The Coronavirus Act 2020 brought in the right for Local Authorities to cease operating to fulfil their normal statutory duties towards disabled people and their carers, known as an ‘easement’ of their Care Act obligations. These changes could have a serious impact on the assessment and provision of care for disabled people, and should be kept under close scrutiny.
The provisions came into force on 31 March 2020, but when activated by a Local Authority, would also dis-apply any duties which arose before this date.
Section 15 of the Coronavirus Act introduces the easements and details of the changes are found in schedule 12. Statutory Guidance was published on 1 April 2020 and should be followed by Local Authorities.
What is the effect of the easements?
If a Local Authority decides to activate the easements, they will not have to comply with the following duties and powers towards disabled adults and their carers:
Duty to assess an adult with potential care needs (s.9 Care Act 2014)
Duty to assess a carer (s.10)
Duty to give written record of assessments (s.12(3) and (4))
Duty to consider whether an adult or carer’s needs meet the eligibility criteria to be provided with care and support (s.13)
Duty to meet needs for care and support (s.18) unless it is necessary to meet those needs for the purpose of avoiding a breach of the adult’s Convention rights.
Importantly, application of the easements The general duty for a Local Authority to promote wellbeing set out in section 1 of the Care Act is not modified by the Coronavirus Act.
When can Local Authorities apply the easements?
Easements should be applied as a last resort, when continuing to try to meet the Care Act duties “is likely to result in urgent or acute needs not being met, potentially risking life”. When applied, it should be done so as narrowly as possible.
There are four main stages set out in the Guidance:
One: Fulfilling duties and powers under the pre-amended Care Act – ‘business as usual’ – should continue for as long as possible.
Two: Where there are staff shortages in certain service areas, steps can be taken to prioritise the short term allocation of care and support. The Care Act and the Care and Support Statutory Guidance already allows for a certain level of flexibility when it comes to assessing and meeting needs. For example, assessments can be conducted by telephone and there is a broad range of discretion Local Authorities provision of services to meet needs.
Three: The initial stage of activating the easements involves streamlining assessments and the provision of care. Local Authorities can stop carrying out formal Care Act assessments, applications of eligibility and reviews. However, at this stage, Local Authorities are expected to do everything they can to identify and meet eligible needs.
Four: The final stage of the easements would occur where there are insufficient resources to meet all needs. Local Authorities can prioritise needs across service types and between individuals, for example, reducing personal care for one person so that it can be allocated to another in more need. Sufficient care and support will have to remain in place at all times in order to ensure that the Convention rights of all those in need of care and support, and of carers, are respected.
Throughout this time, Local Authorities will be expected to observe the Ethical Framework for Adult Social Care, which sets out high level principles for providing care and support.
What steps must Local Authorities take before and after applying the easements?
The Guidance identifies the Local Authority officers and other local partners, such as the NHS, who should be involved in the decision-making.
The Local Authority should keep a record of all decision-making, along with the evidence that was taken into account.
A decision to move onto stages three and four (activating the easements) should be to all providers, service users and carers. The accessibility of communication to service users and carers should be considered.
The decision should also be reported to the Department of Health and Social Care (‘DHSC’).
Any decisions taken to prioritise or reduce support should be reviewed every weeks and a full service should be restored as soon as is reasonably possible.
What are the potential issues?
Campaign groups and charities have identified at least six Local Authorities which have started to apply the easements, but there may be more. It is of real concern that there is currently no official central list, as this will likely result in disabled people and their carers now knowing what law their Local Authority is operating under. There are therefore calls for the DHSC to publish a list of all Local Authorities which have notified them under the Guidance.
Taking the step to rely on the Coronavirus Act easements to reduce or remove Local Authority assessment processes and care services should only be made in the most serious of circumstances, and decisions should be subject to scrutiny to ensure that the rights of disabled people and their carers are protected.
The following questions should be asked and could form the basis of a challenge to Local Authority actions:
- Has the Local Authority taken steps to exercise their powers to meet an adult or carer’s needs?
- How has the Social Worker assessed whether an adult or carer’s Convention rights are engaged?
- What criteria has the Local Authority used to prioritise needs? Is this criteria non-discriminatory and has it been applied in a non-discriminatory way?
- Has the Local Authority exhausted all other ‘stages’ identified in the Guidance before activating the easements?
- Has the Local Authority communicated the changes to the service users and carers in their area?
- Has the Local Authority notified the Department of Health and Social ?