Coronavirus (COVID-19) has caused significant changes to people’s lives, changes which would have seemed unimaginable only a few weeks ago. In response, the Government has introduced the Coronavirus Act 2020. It came into force on 31st March 2020 and has granted the Government emergency powers to handle the coronavirus pandemic.
The Care Act “easements”
As part of this legislation, Care Act ‘easements’, were created to help local authorities prioritise care and support during the coronavirus outbreak.
The easements, which are temporary, have essentially relaxed the Care Act 2014 requirements for local authorities to assess or meet social care needs. However, it still requires them to ensure the best possible provision of care to people in these exceptional circumstances.
Guidance to local authorities from the Department of Health and Social Care (DHSC) is that the easements ‘should only be used’ when it is not possible for local authorities to comply with their duties under the Care Act 2014. The DHSC also states that local authorities should comply with their usual Care Act provisions and related Care and Support Statutory Guidance for ‘as long and as far as possible’ – this means that they must carry on as normal as long as they can continue to do so.
Where do the easements apply?
The guidance states the local authority should only apply the easements where it has decided that ‘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’ and that ‘to continue to try to do so is likely to result in urgent or acute needs not being met, potentially risking life’.
The Coronavirus Act 2020 does not affect the safeguarding protections in the Care Act. This means Local Authorities are expected to continue to offer the same level of safeguarding oversight. The Safeguarding Guidance clarifies that adult safeguarding remains a statutory duty of local authorities in order to keep the most vulnerable safe from abuse or neglect. See more information on safeguarding and councils’ responsibilities here.
What do the easements include?
The easements include:
- Assessing needs – suspension of the obligation to conduct an assessment of the needs of adults, children and carers. The usual rules on this can be found here.
- Determining eligibility – suspension of duties in relation to determining eligibility for care and support. The usual rules on this can be read here.
- Meeting needs – weakening of the duty to meet adults’ and carers’ needs for care and support so that this is only required where it would otherwise result in a breach of rights under the European Convention on Human Rights.
- Care and support plans – suspension of the requirement to prepare or review care and support plans.
- Financial assessments – suspension of the obligation to conduct financial assessments. However while local authorities will not be able to charge for care without having done an assessment, this charge can be applied retrospectively after the end of the emergency period. Information on how financial assessments normally work is available here.
- Choice of accommodation – suspension of the duty to give effect to an adult’s preferred place of accommodation.
What the powers actually change
The changes fall into four key categories, each one is applicable for the duration the powers are in force:
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.
However, they are still expected to respond as soon as possible to requests for care and support, to consider the needs and wishes of people needing care and their family and carers, and to make an assessment of what care needs to be provided.
This means that if you apply to the council for support, the assessment you receive might not be as detailed as usual. However, it should still be comprehensive enough to get a good idea of what you need help with and you should leave with an idea of what sort of support might help you.
2. Local authorities will not have to carry out financial assessments in compliance with pre-amendment Care Act requirements.
They will, however, 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.
This will ensure fairness between people already receiving care and support before this period, and people entering the care and support system during this period. In practice, this might mean that the council pays for your care for the time being, but it will need to conduct a financial assessment once it is in a position to do so, and, if you do need to pay towards the cost of your care, you will be back-charged the amount you are assessed as able to afford.
3. Local authorities will not have to prepare or review care and support plans in line with the pre-amendment Care Act provisions.
They will, however, 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.
The council still cannot change the care and support you receive without your involvement, or the involvement of your carers if you want them to be involved.
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 as now. In the event that they are unable to do so, the powers will enable them to prioritise the most pressing needs. For example enhanced support for people who are ill or self-isolating, and to temporarily delay or reduce other care provision.
Are the easements helpful for you, and what can you expect?
In these chaotic times, temporary laws, which allow individual local authorities to prioritise care decisions, and which give them the mandate to no longer deliver some services, will undoubtedly affect the quality of care. They will also likely create uncertainty for people using services and those looking for care and information.
People cannot expect the same service when the easements have created so many variables which are likely to incorporate by each local authority to a lesser or greater extent.
The easements have provided flexibility for the local authorities at a time of unprecedented demand, but the lack of certainty will make it more difficult for those who are not satisfied with local authority decisions and wish to challenge them.
The local authority will be able to raise the easements as Government recognition that these are unprecedented times and any reduction in service was after legitimate decisions were made on prioritisation.
What happens if my support is reduced or withdrawn?
However, people can take some comfort from the legislation which provides certain protections. Each local authority will have to justify their decisions and are expected to observe the Ethical Framework for Adult Social Care which provides a structure against which local authorities can measure the decisions, and reinforces that the needs and wellbeing of individuals should be central to decision-making. In particular, it should underpin challenging decisions about the prioritisation of resources where they are most needed.
The decision-making process in the guidance makes clear that a staged approach must be applied, and appropriate consultation engaged in. Moreover, any decision taken to prioritise or reduce support must be reviewed every two weeks and a full service must be restored “as soon as is reasonably possible”.
Local authorities will remain under a duty to meet needs where failure to do so would breach an individual’s human rights under the European Convention on Human Rights. These include, for example, the right to life, the right to freedom from inhuman and degrading treatment and the right to private and family life.
What should you do now?
I would advise that those seeking care or information should check with their local authority what care act easements they have implemented or are likely to implement and to gain a full understanding of what the impact will be on care.
For instance, the easement which relates to the suspension of financial assessments could have a significant impact on people. Local authorities are not able to charge for care without having done an assessment, but people should be aware that when a financial assessment is completed and a charge is due, it can be applied retrospectively and the person who has been receiving services will be held accountable for the outstanding charges.
The coronavirus outbreak will eventually pass, care services will return to normal and the Care Act 2014 will again be implemented in full. In the meantime, like all services which have to be reduced, there will be an impact. Early and continuous communications with local authorities – and a full understanding of the impact on care – will provide some certainty in these challenging times.
Criminal Defence and Regulatory Associate Solicitor.