Lady Hallett: I’m not surprised.
Ms Helena Herklots: And when that happened, my advice and assistance team then got quite a lot of calls from older people and their families saying, “Actually we’ve seen that our loved one has a Do Not Attempt CPR form, but we knew nothing about it”, and my concern then was that it really broke the trust that some older people had with the NHS, and this quote speaks to that, really, that they felt that maybe they wouldn’t get the treatment that they needed.
And the other thing that was happening at the same time was that the messaging about protect the NHS I think was having a damaging effect on some older people as well, who felt that they shouldn’t approach even when they were ill, so that it deterred them from seeking help when I think they should have done. And all these – all of these things people were experiencing, and I think particularly for people living on their own, it was frightening.
Lady Hallett: Sorry to interrupt.
Ms Hitchman: Just to pick up on that point you raise, Commissioner, about dissuading older people from utilising the NHS, if we could turn to page 12, please, and reference is made here to one of the earlier steps taken by the Welsh Government in response to the first wave, and it says at the top:
“All ‘non-urgent’ surgery and outpatient appointments were suspended in March and many older people, afraid of the risk of contracting Covid-19, have stayed away from GP surgeries and hospitals. This means that many older people throughout Wales will not have been able to access the healthcare services and support they need.”
To what extent do you believe that the impact of harms from non-Covid illnesses and health-related problems were considered in the early days of the pandemic?
Ms Helena Herklots: It’s difficult for me to assess that, really, but the issue of the way in which communications were done and the potential deterrent effect of that I don’t think was considered, and throughout the pandemic one of the issues I raised with Welsh Government and others was the importance of communicating appropriately with older people, who I think were more likely to deter themselves from approaching the NHS and elsewhere for help, and I actually wanted messages that would encourage people to come forward if they needed help and support. So I think there wasn’t probably as much recognition as there needed to be of that impact.
Counsel Inquiry: Thank you.
Just to pick up on the point you’ve raised about communication with older people, if we could turn to page 22, please, there’s a quotation here from an older person which reads:
“So many feel disconnected, mainly because so many don’t use social media. As many times as my Group have been shown even basic use of tablets, phones, they don’t feel confident to use them when alone. This of course makes many feel discriminated against as they don’t get vital information.”
The topic of disconnection and lack of communication is one that recurs throughout your witness statement, and we’ve already touched upon connection with loved ones, but I want to look now at access to information, including public health information.
You explain in your witness statement that around a third of those over the age of 75 were not online. How accessible was the messaging about the pandemic to this group?
Ms Helena Herklots: Well, people who were not online, it was much, much more difficult, not just to get information but to check out whether that was the correct information. We all often, if we are online, will use different search engines to verify information. If you’re not, it’s very difficult to check it out.
There was also a move very quickly by public bodies to do more through online media, information, advice, information about how to contact the health service, all of that, and I don’t think there was at that time a sufficient recognition of the challenges if you were not online.
It made other forms of communication particularly important. So, for example, the daily press conferences that Welsh Government was having, the use of television and radio in terms of media, and one of the reasons why I went on the media quite a few times was to help in getting that information out to older people.
But it was very, very difficult if you were not online to stay in touch with what was happening, to find out more information or to know how to navigate what was a rapidly changing world.
Counsel Inquiry: Thank you.
Finally, I want to look very briefly at your co-operation with the Equality and Human Rights Commission.
Early in the pandemic, you had established an informal UK network of older people’s organisations which was for leaders of older people’s organisations across the UK; is that right?
Ms Helena Herklots: That’s correct.
Counsel Inquiry: The network wrote to the chief executive of the EHRC on 16 April 2020 setting out various concerns about the issues affecting older people. We can’t look at all of your engagement with the EHRC today, but would it be fair to say that you and the EHRC worked closely together during the pandemic to address those points?
Ms Helena Herklots: So I worked closely with the EHRC in Wales, very closely, particularly from sort of late April, May onwards 2020. In relation to EHRC that has the remit across Great Britain, we had some engagement early on. Myself and the other leaders of organisations across the UK, older people’s organisations, really wanted the EHRC to take further action because of the threats that we were seeing to older people’s rights, and they did issue a helpful statement, but at the GB level, if I could put it like that, they weren’t undertaking so much action. Within Wales I was able to work very closely with the head of EHRC Wales.
Counsel Inquiry: Thank you.
You and the head of the EHRC in Wales agreed an unpublished joint summary of the work you had undertaken to scrutinise the Welsh Government between April and December 2020. That summary is in your witness statement at paragraph 11.54.
We won’t go through all of these now, but just to pick up on the first one, you say that:
“There were shortcomings in the Welsh Government’s decision-making processes with regards to equality and human rights considerations during the first months of the pandemic. This includes an absence of Equality Impact Assessments as legally required by the Public Sector Equality Duty.”
Could you briefly speak to what those shortcomings were?
Ms Helena Herklots: Together with the EHRC, we wanted to assess whether Welsh Government was undertaking equality impact assessments and effectively considering the issues of the rights of older people. We asked for evidence to that effect, and the evidence that we received in early November didn’t demonstrate to us that those equality impact assessments were being carried out. The rationale given was that, at that time, they were having to make very fast decisions and therefore it wasn’t always possible in every case to carry out equality impact assessments.
But of great concern to me was that that information went on to say that intuitively they knew the action that was needed, and I was particularly concerned that they were relying on intuition rather than actually assessing what the impact would be on older people of course but on all groups with protected characteristics.
Counsel Inquiry: Thank you.
Turning finally to the future, you’ve set out in your statement a host of lessons learned and recommendations, and we’ve touched on some of these already today in your evidence. I want to just focus on one area that you raise in your statement, which is health and social care, and I wonder if you could conclude by talking briefly about what actions could be taken, whether by the Welsh Government or other public bodies, to protect and promote older people’s rights in the event of a future pandemic.
Ms Helena Herklots: So there had been some work under way, first of all, over the last couple of years in particular, and I think some of the policy direction is correct. So, for example, within health policy care closer to home, a focus on supporting people living with frailty. On – in relation to social care, there has been welcome measures taken to improve the wages of people working in social care, to improve data collection.
Overall, however, I still feel that there isn’t an adequate focus on enabling us all to age well and healthily, on providing support in relation to mental health support and rehabilitation support for older people. And many older people are still living with the consequences of the pandemic, for their physical and mental health, the isolation that they’ve experienced, and also, following the pandemic, the impact of the cost of living crisis and the pressures on health and care. So what I’m hearing from older people is actually some of them are facing their toughest times now.
Ms Hitchman: Thank you, Commissioner.
My Lady, I have no further questions.
Lady Hallett: Right. I think we do have some Rule 10 questions. Who is it? Oh, it’s you, Mr Straw, I’m so sorry. I was looking at Ms Gowman, I wondered if it was her.
Mr Straw.
Questions From Mr Straw KC
Mr Straw: Thank you.
Good afternoon, Commissioner, I represent John’s Campaign and Care Rights UK.
You mentioned earlier that because of the known vulnerability of people in care homes to Covid they should have been a high priority to the Welsh Government.
Is it your view that they were not given a sufficiently high priority?
Ms Helena Herklots: It is my view, yes, and that’s why I wanted to see that action plan, to make sure that they were given the priority that they needed.
Mr Straw KC: Your reports, your position paper on care homes and your witness statement draw attention to the serious harm of restrictions on visits to people needing care, and you’ve said that initial decisions on visiting did not take into account the harm that lack of visits caused. Is that correct?
Ms Helena Herklots: Yes, that’s correct.
Mr Straw KC: You also recommended that the restrictions should be eased and you set out how that could or should be done, for example, making a family member a designated visitor with key worker status so that they can access prior testing, PPE and so on.
Did you raise those concerns and make those recommendations to the Welsh Government?
Ms Helena Herklots: Yes. So, I was able to do that both in my meetings with the Deputy Minister for Social Services, we discussed visiting a lot over a number of months, and then myself initially and then members of my team were part of the group of different organisations that was working to improve access into care homes and to improve visiting arrangements in care homes.
Mr Straw KC: Now, we know that bans on visits were maintained for much of the time until May 2021, and considerable restrictions remained thereafter. Do you consider that core decision-makers made prompt and appropriate changes in response to the concerns that you’d been raising?
Ms Helena Herklots: I think it varied throughout that time, and the issue – there was part of an issue about making prompt decisions but making sure the implementation would work.
So if I could explain what I mean by that, if guidance suddenly changed and issued but people who had to implement that guidance hadn’t fed into it, made sure it would work, then it was unlikely to have had the impact that it wanted. So I think there was a very real tension between moving quickly in order to enable safe visiting and doing it in a way that would mean every care home would be enabling safe visiting.
Mr Straw KC: To take a specific example, you’ve noted that the suspension of outdoor visits in September 2020 –
Ms Helena Herklots: Yes.
Mr Straw KC: – may have been a disproportionate response which would have been very damaging. Did you consider that core decision-makers had properly taken into account the concerns that you had raised earlier than that about restrictions on visits?
Ms Helena Herklots: So, as I said, it was definitely an ongoing discussion that was happening with the Deputy Minister, and I would say she did understand that.
I think part of the challenge on visiting was it wasn’t always clear who the key decision-makers were, particularly between Welsh Government, Public Health Wales and then the local teams that were making those decisions and care homes. And that issue of fragmentation and lack of clarity about where the decisions lay was deeply frustrating but also, I think, did delay progress on enabling safe visiting.
Mr Straw KC: Part of your Care Homes Voices report was read out earlier, where you indicated that there was a significant disconnect between what government discussed and what it delivered. That report also noted you had serious concerns that older people’s rights weren’t being sufficiently protected. Could you explain in more detail what you meant by that.
Ms Helena Herklots: So in relation to older people’s rights fundamentally, right to life and right to private and family life, so the ability to maintain those connections with the people that mattered most, so that was a key concern. Could you repeat the first part of your question, please?
Mr Straw KC: Yes. So there were perhaps two aspects to the care home voices report: one, this disconnect –
Ms Helena Herklots: Yes.
Mr Straw KC: – between what government discussed and what it did on the ground; and then the second, about older people’s rights.
Ms Helena Herklots: I think, to the first point, it was an issue of implementation. So when the policy changed or was announced there was a lot of work that needed to happen in terms of implementing that. That was by, you know, individual care homes. It was important to get the information out to older people and families and friends who wanted to visit. So sometimes there was a gap between a policy announcement to say “This is now how visiting should be” and what families and friends were experiencing. And that may also have been because there were local outbreaks that meant that homes were having to isolate or reduce visiting again. So that’s why it was a very mixed picture.
One of the things I did as a result of that was to invite people to get in touch with me if they were facing those difficulties in their local engagement so that I could look to see whether this was something that was just, you know, one home maybe for a particular reason or whether systemically things weren’t moving as quickly as they should have been.
Mr Straw KC: Final issue, at paragraph 3.26 of your statement you draw attention to “the fact that social workers were not being recognised as key workers in the same way as NHS workers”, and earlier in your questions you raised the lack of parity between social care and the health service. In what ways was there a lack of parity between social care and the health service?
Ms Helena Herklots: Well, I felt that social care was definitely seen as secondary to the health service, in a number of different ways. If you look at the way in which – you know, the wage levels in relation to health and social care, for example, the way in which society talks about social care, it doesn’t feature in the way that people talk about the NHS, the huge focus on hospitals, understandably, but I think it meant that care homes were sometimes viewed as places primarily there to accept people who were being discharged from hospital rather than as people’s homes.
Mr Straw: Thank you very much, those are all my questions.
Lady Hallett: Now it’s Ms Gowman.
Thank you, Mr Straw.
Questions From Ms Gowman
Ms Gowman: I ask questions on behalf of Covid-19 Bereaved Families for Justice Cymru.
You agreed in response to questions from Ms Hitchman that certain issues which arose during the pandemic could have been foreseen by the Welsh Government prior to them arising in lived experience. We know that the threat of a widespread respiratory virus was emerging in January and February 2020. Do you agree that decision-makers responsible for responding should have recognised at that very early stage that older people were particularly vulnerable to what might be coming?
Ms Helena Herklots: So I wasn’t engaged on this issue with Welsh Government in January and February, they weren’t raising it with me, so I think that indicated that at that time maybe they weren’t giving it that focus. They started to engage with me on the issue, I think, in March.
Ms Gowman: I think that perhaps answers my next question, but it’s right, isn’t it, that a respiratory virus, to follow up on what you say, would have impacted disproportionately on the older generation; do you agree with that?
Ms Helena Herklots: I’m not a medic, but from what I know, yes, I agree with that.
Ms Gowman: So some of the factors that should have been featuring in decision-making at that point, in January and February, should have included such things as the elderly’s vulnerability to respiratory infection, comorbidities and dependence on health and social care, and the potential for unfair rationing of services; do you agree?
Ms Helena Herklots: I agree in relation to older people with comorbidity, so this is a major thing that can happen as we get – as we age, that we can get a number of different conditions that can make us vulnerable. And I would also highlight issues around isolation and need for care and support.
And I’d probably add in, actually, the vast numbers of older people who are unpaid carers, so caring for a loved one, perhaps for a partner with dementia, for example, where they were very, very reliant on health and care but also quite vulnerable themselves.
Ms Gowman: And given the Welsh Government knew it was a respiratory virus, should – I would suggest, and I think you’d agree, have anticipated the factors that you’ve just outlined – it – should the engagement of Welsh Government with you have come prior to March 2020?
Ms Helena Herklots: I think – if I look back I think it would have been helpful to have had earlier discussions. I think me and my team, like everyone else, was beginning to see what was happening in Europe, particularly in Italy, and we were at that time considering what might this mean. I – as I said earlier, I very much welcomed the rapid engagement that started from March, but if I look back, on reflection, it probably would have been helpful if that had happened earlier.
Ms Gowman: Am I right in saying that the engagement in March came after the first lockdown was announced?
Ms Helena Herklots: I’m afraid I can’t recall.
Ms Gowman: My second topic and my last topic is support given to the elderly in respect of bereavement. Did your work as the Older People’s Commissioner for Wales include consideration of the position of older people suffering bereavement, for example after the loss of their spouse or partner in the pandemic?
Ms Helena Herklots: It wasn’t a focus of my work at that time. We were trying to deal with a huge amount of different issues that were impacting on older people, and I knew that organisations such as Marie Curie and others were doing very good work on this. We of course dealt with individual issues that came forward, but it wasn’t something that I had capacity to cover.
Ms Gowman: Were you aware of any steps taken by the Welsh Government and its partner agencies to explore what further support could be given to older people in that situation, if you didn’t have capacity yourself?
Ms Helena Herklots: I don’t recall. I know – I think there was work on bereavement, there was certainly work going on at the UK level that I was hearing about, but I just can’t recall. I don’t know what was happening in Wales at that time.
Ms Gowman: Would you have expected to have been aware if there was a large body of work being done on that issue?
Ms Helena Herklots: I think if there had have been a large body of work I might have been aware, but there was a lot – a lot – happening, so I wouldn’t – I wouldn’t assert that.
Ms Gowman: And if you weren’t aware, does that suggest that perhaps any work that was being done was either non-existent or inadequate?
Ms Helena Herklots: I don’t – I don’t know.
Ms Gowman: Thank you. Those are my questions.
Thank you, my Lady.
Lady Hallett: Thank you, Ms Gowman. I liked your question at the end, slipping in the leading question.
Ms Gowman: Yes, my Lady, it was tacked on –
Lady Hallett: No, you’re perfectly entitled to, there’s no criticism.
Ms Gowman: It was tacked on to the end of the permitted questions, but I accept that –
Lady Hallett: No, that’s fine.
Ms Gowman: – it was slightly cheeky. Thank you, my Lady.
Lady Hallett: No, it’s fine.
Thank you very much indeed, I’m extremely grateful for your help. If I may say so, as an outsider, the older people of Wales are lucky to have you as their commissioner.
The Witness: Well, can I just thank my team as well and put that on record. Thank you.
(The witness withdrew)
Lady Hallett: Right, shall we break now? I shall return at 3.15.
(3.01 pm)
(A short break)
(3.15 pm)
Lady Hallett: Yes, Ms Cowen.
Ms Cowen: My Lady, may I please call Professor Sally Holland.
Professor Sally Holland
PROFESSOR SALLY HOLLAND (affirmed).
Questions From Counsel to the Inquiry
Ms Cowen: Professor, could you please state your full name to the Inquiry.
Professor Sally Holland: My name is Professor Sally Holland.
Counsel Inquiry: Thank you.
Thank you for attending today and thank you for assisting the Inquiry. Please remember to keep your voice up and to speak into the microphone in front of you, as that will help the stenographers to hear you for the transcript that is to be prepared of your evidence.
If anything’s not clear when I ask you a question, please ask me to repeat myself.
You have provided one witness statement for this module of the Inquiry. We don’t need to bring it up, but your witness statement is at INQ000361393. That statement was signed and dated on 30 November of 2023. Is that statement correct to the best of your knowledge and belief?
Professor Sally Holland: Yes, it is correct.
Counsel Inquiry: Thank you.
Professor Holland, by way of overview of your career to date, such as is relevant to the scope of this Inquiry, you were the Children’s Commissioner for Wales between April 2015 to April 2022; is that right?
Professor Sally Holland: That’s correct.
Counsel Inquiry: Ms Rocio Cifuentes assumed the post of Children’s Commissioner for Wales in April of 2022, so you were therefore the Children’s Commissioner for Wales during the majority of the period with which this Inquiry is concerned, namely January 2020 to May of 2022; is that right?
Professor Sally Holland: That is correct.
Counsel Inquiry: Thank you.
I’m now going to ask you some questions about your office as the Children’s Commissioner for Wales.
As regards the office of the Children’s Commissioner for Wales, this is a statutory office, the principal aim of which is to safeguard and promote the rights and welfare of children in Wales; is that right?
Professor Sally Holland: Yes, that is correct.
Counsel Inquiry: You set out the Commissioner’s powers in your witness statement. These powers include the power to provide assistance to a child in certain circumstances, and the power to make representations to the Welsh Government about any matters affecting the rights and welfare of children. The Commissioner’s powers relate to the functions devolved to the Welsh Government and devolved to public bodies in Wales. Is that correct?
Professor Sally Holland: Yes, that is correct.
Counsel Inquiry: If I could ask you, please, to reflect on your work throughout the pandemic, can you please provide a brief overview of how you think the pandemic had an impact upon children in Wales?
Professor Sally Holland: Well, I’m very pleased this afternoon to have the opportunity to highlight the specific experiences of children and young people during this pandemic here in Wales. I think we – sorry, would you repeat the question again, the impact on children?
Counsel Inquiry: Please, yes, if you can provide a brief overview of how you think the pandemic had an impact upon children in Wales.
Professor Sally Holland: The impact was immediate, but also we’re now seeing a longer-term impact as well on children, particularly around confidence around school attendance and mental health. But children experienced an extraordinary period, losing many of the activities that all of us would have taken for granted in our own childhood, of course: attending school, socialising with friends, visiting grandparents, et cetera.
And we need to remember that these are not just nice to haves for children, but they’re an important part of their development and their ability to thrive. They need to do these things in order to grow and learn and thrive, so things like playing and being outside are not just a nice to have.
So, children, it did have a profound effect on children. I think that, you know, many people were very aware of that at the time, but sometimes their experiences were not always recognised separately from the general population. And I think, you know, it was seen at the time, and we were able to highlight at the time, the impact.
I think what has become more and more evident is that that has continued for many children, but particularly for children from specific groups. So just as adults are not all the same, neither are children. They don’t have the same views, they don’t have the same life experiences. And the inequalities that children experience outside of a pandemic became more and more evident during a pandemic.
Counsel Inquiry: Yes.
Professor Sally Holland: So inequalities caused by poverty, disability and, associated actually with those things, their ethnicity as well –
Counsel Inquiry: Yes.
Professor Sally Holland: – we really saw that difference, and children who were vulnerable for other social reasons –
Counsel Inquiry: Yes.
Professor Sally Holland: – safeguarding reasons, for example, for whom the home wasn’t necessarily a safe place all of the time. Inevitably it had a greater impact on those groups of children.
Counsel Inquiry: Thank you, Professor, and we may pick up on some of those themes as we go through your evidence.
I would now like to ask you some questions about the means through which your office liaised with the Welsh Government during the pandemic.
I would like to ask you first about your meetings with Welsh ministers. Do you consider that you were able to meet with or consult relevant ministers in the Welsh Government throughout the pandemic?
Professor Sally Holland: The short answer to that is yes. I certainly did have regular engagement, particularly – just as the Older People’s Commissioner has just explained – with the Deputy Minister for Social Services, who is also my designated link minister and with whom I had weekly telephone calls from mid-March onwards, and they lessened slightly in frequency as time went on.
Right from the outset, in writing and verbally, we made it clear to government, including ministers, that they should see our office as a resource. We would retain our independent status and make sure that we fulfilled our legal functions, but we were a resource to help them analyse potential decisions that they might be making and as a conduit of children’s views and experiences. We were able to give them direct access to how children and those who were caring for them and caring about them were experiencing the pandemic. And we were also able to help them communicate decisions to children directly and in an understandable way.
So as I’ve said my main contact was with the Deputy Minister for Social Services. As before, meetings with other ministers continued and it became more frequent at certain times, for example with the education minister, that there were two education ministers in this period. And when there were crucial decisions to be made, for example, around exams and obviously school closures and openings, we had more frequent – more frequent meetings.
I felt there was a real – I think especially as time went on, both officials and ministers saw that we could what we could bring in terms of aiding them to meet the needs and rights of children. There was a real eagerness, I think, to hear about individual children’s experiences, it was hard for them to get access to that directly. That was always really what the Deputy Minister for Social Services wanted to know on our phone calls, you know: what’s going on? How are the most vulnerable children? And we knew that from our own direct communication with children but also our regular contact with institutions and agencies as well.
And –
Counsel Inquiry: Professor, I don’t want to interrupt you, but at this point I am just going to ask you, if you can, to just please slow down –
Professor Sally Holland: Of course.
Counsel Inquiry: – to enable the stenographer to keep pace with what you’re saying.
You’ve described that, I think, to summarise what you’ve said, that you do feel you were able to meet and consult Welsh ministers regularly.
If I can please ask you now about the first contact that your office had with the Welsh Government in relation to the pandemic. In your witness statement you described that your first contact your office had with the Welsh Government in relation to the pandemic was a discussion at your regular quarterly meeting with your branch on 4 March of 2020, and when you refer to your branch, that means the children’s branch of the Welsh Government, which reports to the Deputy Minister for Health and Social Services, at that time Julie Morgan. Is that correct?
Professor Sally Holland: That’s correct, that was the first discussion we held.
Counsel Inquiry: Would it have been beneficial, do you think, to have a meeting to discuss the pandemic prior to 4 March of 2020?
Professor Sally Holland: Yes, I think it would have done. I think that it took the government some time to recognise the resource that we could be. Just to give one example, you know, by that point there was beginning to be a lot of discussion about schools potentially closing for most children and learning moving online for most children. We could have immediately helped them assess how that could be done. You know, teachers would need – teachers lacked basic equipment, they didn’t all have laptops at home, they lacked resources, they lacked training, that confidence, some of them, in online learning. And things like safeguarding rules needed to be sorted out. But most of all the digital gap, the digital divide for children. So that’s just one example of where I think we could have really helped them analyse and think through the impact of any measures they were considering on children as a whole but also on different groups of children.
Counsel Inquiry: Thank you, Professor.
The minutes of that meeting, and I won’t ask for them to be brought up, on 4 March show no discussion of potential restrictions affecting children, or that might affect children. Do you think that that is somewhat surprising?
Professor Sally Holland: It is potentially surprising. I mean, those meetings were – had a number of roles. It was partly to discuss how the office was carrying out its functions and how we were using our budget, because although independent of government it’s funded by government. But we also discussed policy matters in those meetings, and I think, looking back –
Counsel Inquiry: Yes.
Professor Sally Holland: – it feels surprising. We asked for it to go on the agenda.
Counsel Inquiry: Thank you.
You state that meetings with Julie Morgan began following the first lockdown in March of 2020. Do you think a meeting prior to this date with Ms Morgan would have been helpful?
Professor Sally Holland: I think it would have been helpful to discuss the specific issue. The first contact that I had at that – we had many contacts that week, the week that schools closed, for example, and lockdown was announced. We proactively contacted the government on 17 March, for example, to say we had had concerns from families that children were being sent home from an inpatient psychiatric unit because of concerns about the virus, and would they have the right care. And then the next day, the day that the closure of schools was announced, we had many contacts about mitigations with officials. My first call with the minister was on 19 March.
Counsel Inquiry: Thank you, Professor.
I’m now going to move to ask you about another means by which you communicated with the Welsh Government during the pandemic and that’s the weekly matters arising emails which you discuss in your witness statement.
Your office shared weekly “matters arising” emails with the Welsh Government officials during the pandemic. Can you please describe the purpose of these emails.
Professor Sally Holland: Early on, as I say, we offered ourselves as a resource, and one resource that we had was a great deal of information about how families were experiencing the completely new conditions they were living under, because they contacted our office and asked for advice or to say they didn’t understand the guidance. We also were – we were proactively calling institutions like the youth prison and the secure unit to ask how they were and did they have everything they need. And we had lots of direct contact with children and young people directly as well. So we saw that we could be a resource.
We sent in, we collated – we offered to send in and collate matters that had arisen for us that week, through our casework or our other contacts. We saw it as both a source of information for government but also so that we could have accurate guidance back so that we could give accurate advice to families and children as well.
We – early on we said, rather than this being sent to lots of disparate parts of government, please could all of the directors or deputy directors come together. The government was keen to do that, so we effectively created a platform for some cross-portfolio discussions about children’s rights from early on. That was a new set-up which felt very valuable, I think, in terms of everyone updating everyone on what was happening with various children’s issues. And we were able to just point out where there were still many anomalies.
Counsel Inquiry: Yes. But if we can turn to an example now –
Lady Hallett: Before you do, I’m afraid you are going to have to slow down or the stenographer’s going to have my guts for garters, so …
Professor Sally Holland: I’m so sorry, my Lady, I will do my best.
Lady Hallett: I know it’s difficult, one’s speech pattern is very difficult to change, I know that, but if you could just – maybe just think about – have some water or something to try and take a breather.
Ms Cowen: Thank you.
If we can, please, bring up document INQ000191184 – and I can see that’s on the screen, thank you.
This is the document that was sent on 1 April of 2020, and it’s entitled “CCfW matters arising [between 26 March 2020 and 1 April]”.
If we now turn to page 1 of that document, and here we can see, under the heading “Health”, a series of concerns that were raised by your office. Further concerns are raised under headings of “Social care” and “Education”, and there is a final section at the end headed “Other concerns”.
This is an example of the matters arising emails that you sent during the pandemic. Do you consider that these emails were an effective means of communicating with the Welsh Government during the pandemic?
Professor Sally Holland: I feel that it was, I feel it gave them immediate access to issues being raised. We didn’t filter these particularly, we collated them and arranged them in themes for the convenience of the government. Some of the comments that were coming through to us were contradictory. You know, people saying “This isn’t working well” and other people saying there should be – “It is working really well for us”, but we wanted the government to get a real flavour of what was going on. So it felt effective because it went to all of the directors of the range of portfolios that were relevant for children straightaway.
Counsel Inquiry: Thank you, Professor.
I’d now like to ask you about another means of communication, and that was through your participation in the Shadow Social Partnership Council.
The Inquiry understands that throughout the pandemic the council met more frequently and its membership was expanded to bring together partners from the trade unions, devolved employers, the private sector and the Welsh commissioner.
Can you please describe what the purpose was of the Shadow Social Partnership Council.
Professor Sally Holland: The purpose was, I believe, for the First Minister, other ministers and various senior officials, like the Chief Medical Officer, to explain to leaders the rules you have described in Wales, the latest evidence on Covid and what was happening on the ground, and the decisions that they were going to announce over the next – often it was the day before major decisions were made.
It also gave all of those parties that were present an opportunity to raise matters, much as we had done, but in less detail, in those weekly “matters arising” emails. So I felt it was important to be part of that meeting, I attended almost every one of those, and I always took the opportunity to raise a matter relating to children in those meetings.
Counsel Inquiry: Thank you.
Do you consider the council to have been an effective means of communication during the pandemic?
Professor Sally Holland: I think it was effective in terms of making sure that leaders across all sectors were hearing the same information at the same time, and it was – it was very effective to be able to have that direct dialogue with the First Minister. I think it probably helped to reinforce a bit of a sort of one public service ethos that we have in Wales, but I would be keen to point out that I don’t think that led to groupthink. You know, there wasn’t – it didn’t mean that everyone therefore agreed with everything, it was a forum where it was both encouraged and possible to raise concerns about announcements that might be coming. It gave us an opportunity as well to be ready to – in my case, to communicate decisions to children and young people and those who care for them effectively the next day.
Counsel Inquiry: Thank you.
I’d now like to move to ask you about one of the Technical Advisory Group’s subgroups that related to children during the pandemic, and that is the children and education subgroup.
This subgroup was part of the Technical Advisory Group that provided advice to the Welsh Government. It first met on 1 May of 2020, and the purpose of this group was to give detailed consideration to the scientific and technical evidence regarding Covid-19 as it related to children and education settings.
Were you aware of the work of this subgroup?
Professor Sally Holland: I would say that I wasn’t aware of it when it was set up. I don’t recall being made aware of it when it was set up. As the pandemic progressed, on at least one occasion, perhaps more, my office was given access to some of their reports prior to it – shortly prior to publication. Sometimes, you know, we would ask “Why have you made this decision?” when we were scrutinising decisions, “What is the evidence for this?”, and we would be told it had come out of this group.
Counsel Inquiry: Thank you.
Dr Heather Payne, the senior medical officer for women’s and children’s health within the Welsh Government, chaired the children and education subgroup. In her witness statement, she refers to the subgroup as being subject to the first order decision of reducing deaths, which she says in her evidence limited the effectiveness of the subgroup as it was not able to prioritise the well-being of children.
Do you agree with her description regarding the priorities of the subgroup?
Professor Sally Holland: It’s difficult for me to comment on the priorities of that group because I had so little involvement in it. I do think that we saw some of what she was saying come out in some of the decisions to follow.
Counsel Inquiry: Thank you.
I would now like to ask you some questions about the sources of Information that your office drew upon when providing advice to the Welsh Government, and in particular I want to ask about the surveys carried out by your office during the pandemic.
Your office undertook two large-scale surveys of children and young people in Wales. One survey was carried out in May of 2020, and a follow-up survey was carried out in January of 2021.
The May 2020 survey ran for two weeks from 13 May and has responses from over 23,700 children and young people aged between 3 and 18 years old.
If we can please bring up document INQ000191146, at page 5 of this document we here have a summary of key findings from the May 2020 survey.
If we can look at a few examples of these findings, under the heading “Are children worried?” It is stated that:
“37% of children and young people stated that they were not worried about Coronavirus on the day they completed the survey.”
If we can turn to page 6 of the document, under the heading “How confident do children feel about learning?” 51% of the total selected said they felt confident or very confident at that stage.
If we can now please turn to the survey carried out in January of 2021, the January 2021 survey ran for nine days from 12 January 2021 and had responses from over 19,700 children and young people.
We’ve now brought up document INQ000191147. If we can turn to page 9 of this document, please.
Under the section headed “Feelings”, at the third paragraph of this section, there is a comparison of findings between the May 2020 survey and the January 2021 survey. The survey states:
“There are some marked differences in reported feelings between the January 2021 respondents and the May 2020 respondents. In May 2020, 50% of [those aged between 12 and 18] reported feeling happy ‘most of the time’. This reduced to 39% in January 2021. Other [findings] … show negative trends, including a jump in those reporting feeling worried ‘most of the time’ from 14% of respondents to 20%.
“[Those aged between 7 and 11] responding in January also report more negative feelings on all indicators than the May 2020 respondents, but these differences were [noted to be] smaller.”
The Inquiry will have regard to the detailed findings of each of the surveys your office carried out. Can you please tell us in broad terms what the surveys told you about the impact of the pandemic upon children in Wales.
Professor Sally Holland: I think that the survey gave us the opportunity to take – to get views from a broad group of children, in fact it was one in 20 of children in Wales answered that – the first survey in May 2020. We were able to, of course, speak in depth to individual children, but this gave us a broad view.
It reminded us that children don’t all feel the same, they don’t all think the same, and that some children were thriving and feeling safe, but, as expected, some groups of children were finding the restrictions and the various changes to their daily way of life much more difficult than others. That impacted according to age. So adolescents tended to find things much more difficult and were more worried than children –
Counsel Inquiry: I’m sorry to interrupt you again. Can I just ask you to slow down –
Professor Sally Holland: I am trying.
Counsel Inquiry: – just a little bit, please.
Professor Sally Holland: Adolescents tended to be more worried about their learning and finding the restrictions more difficult than younger children, and children from black, Asian and minority ethnic communities and disabled children generally were finding life harder on almost all counts.
We saw a jump of unhappiness and worry and concern about learning between the first lockdown and the second lockdown. I think there was a sense of novelty in the first lockdown for many children, especially those who do feel safe and comfortable at home, which is the majority of our children, thank goodness, but the second lockdown was hard for the whole population and really hard for children in particular. And for adolescents, you know, they were getting near to another set of exams, they were concerned about their learning, and there were really missing socialising, that important developmental window that adolescents have to spread their wings and socialise with others.
I must emphasise, when we’re looking at the difference between the two surveys, that we don’t know whether the same children answered the survey both times, so I see it as much as a temperature test –
Counsel Inquiry: Yes.
Professor Sally Holland: – of how children were feeling in both of those lockdowns. However, we had such a large survey response, I’ve got some confidence that they’re a good representation on how children were feeling.
And they were pretty representative in terms of demographic factors and we worked hard to make sure that children who might not have easy access to answering a survey could do it, for example, children in custody, children in hospital, children – looked-after children, children in Roma communities, were all helped by support workers to fill in the survey.
Counsel Inquiry: Thank you, Professor.
How did your office use the surveys that had been carried out when providing advice to the Welsh Government?
Professor Sally Holland: We worked with the Welsh Government on the survey, which was very unusual for us, but we thought the government wanted to hear from children, we certainly knew we had to hear from children, and it felt not a good use of resources for us to run separate surveys, but we led and managed the survey. And we fed in – as soon as we had the first 5,000 responses in May, so really within days of the survey opening, we were feeding in to officials, and they were – to the education minister, for example, some key education and well-being messages, and we had it fed back to us by them that, you know, the minister was reading these as they came in. We made sure they had the results as early as possible. Indeed, we managed to publish the results within a couple of weeks of the survey closing.
Counsel Inquiry: Thank you.
Do you think the Welsh Government paid satisfactory attention to the findings of the surveys that your office had carried out?
Professor Sally Holland: I think that there’s not a simple answer to that, it’s not a simple yes or no. There were certainly ways in which, you know, we can document that they did, because they said they did, and indeed, you know, with our support both the education minister – well, the education minister, the First Minister and the Minister for Social Services all spoke directly to children, saying what they’d heard from these surveys in press conferences and videos.
We know that, for example – you know, one specific example is libraries being a priority for re-opening because particularly children from black, Asian and ethnic minority communities said that that was a very important resource for them.
There were other times when I felt that it would have been good to have seen more public reflection from the government directly to children, as a sense of accountability as to how they had considered the results of the survey. You know, there were really striking responses in the 2021 survey, for example, on loneliness amongst 16 to 18-year olds. I think that was quite a surprise to people who were thinking about it more from a perhaps older people and disabled people –
Counsel Inquiry: Thank you, Professor. I should be clear, the Inquiry will have regard to –
Professor Sally Holland: Absolutely.
Counsel Inquiry: – the detailed findings in the report.
I’d like to move on now to ask you about a key mechanism through which children’s rights are considered in decision-making and that’s through the children’s rights impact assessment.
Under the Rights of Children and Young People (Wales) Measure Act of 2011, Welsh ministers are required to have regard to the United Nations Convention on the Rights of the Child when exercising their functions, and an important part of how the Welsh Government meets this duty is completing and publishing children’s rights impact assessments; is that correct?
Professor Sally Holland: That is correct.
Counsel Inquiry: Can you please set out what a children’s rights impact assessment is supposed to cover and when it is supposed to be carried out, please.
Professor Sally Holland: So a children’s rights impact assessment should be started from as soon as a new policy or decision is being considered. It’s not something to be done after a decision has been made. And it doesn’t have to be at that point a formal document, but it should be around thinking about the impact on very – all of children’s rights, all 42 of their rights, but also the impact on different groups of children. And if there is going to potentially be a negative impact of a decision or a new policy or a new piece of legislation, then what would be the mitigations in place, and that should be an active, live discussion. Eventually it is written up into a formal document but the most important thing is that that thinking and consideration and analysis is done.
Counsel Inquiry: Thank you.
On 12 May 2020 members of your office met with officials from the Welsh Government about children’s rights impact assessments.
Can we, please, bring up document INQ000329376. Thank you.
This is an email that relays what was discussed at that meeting to you and others. If I can ask you, please, to look at page 1 of this email, on the second paragraph which has just been brought up. This states that officials had been asked to do CRIAs in relation to decisions that had already been taken at the outset of the lockdown. The email goes on to state that your colleagues had advised that CRIAs were not a matter of retrofitting assessments and the importance of transparency was emphasised.
After this meeting, you wrote to Julie Morgan on 22 May of 2020 outlining concerns related to children’s rights impact assessments arising from the meetings that had been held between your office and Welsh Government officials.
Is it fair to say that at this stage you were concerned regarding how children’s rights were being considered by the Welsh Government?
Professor Sally Holland: I was concerned at this point in May that so much resource was going into writing up and filling in forms about decisions that had already been made. In May 2020 there were so many important decisions still to be made or being made at that point about mitigating children’s current experiences and deciding about children’s, for example, return to school, and many other aspects of their lives. I really felt that at that point in the pandemic it was not a good use of resource and it was not how children’s rights impact assessments are meant to be done.
Counsel Inquiry: Thank you.
Concerns over children’s rights impact assessments and integrated impact assessments being undertaken after decisions from the Welsh Government had already been taken and announced were also raised in a weekly “matters arising” email covering the week between 10 and 16 June of 2020.
Could we, please, bring up document INQ000121208, thank you.
At page 2 of this document, under the heading “Children’s Rights Impact Assessments”, you state:
“My team has spent a lot of time in recent weeks reviewing draft CRIA and IIA documents [IIA being integrated impact assessments]; many of which have followed decisions already taken and announced. I have discussed this and agreed a suggested way forward with Karen Cornish as Deputy Director responsible for CRIA and children’s rights, so this point is included for information only.”
By this stage had the concerns that you had in relation to CRIAs been addressed?
Professor Sally Holland: Could you remind me of what month that was?
Counsel Inquiry: So this was a “matters arising” email covering the week between 10 and 16 June of 2020.
Professor Sally Holland: Not really, I would say. We were gradually – I would say from June onwards there was, we saw improvement in how the government itself was doing its own proactive impact assessments on children’s rights, but also their involvement of us in discussions as they were considering options. But I still felt that it wasn’t being used in exactly the right spirit, and I’ll give you one example, if I may.
In June 2020, the government was considering easing legal responsibilities on local authorities regarding special educational needs. This had already been enacted in the rest of the UK, but not yet in Wales. Our immediate response was: well, have you done a children’s rights impact assessment on this? This is a really important decision about children with specific rights.
And we were told, well, that will just be included in the overall integrated impact assessment, which includes a children’s rights (inaudible) a small part of it, that will cover all the responses so far on education and childcare. And I felt they were missing a trick, really, to use resources like ourselves and other members of the children’s rights action group from the third sector to sit down and really think through: well, what impact would this have? Do we really need to do it? If you really need to do it, how can we mitigate it?
And I think that that was, at that point, still a disappointment. As I say, from that point onwards we did see some more proactive children’s rights impact assessments being carried out, and in fact, you know, one or two very good examples of them by the autumn.
Counsel Inquiry: Thank you.
Professor, you do give examples of good children’s rights impact assessments in your witness statement and the Inquiry will have regard to those.
You also state in your witness statement that, following the discussions in June of 2020, a set of overarching principles was introduced into the system for children’s rights impact assessments later in 2020 and you say that these principles reflected matters of importance to children, such as being listened to, being able to attend education, and having the opportunity to play and have exercise.
Did the adoption of these principles address concerns that you had held regarding the use of children’s rights impact assessments to protect children’s rights?
Professor Sally Holland: It was good to see the – a child-centred approach, it was good to see these principles being published, but it’s very important that we use rights language when the government is talking about – and the government has a legal duty to do so – when talking about how they provide for children.
This is important because children must know that we don’t provide things – services for them, for example, because we think it’s a nice thing to do or a good thing to do, but they actually have rights too, they have fundamental rights, and an entitlement to them. And it may sound a little pedantic but it’s important that that language is used.
Counsel Inquiry: Thank you.
In your witness statement, you give examples of children’s rights impact assessments not being carried out at the time key decisions were taken during the pandemic. Which decisions do you consider to be particularly significant where children’s rights impact assessments were not carried out at the time the decision was taken?
Professor Sally Holland: Well, I’ve already given one example around special educational needs provision, they did eventually decide not to implement that legislation actually, but the early decisions in particular, the closure of schools and the early decisions to keep children at home with the rest of the population, it was very important that children’s specific needs were considered. I made it so clear to government that it was about the thinking not about the form filling.
Counsel Inquiry: Do you consider that not carrying out children’s rights impact assessments at the time decisions were made meant that children’s best interests were not given adequate consideration?
Professor Sally Holland: I think that we can see examples where children’s specific needs, as a specific population category, didn’t seem to be being seen separately from the whole population, and others where they were and where I feel that it was because children’s rights were being considered. May I give you an example of each?
Counsel Inquiry: Yes, please do, thank you.
Professor Sally Holland: So decisions that appeared to designed to address the negative impacts and to support children’s rights, including not removing children’s legal rights to social care, as well as additional learning needs provision, funding free school meals throughout the holidays, that was – as well as in term time, that was an early decision by the Welsh Government, and the real emphasis on well-being as well as academic skills as they returned to school.
But there were others that didn’t feel that children’s specific needs had been taken into account. Some quite vivid examples, really, parks and play spaces were – outdoor play spaces were re-opened to children after pubs had been opened in the summer of 2020. Pubs are obviously much more adults’ spaces than children’s. The following summer we were allowed to sit in pubs again and cafés with – without face coverings with up to six people from different households, but children were expected to sit in the classroom in an ordered situation in secondary schools and still wear face coverings, where they were still recommended.
And perhaps for me a really important example is that of how residential children’s homes were treated. So many of the public health guidance for children’s homes was exactly the same as those for older people, and obviously much more physically frail people, and we got very involved in the office because managers of children’s homes contacted us about their concerns that children were being asked to isolate if there had been perhaps one case in a children’s home for 28 days, in the same way as they would be if they were old and very physically frail, and not being able to attend school, for example, in that time. They weren’t being allowed to have contact with their families, a fundamental right, because they – their specific needs, as actually pretty healthy, often, young people, were not being seen separately from the whole population.
Counsel Inquiry: Thank you.
Professor, do you think the use of children’s rights impact assessments could be improved to better protect children’s rights in the future?
Professor Sally Holland: I think that certainly there were ways – I think that the government could use the Children’s Commissioner’s office better as a resource to consider decisions as they’re being considered, and other children’s rights experts as well. A very frequent ask for help we had from government during the pandemic was to review guidance that had been drafted for schools and for other settings, and we would give detailed comments back. Often within hours because it was always urgent of course.
I think that many of the comments we made could have been anticipated when they were – before pen went to paper to write that guidance, and we made clear we were available. So I think that they could do a really good job of just doing that proactive thinking about children’s rights rather than thinking: right, we’ve made the decision, now let’s consider how children’s rights are impacted.
Counsel Inquiry: Thank you, Professor.
I’d now like to ask you about a particular example of a decision being made where the Children’s Commissioner for Wales had involvement in the decisions taken by the Welsh Government, and the decision I would like to ask you about is the closure and re-opening of schools and early childcare provision.
We know that school closures were considered at an early stage of the pandemic. Were you consulted about the potential closure of schools prior to the first lockdown?
Professor Sally Holland: No, I was not.
Counsel Inquiry: Do you think you should have been consulted about this?
Professor Sally Holland: I think we would have had a lot to add, and we would have been able to really help consider mitigations, which we did straightaway that week, but we could have – we could have added a lot.
We have – we had internal discussions in early March with our policy team about how – what mitigations might be needed, how different groups would be affected if schools were closed, and we would have – I think government would have benefitted from our knowledge and experience.
Counsel Inquiry: Thank you.
You state in your witness statement that the initial decision to close school buildings to most learners would not have been contested by your office, as you agreed that the public health emergency warranted such a decision, but you did challenge the government about the lack of a children’s rights impact assessment in relation to this decision.
To the extent that you’ve not already covered this in your answers, what do you think a children’s rights impact assessment would have achieved at that stage of the pandemic?
Professor Sally Holland: I think that the pandemic reminded the whole population that schools are much more than just providers of academic learning. You know, they feed our children, they sometimes wash their clothes, and they are a very important source of well-being and support. And I think we would have really helped the government to think about that – all of the needs that are met by schooling and to think through how the sudden loss of those, for the majority of children, could have been mitigated.
Counsel Inquiry: Thank you.
In your statement you refer to the announcement in June of 2020 in relation to schools re-opening in the autumn term of that year. A draft impact assessment was published after that decision had been made, and you raised this with the Welsh Government through an email sent on 4 June of 2020, which we don’t need to bring up.
On 6 July of 2020 you wrote to Kirsty Williams, minister for education, asking for publication for plans relating to schools re-opening in autumn of 2020, and you raised the need to allow school leaders to plan for their provision, and you raised the necessity of planning for different eventualities that may lead to children being unable to attend school.
The Welsh Government produced a revised operation and learning guidance document for comment on 7 July 2020. Did that document address the concerns that you had raised regarding to appropriate planning for different scenarios when schools re-opened?
Professor Sally Holland: We commented on so many versions of the guidance, it’s hard for me to recall that exact one. But we did remain concerned throughout the summer that there wasn’t enough contingency planning should there be another upsurge in cases and a decision be made to close schools again, nor for children who may need to isolate – so not for the whole school to be closed but what would happen in terms of their continued support and education. And for children that may be unable to return because of shielding or who may lack confidence in returning or may need a lot of support to return to school, because although most children were eager to return to school, some were very anxious.
Counsel Inquiry: Thank you, Professor.
On 19 October the Welsh Government announced that there would be a firebreak lockdown from 23 October. When were you informed of that decision?
Professor Sally Holland: I did have some involvement with that closure, and that was the only period of school closure that my office and I were involved in before – we saw a draft and actually very comprehensive children’s rights impact assessment before the decision was made. It drew heavily on our survey findings. It did say that it would be difficult to mitigate any closures of schools in that time, a matter I raised when it was decided to close some of them, but we were involved early on.
Counsel Inquiry: Thank you.
Professor Sally Holland: Early-ish on.
Counsel Inquiry: Thank you.
Following the firebreak lockdown and the subsequent re-opening of schools, on 10 December of 2020 you were informed that secondary schools and colleges and many primary schools would be required to close from 14 December of 2020. You met on 10 December with Welsh Government directors and discussed plans in relation to the physical closure of secondary schools at that time. What were your concerns regarding the proposed closure of schools at that stage?
Professor Sally Holland: We were concerned that the closure of schools was really becoming an option that was – as almost one of the first options that was being used as part of virus control in terms of additional measures, and we wanted to know really exactly what the scientific evidence was to make sure that it was worth the impact that by then we knew that school closures would have. And we wanted to really remind government, because we were hearing, so often from young people themselves, that for them it wasn’t just that week – and at that point it was just proposed to be a week, of course it became much longer – but some children were having repeated requirements to self-isolate, often whole year groups if there had been a case in their year group, so some children had already lost – although healthy, had lost many weeks of schooling.
Counsel Inquiry: Thank you.
You just mentioned when schools in Wales ultimately did start to re-open, that being in late February 2021. Are you able to summarise the concerns that you had regarding the physical closure of schools over this reasonably lengthy period?
Professor Sally Holland: We knew by that point, partly because of our survey that we’d carried out in May, that school closures had a profound effect on children. We did accept that the government – if the government felt that the – it would make a big difference to, for example, deaths that it would – it may be necessary sometimes to have measures that also affected children, who were less affected by the virus itself, although not of course entirely. But we were concerned about the length of time and very keen that it should be as short as possible and that children should have the opportunity to be eased back into school as well. So the initial plans were for infants and the youngest children to come back in.
There was originally no plan for children in years 7, 8 and 9 to return before Easter in Wales and we suggested to officials and the minister that they should at least have check-in days so that they wouldn’t have that big hurdle of coming back after that big length of time. We had already done another survey by then and we knew that confidence in learning was low, and we’re glad to say that that was taken up, but it … it felt like a really hard period for children.
Counsel Inquiry: Thank you.
Do you think that the impact of children missing education was appropriately considered in the decisions made in relation to the closure and re-opening of schools?
Professor Sally Holland: I think that there were a number of ministers and senior officials who had a good understanding of children’s rights and of children’s experiences, and I had frequent discussions, for example, with the Deputy Minister for Social Services about the difficult impact it would have particularly on certain groups, and with officials, I would say particularly in the children’s branch, of Welsh Government.
I think sometimes that understanding we couldn’t always see it translated into the major decisions being made, but at other times we could see mitigations. And to return to the firebreak, I was concerned that there wasn’t a good explanation given, particularly to young people themselves, as to why years 9 and above were asked to stay at home, but because of the children’s rights impact assessment I do think that we did see primary schools, special schools and vulnerable children in school for that week. So I think it’s a very mixed picture.
Counsel Inquiry: Thank you, Professor.
Can I ask, please, for your views regarding the decision-making which led to schools being closed when the hospitality industry stayed open?
Professor Sally Holland: Sorry, did you say my views or my role?
Counsel Inquiry: Your views, please, whether you consider that to be appropriate?
Professor Sally Holland: Which period are you talking about at this point?
Counsel Inquiry: At various stages during the pandemic, but perhaps with specific reference to decisions in December of 2020.
Professor Sally Holland: Yes. I was in very regular contact with children and young people. For example, I had an advisory board of 30 young people from all over Wales, age 11 to 18, who I used as a bit of a kind of check-in and sense-making board, I met with them very frequently, and they, along with other young people we spoke to, had such a strong sense of what was fair. They thought it was fair that there should be measures, they were – to support the whole population, they were concerned about older people they knew, for example, but they had a keen sense of injustice at times where they felt that there were anomalies. And I agreed with them, there seemed sometimes to be an anomaly that was perhaps related to economic necessities rather than their immediate needs and long-term needs, in terms of well-being, education and development. And I think that juxtaposition of hospitality venues being open and schools being closed felt unfair to many children and young people.
Counsel Inquiry: Thank you, Professor.
I’ll now move to my concluding questions, which seek your views on how children’s needs were prioritised by the Welsh Government and how they might be prioritised in the future.
Do you consider children to have been a significant political priority of the Welsh Government at the start of and before the pandemic?
Professor Sally Holland: I think if we start with before, I’m – the only conversations that I am aware of, and you’ll be able to put this of course to the government themselves, was thinking about the implications for exams in – earlier – before the mid-March, for example. So I think there probably wasn’t enough consideration, even enough thinking about how long it all might go on at that point and therefore what the impact would be on children.
I think that, as time went on, as I say, there were parts of government where there was a keen awareness in terms of their discussions with me. I don’t think we always saw that coming out in all of the big decisions.
Counsel Inquiry: Thank you.
In her evidence to Module 2 of this Inquiry, the Children’s Commissioner for England, Anne Longfield, stated that the UK Government did not give adequate regard or priority to children’s best interests in response to the pandemic, did not adequately heed advice or evidence on the impact of the pandemic on children’s well-being in its decision-making, and did not provide adequate resources to mitigate the impact of the pandemic on children or to help them recover from its negative impact. She stated that this was especially true for disadvantaged children.
To what extent do you agree with this in relation to Wales?
Professor Sally Holland: I would say that that would be too strong a statement to say for Wales. You know, but having said that, I think as was said a number of times yesterday in this Inquiry, you know, for me, as Children’s Commissioner for Wales, I don’t see the UK Government as the baseline. We have high expectations, because it’s in our law. And at that point it was only in the law, embedded in the law, in Wales, it is now in Scotland as well, children’s rights. So it’s – we have high expectations. So I would say it would be unfair to say that the government didn’t pay regard to children’s rights and particularly didn’t consider disadvantaged groups. However, there was always more that they could have done, and I hope that I’ve managed to give you some examples of that.
Ms Cowen: Thank you very much, Professor, thank you.
My Lady, that concludes the questions that I wish to ask the –
Lady Hallett: Thank you.
Ms Cowen: – Children’s Commissioner.
Lady Hallett: I think Ms Heaven’s got one.
Questions From Ms Heaven
Ms Heaven: Professor Holland, I represent the Covid-19 Bereaved Families for Justice Cymru.
Just one very short topic, please, and it relates to the opening up of early years childcare provision in June 2020.
So we can see from Tracey Burke’s witness statement – and of course she was director general for education and public services for the Welsh Government at the time – she explains in paragraph 69, my Lady, that the Welsh Government were behind the UK Government in re-opening childcare in June 2020, and what she tells us is that childcare for early years opened in England on 1 June 2020 but it was only re-opened in Wales on 22 June.
So my question is this: do you consider that the Welsh Government should have re-opened early years childcare provision earlier and in line with the UK Government?
Professor Sally Holland: Thank you for that question.
I think that the decisions were working on a different timescale in Wales, and I know this whole module will be examining the impact of that, so that decision was in line with other decisions around schools, and I presume that’s why it was made.
I think I would have liked to have seen children of all ages being able to return to provision a little earlier than they did.
Ms Heaven: Okay. So can I ask just this tag-on question, then: were you consulted about these decisions specifically in relation to early years provision and re-opening?
Professor Sally Holland: Erm …
Ms Heaven: To assist you, there’s no evidence in your witness statement that you were.
Professor Sally Holland: Yes, I actually don’t recall that. I think I have to say that most of the evidence that we brought to the government was in relation to schools. There were occasions when childcare issues arose, so we were reflecting what we were hearing, and most of our discussions with government around childcare and education were around education rather than childcare, although we did certainly have some.
Ms Heaven: Thank you, my Lady, those are my questions.
Lady Hallett: Thank you very much, Ms Heaven.
I think that completes the questions today?
Mr Poole: My Lady, it does, it completes the evidence for today. I was just going to ask – sorry.
Lady Hallett: Sorry, I was just going to say: thank you very much indeed, Professor.
As you may know, I’m very conscious of the impact on children, not that I’m sure many of us realised it at the time, but I suppose because we never knew how long things were going to go on for, and we will be doing specific research, and so it may well be that I’ll call on your expertise again, but thank you anyway for all that you’ve done.
The Witness: You’re welcome.
Lady Hallett: Thank you.
(The witness withdrew)
Mr Poole: My Lady, just by way of housekeeping, can I ask for permission to publish all of the witness statements from the witnesses that you’ve heard today and also, going forward, the witnesses that you will also be hearing evidence from?
Lady Hallett: Certainly. It will be the default setting, unless anyone indicates to the contrary.
Mr Poole: I’m grateful.
Lady Hallett: Thank you very much. 10 o’clock tomorrow, please, when I think we move to other expert evidence.
(4.17 pm)
(The hearing adjourned until 10 am on Thursday, 29 February 2024)