Introduction

The Health Protection (Coronavirus, Restrictions) (England) (Amendment) (No 2)  Regulations 2020 make changes to the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (‘the 2020 Regulations’) from 13 May 2020. What are the changes made? There are changes that add to the non-exhaustive list of reasonable excuses for leaving or being outside of the place a person is living, a small liberalisation for accommodation businesses, a couple of additions to the businesses that can continue to supply goods and services direct from their premises, and increases in the amounts payable under fixed penalty notices.

For a Summary of the 2020 Regulations as made, see my blog post Summary of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (from 1 pm on 26 March 2020). For detailed coverage, see Movement and Gathering Restrictions under the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (from 1 pm on 26 March 2020)  and the Closure of Premises and Businesses under the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (from 1 pm on 26 March 2020). For the changes made on 22 April 2020, see my blog post Changes to the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, in force from 11 am on 22 April 2020.

The Changes in force from 13 May 2020

Restrictions on Movement

To the list of reasonable excuses to leave or be outside of the place where you are living is added: to collect goods which have been ordered from a business permitted to offer goods for sale or for hire in a shop that would be supplied by making deliveries in response to orders received: (1) through a website, or otherwise by on-line communication: (2) by telephone, including orders by text message; or (3) by post. Many goods ordered on-line, etc., are not delivered but collected from the shop or a collection point. This change makes it clear that collecting such goods amounts to a reasonable excuse.

In the list of reasonable excuses to leave or be outside of the place where a person is living, the excuse of ‘to take exercise either alone or with other members of their household’ is replaced by:  to take exercise:

• alone
• with one or more members of their household, or
• with one member of another household

A reasonable excuse now expressly includes to take exercise with any or all members of a person’s household, or with one member of another household, but not it seems with one member of their household and one member of another household.

To the list of reasonable excuses to leave or be outside of the place where a person is living is added: to visit a public open space for the purposes of open-air recreation to promote their physical or mental health or emotional wellbeing:

• alone
• with one or more members of their household, or
• with one member of another household

A reasonable excuse now expressly includes to visit a public open space. Thus, it expressly includes sitting in a park even if not taking exercise. In addition, a person may do so with any or all members of their household, or with one member of another household, but not it seems with one member of their household and one member of another household.

In addition, it must be for the purposes of open-air recreation to promote their physical or mental health or emotional wellbeing. How is a person authorised to issue a fixed penalty notice to assess whether this provision has not been satisfied? How are the Crown Prosecution Service to judge whether an offence has been committed?

A public open space is defined to include:

• land laid out as a public garden or used for the purpose of recreation by members of the public
• land which is ‘open country’ as defined in the National Parks and Access to the Countryside Act 1949 as read with the Countryside Act 1968 (may include woodlands, canals, mountain, moor, heath, down, cliff or foreshore, etc.)
• land which is ‘access land’, see the Countryside and Rights of Way Act 2000

In the list of reasonable excuses to leave of be outside of the place where you are living, the excuse of to travel for the purpose of work or to provide voluntary or charitable services, where it is not reasonably possible for that person to work, or to provide those services, from the place where they are living is amended, so that travel for the purpose of is removed. Thus the emphasis is now on the activity to be undertaken and no longer merely the travel for such purpose.

In the list of reasonable excuses to leave or be outside of the place where you are living, the excuse of to move house where reasonably necessary is replaced by:  to undertake any of the following activities in connection with the purchase, sale, letting or rental of a residential property:

• visiting estate or letting agents, developer sales offices or show homes
• viewing residential properties to look for a property to buy or rent
• preparing a residential property to move in
• moving home (note ‘home’ not ‘house’ is used; note too that it no longer has to be ‘reasonably necessary’)
• visiting a residential property to undertake any activities required for the rental or sale of that property

The elaboration of the stages of moving home signifies a liberalisation in this area of activity.

In the list of reasonable excuses to leave or be outside of the place where you are living is added:  to use a waste or recycling centre. It is clear that such centres may open.

Accommodation Businesses

 A person responsible for carrying on a business consisting of the provision of holiday accommodation, must cease to carry on that business during the emergency period. To the list of reasons where a person may continue to carry on their business and keep any premises used in that business open is added to provide accommodation for any person:

• who works in one of the critical sectors listed in the guidance titled “Guidance for critical workers who can access schools or educational settings” published by the Cabinet Office and the Department for Education and updated on 5th May 2020, and
• whose need for accommodation is connected to their work

 This amendment makes a necessary addition to the short list of reasons why accommodation businesses may carry on and keep premises open. It assists critical workers.

Businesses Supplying Goods and Services Direct from Premises

 To the list of businesses that can continue to supply goods and services direct from their premises is added garden centres and outdoor sports courts. Note outdoor gyms must still remain closed.

The Closure of Businesses  

The list of businesses that are closed is amended so that it is now only indoor sports courts that must be closed.

Fixed Penalties

 The tariff for fixed penalties is modified. Substantial increases are made.

For the first occasion a person receives a fixed penalty notice, the amount specified under paragraph is no longer £60 but £100. Such a fixed penalty notice must specify that if £50 (prior to amendment £30) is paid before the end of the period of 14 days following the date of the notice, that is the amount of the fixed penalty.

However, if the person to whom a fixed penalty notice is given has already received a fixed penalty notice the amount specified as the fixed penalty is in the case of the second fixed penalty notice received is no longer £120 but is now £200. Thereafter the tariff for subsequent fixed penalties is amended so that it is:

• in the case of the third fixed penalty notice received £400 (previously £240)
• in the case of the fourth fixed penalty notice received £800 (previously £480)
• in the case of the fifth fixed penalty notice received £1,600 (previously £960)
• in the case of the sixth and subsequent fixed penalty notices £3,200 (previously £960)

Savings

The provisions of the 2020 Regulations providing for fixed penalties and criminal offences continue to have effect in relation to any offence committed, or reasonably believed to have been committed, before these changes came into force as if the changes had not been made.