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COVID-19 & the impact on Adult Social Care

Coronavirus Act 2020 & Care Act 2014 easements

Schedule 12 of the Coronavirus Act 2020 suspends the statutory duties of local authorities in England to assess and meet the eligible needs of adults and carers. The duty to assess and meet needs in England is replaced by the power to do so.

The exception to this is where a failure to assess or meet needs would result in a breach of a person’s Convention Rights. This is a very high threshold as per existing case law. This is highlighted in the matter of R (on the application of McDonald) (Appellant) v Royal Borough of Kensington and Chelsea (Respondent) [2011] UKSC 33. The facts of this matter were that Ms McDonald had been receiving support with getting to the toilet overnight from the Royal Borough of Kensington and Chelsea. The council however decided to withdraw the support and Ms McDonald was expected to use incontinence pads instead even though she was not incontinent. Ms McDonald applied for Judicial Review and included a claim under Article 8 that she had been exposed to both risk and indignity. Both the Administrative Court and the Court of Appeal found in favour of the local authority. Despite Ms McDonald’s view the local authority argued that the use of pads was less of a threat to dignity than the support of a carer and that the risk of falls would be minimised. The Article 8 claim was then considered in the Supreme Court but the appeal was dismissed by a majority verdict of 4-1.

Lady Hale gave a dissenting judgment for the Appellant on a point that, although not taken by the Appellant, was raised in Age UK’s intervention. Age UK described this decision at the time as ‘shameful’ and the Equality and Human Rights Commission called it a ‘significant setback’ saying that as a result ‘older people's human rights to privacy, autonomy and dignity will often be put at serious risk.’

It is therefore for the time being up to local authorities in the absence of any breach of a person’s convention rights whether to assess and meet a person’s needs. These easements to the Care Act 2014 having come into force on 31 March 2020 by way of statutory regulations as per The Coronavirus Act 2020 (Commencement No.2) Regulations 2020.

The position is the same in Wales with amendments to the Social Services and Wellbeing Act 2020 coming into force on 1 April as Schedule 12 of the Coronavirus Act 2020 also suspends the duties of Welsh local authorities to both assess and meet needs. This duty is replaced by a power to do so with Welsh local authorities only having a duty to assess or meet needs where a failure to do so would put the person at risk of abuse or neglect.

The main provisions of the Coronavirus Act 2020 will expire after two years with a review by Parliament after 6 months. The purpose of the legislation is to increase the size of the available health and social care workforce at any given point during the pandemic, ease the burden on frontline staff, contain and slow the virus whilst also supporting those with needs.

The changes fall into four main areas with these being:-

1.Assessment of Needs – local authorities will not have to carry out any detailed assessments of people’s care and support needs in compliance with Care Act 2014 requirements.

2.Financial Assessmentlocal authorities will not have to carry out financial assessments in accordance with the requirements of the Care Act 2014. Local authorities will have a power to charge people retrospectively for the care and support they receive during this period, subject of course to giving reasonable information in advance about this, and completing a financial assessment at a later date.

3. Review of Care and Support Plans - local authorities will not have to review care and support plans in line with the Care Act 2014. 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. Where local authorities choose to revise plans, they must also continue to include both service users and carers in any such decision.

4. Eligibility - the duty to meet eligible care and support needs is replaced by a power to prioritise the most pressing needs. Local Authorities will still be expected to take all reasonable steps to continue to meet needs. 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 less urgent care provision.

The guidance which sets out how local authorities can use the new Care Act 2014 easements says that local authorities should continue to comply with the Care Act 2014 for as long as possible. Any changes are of course due to a local authority applying the easements will of course be temporary in nature. The duty of local authorities to safeguard adults at risk remain the same.

How can a local authority exercise easements to the Care Act 2014?

As previously discussed the Coronavirus Act 2020 allows for the making of statutory regulations to permit easements from the Care Act 2014. These regulations now having been made are in force.

Local Authorities will be expected to observe the Ethical Framework for Adult Social Care which provides a structure for Local Authorities to measure their decisions against. Further this reinforces that the needs and wellbeing of individuals should be central to decision-making. In particular it should underpin challenging decisions as to the prioritisation of resources where they are most needed.

There are a number of specific steps which are vital for the local authority to take prior to exercising any easements to the Care Act 2014. These being that a local authority should only take a decision to exercise the Care Act easements when the workforce is significantly depleted or when social care demand has increased to such an extent that it can no longer comply with the statutory duties contained within the Care Act 2014. In addition it must also be shown that any attempt to comply with its statutory duties under the Care Act 2014 would also result in urgent or acute social care needs not being met and potentially risking life.

Any decision to reduce care provision and to exercise any easements to the Care Act 2014 should be made by the Director of Adult Social Services in conjunction with the Principal Social Worker with discussions taking place with the local NHS Clinical Commissioning Group. Any decision to start prioritising services will also need to be reported to the Department of Health and Social Care.

It is vital that any decision is proportionate and evidence based with local authorities making a written record of the decision to include:

  • The nature of the changes to demand or the workforce
  • The steps that have been taken to mitigate against the need for this to happen
  • The expected impact of the measures taken
  • How the changes will help to avoid breaches of people’s human rights at a population level
  • The individuals involved in the decision-making process
  • The points at which this decision will be reviewed again

The following Department for Health and Social Care Care Act easements: guidance for local authorities at Annex A sets out the decision making tables for Local Authorities. Please see the following link for details of the staged process:-

https://www.gov.uk/government/publications/coronavirus-covid-19-changes-to-the-care-act-2014/care-act-easements-guidance-for-local-authorities

These decisions need not necessarily sequential but should follow a situation where there are increasing pressures on adult social care delivery. Key stages can be enacted together or separately over time so long as the decision to do so is evidenced and follows the guidance set out below.

Local authorities are likely to experience an increase in demand for services during the period of the current pandemic. The fact that assessments for NHS continuing healthcare are postponed until the end of the pandemic is further likely to increase demand on local authority services. The guidance whilst not being overly complex is lengthy and it is vital that local authorities comply with the same to avoid as far as possible any future adverse publicity and litigation. The Secretary of State for Health and Social care Matt Hancock can of course compel local authorities to comply with any statutory guidance falling under Schedule 12 of the Coronavirus Act 2020.

At the present time there are 8 local authorities nationwide whom are known to be operating the easements to the Care Act 2014. Most are at Stage 3 and are streamlining their processes under stage 3 of the easements while continuing to provide care and support to people with eligible needs. The local authorities doing so are thought not to be providing hard copies of assessments or care and support plans to people and limiting choices of providers. By way of an example Coventry City Council is carrying out less detailed assessments due to completing these remotely and is further completing less detailed care and support plans and not undertaking scheduled reviews. The next stage to enact for a local authority at stage 3 would be stage 4 if the workforce has been depleted to such an extent or demand increased to the extent that it needs to enact stage 4 and begin rationing care to those with low level needs.

As an important side note in respect of the discharge of patients from hospitals to care homes which has likely contributed in a greater outbreak of the pandemic in residential settings. It is not clear why the NHS Nightingale hospitals which currently have significant capacity and are underused are not being utilised as appropriate step-down facilities. This would enable a safe discharge of elderly patients from other hospitals whilst protecting those vulnerable persons already in residential settings.

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