Covid-19 – Care Act easements and suspension of local duties
The Coronavirus Act 2020 (Commencement No.2) Regulations 2020 enacted the following provisions of the Coronavirus Act 2020 (the ‘Act’) known as the Care Act ‘easements’:
- Section 15 (local authority care and support); and
- Part 1 of Schedule 12 (powers and duties of local authorities in England).
The Department of Health and Social Care has issued guidance regarding these provisions and local authorities should continue to do everything they can to continue to comply with the pre-amendment Care Act provisions and related Care and Support Statutory Guidance for as long and as far as possible.
The guidance states that “Local authorities and care providers are already facing rapidly growing pressures as more people need support because unpaid carers are unwell or unable to reach them, and as care workers are having to self-isolate or unable to work for other reasons. The Government has put in place a range of measures to help the care system manage these pressures.”
The easements are intended to relax the requirements of the Care Act 2014. It is important to note that the amendments are temporary and should only be exercised by local authorities where this is essential in order to maintain the highest possible level of service.
What has changed?
The changes broadly fall into four categories:
1. Local authorities will not have to carry out detailed assessments of people’s care and support needs in compliance with pre-amendment Care Act requirements
Local authorities are still expected to respond as soon as possible (within a time-frame that would not jeopardise an individual’s human rights) to requests for care and support, consider the needs and wishes of people needing care and their family and carers, and make an assessment of what care needs to be provided. All assessments and reviews that are delayed or not completed will be followed up and completed in full once the easements are terminated.
It may not be possible or necessary for assessments themselves to be face-to-face. Local Authorities are advised to consider whether assessments could be delivered through other means, taking into consideration people’s cognitive and communication needs and mental capacity, examples include telephone assessment, supported self-assessment or via third party.
2. Local authorities will not have to carry out financial assessments in compliance with pre-amendment Care Act requirements
They will have powers to charge people retrospectively for the care and support they receive during this period, subject to giving reasonable information in advance about this, and a later financial assessment.
3. Local authorities will not have to prepare or review care and support plans in line with the pre-amendment Care Act provisions
This is the case whether or not the duty arose prior to the coming into force of the emergency legislation and whether or not the person is making a financial contribution to their care. Local authorities will still be expected to carry out proportionate, person-centred care planning which provides sufficient information to all concerned, particularly those providing care and support, often at short notice. Where they choose to revise plans, they must also continue to involve users and carers in any such revision.
4. The duties on local authorities to meet eligible care and support needs, or the support needs of a carer, are replaced with a power to meet needs
Local authorities will still be expected to take all reasonable steps to continue to meet needs in accordance with their existing duties. In the event that they are unable to do so, the powers will enable them to prioritise the most pressing needs.
Annexes B and C to the guidance provides further information on streamlining assessments and reviews and the prioritisation process.
Decision to operate the easements
A local authority should only take a decision to begin exercising the easements, when the workforce is significantly depleted, or demand on social care increased, to an extent that it is no longer reasonably practicable for it to comply with its Care Act duties (as they stand prior to amendment by the Coronavirus Act) and where to continue to try to do so is likely to result in urgent or acute needs not being met, potentially risking life.
There may be variation in the pressures on different local authorities and as such the decision to operate the easements should be taken locally. This decision should first be agreed by the Director of Adult Social Services in conjunction with or on the recommendation of the Principal Social Worker. The Health and Wellbeing Board should be kept informed. The decision should also be fully informed by discussion with the Local NHS CCG leadership. Local authorities must have a detailed record of the decision with evidence that was taken into account. Any decision taken should also be communicated to all providers, service users and carers. The accessibility of communication to service users and carers should also be considered. The decision should also be reported to the Department of Health and Social Care.
Prioritisation decisions should follow the principles in the Ethical Framework for Adult Social Care.
Duties which remain in place
- Duties in the Care Act to promote well-being and duties relating to safeguarding adults at risk remain in place.
- Duties in the Mental Capacity Act 2005 relating to Deprivation of Liberty Safeguards (DoLS) remain in place. Guidance on the operation of DoLS during the pandemic was published on 9 April.
- Local authorities’ duties relating to prevention and providing information and advice also remain in place.
- Duties imposed under the Equality Act 2010 also remain, including duties to make reasonable adjustments, the Public Sector Equality Duty and duties towards people with protected characteristics.
Action plan for social care
On 15 April 2020 the Government published an action plan for social care during the coronavirus outbreak. The action plan reiterates that local authorities should only begin using the easements when “absolutely necessary and by always following the Care Act easements guidance”. It also emphasises the need for communication of decision making.
Suspension of social care duties
More than half a dozen local authorities have introduced easements to date. At least one has been challenged by lawyers on behalf of a resident for not providing evidence about following the guidance issued by the DHSC. Disability Rights UK and Liberty have released statements opposing the action taken by those local authorities who have triggered the easements. They have called for immediate demonstration of the standards required by government before relaxation of duties.
The House of Commons Library produced a briefing on 6 May which provides an overview of changes to local authority duties around the provision of adult social care during the Coronavirus outbreak.
The briefing comments that if a person disagrees with a local authority’s decision regarding their social care they can complain to the authority. If, after completing the local authority complaints process, a person is still not satisfied, they can raise the matter with the Local Government and Social Care Ombudsman. However, on 26 March 2020 the Ombudsman announced that it had suspended “all casework activity that demands information from, or action by, local authorities and care providers, in light of the current Coronavirus outbreak.” The Ombudsman said that this decision was made “to allow care homes and councils the breathing space they need to deliver those frontline activities without distraction”.
CQC maintains its role and has issued an Emergency Support Framework outlining how its working practices to assess care providers’ performance will operate during the pandemic. Find out more about this in our separate briefing.
Care providers should ensure that sufficient information about individual care needs is provided by local authorities so that appropriate decisions can be made about referrals and funding.
Care providers should assess their own legal obligations to their service users and whether they can meet needs. Any plans devised for care and support should document what information has been requested and provided including local authority assessment.
Assessment and rational decision making is required in respect of an individual’s human rights under the European Convention on Human Rights i.e. the right to life under Article 2, the right to freedom from inhuman and degrading treatment under Article 3 and the right to private and family life under Article 8.
A collaborative approach is preferred but where providers are concerned about lack of information or changes to service provision they should document proposed and agreed arrangements and escalate concerns.
This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.