The Care Act easements – how have local authority responsibilities to provide care to the vulnerable changed in the light of Covid 19?

The new Care Act easements, created under the Coronavirus Act 2020, took legal effect on 31 March 2020. They gave local authorities the power to prioritise care to those who are most in need of it. When exercised by local authorities, the easements achieve this by suspending a number of local authority duties, including the following:

1. Local authorities do not have to carry out detailed assessments of care and support needs in compliance with previous Care Act requirements, unless this would result in a breach of human rights. However, local authorities are still expected to respond as soon as possible to requests for care and support, consider the needs and wishes of those needing care and their family and carers, and make an assessment of what care needs to be provided;

2. Local authorities do not have to carry out financial assessments in compliance with previous Care Act requirements. However, those receiving care can still be charged retrospectively for the care and support they receive during this period, subject to them receiving reasonable information in advance, and a later financial assessment;

3. Local authorities do not have to prepare or review care and support plans in line with the previous Care Act provisions. However, local authorities are still expected to carry out proportionate, person-centred care planning which provides sufficient information to those involved, particularly those providing care and support. Where plans are revised, local authorities must continue to consult the person involved and carry out a needs assessment;

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 are still expected to take all reasonable steps to continue to meet needs. However, where they cannot do this, the powers under the Care Act easements enable them to prioritise the most pressing needs. This could include enhanced support for people who are ill or self-isolating, and/or temporarily delay or reduce other care provision.

How long will the easements last?

The Care Act easements are intended to be temporary and should only be exercised by local authorities where this is essential. The Secretary of State keeps them under review and it is anticipated that they will be brought to an end, as soon as possible, on expert clinical and social care advice.

What steps are local authorities required to take before exercising Care Act easements?

A local authority should only take a decision to begin exercising the Care Act easements when their workforce is significantly reduced, and/or demand on social care has increased, to an extent that it is no longer reasonably practicable for it to comply with its Care Act duties because to do so is likely to result in urgent/acute needs not being met, potentially risking life. Any change resulting from such a decision should be proportionate to the circumstances in a particular local authority.

Do local authorities need to complete delayed or incomplete assessments/reviews?

All assessments and reviews that are delayed or are incomplete should be followed up and completed in full once the easements are terminated.

Do the Care Act easements apply to those in need of care who are discharged from hospital or in need of NHS Continuing Healthcare (CHC)?

The Hospital discharge service: policy and operating model Guidance makes it clear that local authorities should make provision for Care Act assessments of need, financial assessments and longer-term care planning for those being discharged from hospital, if this is necessary. From 1 September 2020, new or extended health and care support will be funded for a period of up to 6 weeks, for those being discharged from hospital, or to provide urgent care to those who would otherwise have been admitted to hospital.

The Coronavirus Act 2020 also allowed NHS bodies to postpone NHS continuing healthcare (CHC) assessments until the end of the emergency period. However, CHC assessments resumed from 1 September 2020.

Accountability of local authorities

The Legal Ombudsman has restarted investigating complaints against local authorities in June 2020, after these investigations were temporarily suspended in the light of the pandemic.

If you require advice on whether the local authority is obliged to assess care and support needs and/or arrange care for you, or a loved one, or what options are open to you if a local authority refuses to undertake an assessment, please get in touch with us.

Nicola Gunn is a partner in the Court of Protection and Family departments. If you require assistance please contact Nicola on 0207 940 4057 or nicola.gunn@anthonygold.co.uk.

*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.*