Social Care Duties and the Coronavirus Act 2020

As a professional property and affairs deputy, we frequently work alongside Local Authorities and their social service teams to ensure the support and care needs of our clients are met. Local Authorities duties to assess and provide or arrange services to meet those needs are set out in the Care Act 2014 (“the Care Act”). The Care Act imposes a legal duty on Local Authorities to assess and meet all eligible needs.

However, on the 31 March 2020 the Coronavirus Act 2020 (“the Act”) was brought into force as an emergency response to the Covid-19 crisis. Section 15 and Schedule 12 of the Act in effect, allow Local Authorities to suspend many of their legal duties. This could have a very serious impact on those individuals with social care needs.

The Act introduces changes to the Care Act, known as easements. These must be actively triggered by a Local Authority in order for the provisions to be applied. If the easement is triggered, it effectively downgrades the duties of a Local Authority to powers and will permit them to lawfully prioritise its resources and an individual’s needs so that only the most urgent needs are met.

If the easement is triggered, the Act set out that a Local Authority does not have to meet their duties under the following provisions of the Care Act:

• Section 9 – duty to assess an adult’s needs for care and support
• Section 10 – duty to assess a carer’s needs for support
• Section 13 – duty to determine whether needs meet the eligibility criteria
• Section 17 – duty to assess financial resources
• Section 24 – 27 duties in relation to care plans
• Section 37 – 38 – Duties in relation to a person who moves area to ensure continuity
• Sections 58 to 64 – duty to assess and meet a child’s or their carers needs

The Act does not permit changes to be made to Local Authorities’ duties to safeguard, on wellbeing, prevention, advocacy and the application of the Mental Capacity Act.

The Government guidance on the process for triggering can be found here.

According to the Act the measures will be used as narrowly as possible and will be time limited. The guidance states that “ A Local Authority should only take a decision to begin exercising the Care Act 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”.

In order to trigger the easement, a local authority must consult internally and with the Health and Wellbeing Board and the Local NHS CCG leadership. They must also provide a clear record of their decision with evidence and justification and report the same to the Department of Health and Social Care (DHSE). At present it is difficult to know which Local Authorities have triggered the easement as there are no proposed plans for a centralised public record to be introduced.

On the 30^th April it was reported by the CQC here that the following 7 Local Authorities had triggered the easements:

1. Sunderland City Council
2. Warwickshire County Council
3. Staffordshire Count Council
4. Birmingham City Council
5. Solihull Council
6. Derbyshire County Council
7. Coventry City Council

In practice this means that those Local Authorities that trigger the easement are not obliged to assess an individual’s needs, meet all eligible needs or review a care plan, unless the failure to do so, will result in a breach of an individual’s human rights under the European Convention on Human Rights (ECHR).

The introduction of the changes and its future impact is a cause for concern. The Act allows the rights of an individual’s needs to be reduced significantly. The threshold for breaching one’s human rights under the ECHR is a high one and will no doubt prove difficult to argue. This will cause delays to the delivery of care to many of the most vulnerable individuals in society and puts them at risk of harm.

The Act comes at a time when many Local Authorities were already struggling to meet individuals social care needs and the process a Local Authority must go through to trigger the easement is notably not a rigorous one. Local Authorities may be quick to trigger the easement to protect their resources with no real justification or accountability as to their decision making.

The longer-term impact of these changes is yet to be seen and practitioners should be alert to the developments in this area to ensure any decisions taken by a Local Authority in this respect are clear and justified.

*Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*