Thursday 18 June 2020

The Coronavirus Act 2020 allows ‘easements’ of certain duties of local authorities under the Care Act 2014, effectively suspending those duties temporarily. What does this mean for councils and their ongoing duty of care?

The Coronavirus Act 2020 was brought into force at the end of March 2020, enabling the Government to respond to and manage the effects of the COVID-19 pandemic.

The Act and its associated guidance emphasise that easements should only be exercised by councils where essential to provide the highest level of services, also councils should comply with their existing Care Act duties for as long as possible. 

A council should only enact the easements when its workforce is significantly depleted, or demand on social care increases so much the council cannot meet its duties under the Care Act.

What Care Act duties can be eased? 

The four primary areas in which easements may be exercised by councils are:

  • Councils do not have to carry out detailed assessments of care and support needs. However, they must for example respond to requests for care and support as soon as possible.
  • Councils do not have to carry out financial assessments. However, they can retrospectively charge people for care and undertake a retrospective financial assessment after the end of the emergency period, so long as the council informs service users there may be a charge at the time the care is provided, or prior to the care being provided. 
  • Councils do not have to prepare or review care and support plans. However, they must still provide proportionate person-centred care planning.
  • The duty of a council to meet eligible care and support needs are replaced with a power to meet needs. This is designed to allow the council to prioritise the most pressing needs. 

What safeguards are there when easements are enacted?

These easements are subject to various protections and safeguards, for example:

  • There is no easement of section 1 of the Care Act. This places a duty on a council to promote an individual’s wellbeing. 
  • The official guidance to the Care Act easements is deemed statutory and gives the Secretary of State power to direct councils to comply with the guidance.
  • That guidance states councils must observe the Ethical Framework for Adult Social Care
  • Any changes are still underpinned by duties under the European Convention on Human Rights, the Equalities Act 2010 and discrimination law. 
  • Duties also remain under the Mental Capacity Act 2005, regarding deprivation of liberty safeguards. 
  • The council must carry on with its normal duties under the Care Act for as long as possible.
  • Easements are only temporary. 

How can a local authority enact the easements? 

The guidance sets out a four-stage process to enact the easements: 

  • Enact duties as normal under the Care Act for as long as possible.
  • Use existing flexibilities within the Care Act to delay or cancel services if required by pressures created by the COVID-19 pandemic.
  • ‘Streamlining’ – formally activate easements under the Coronavirus Act 2020 to cease formal assessments and move to proportionate assessment and planning.
  • ‘Prioritisation’ – whole system prioritisation. For example, allocating capacity from one service to another service.

When enacting stages three and four, the council should ensure decisions are undertaken by informed discussions with local stakeholders, such as NHS partnerships. Decision-making must be recorded properly to ensure accountability. The council should also notify the Department of Health and Social Care.

What effect might enacting easements have? 

Several councils across the UK have enacted easements to the Care Act to various extents, since the introduction of the Coronavirus Act. Charities and pressure groups have raised concerns that vulnerable service users may be adversely affected. 

There may be potential negative side effects of the enactment of easements. For example, commonly a service user’s care needs will change, and the care plan will need to be updated. In normal times, it can be a protracted process to get the service user’s care plan updated and amended suitably by a council. A private provider can be left without the proper funding or staffing to meet increased needs of the service user, while awaiting an updated care plan. If a council has also enacted a Care Act easement and is not required to carry out a detailed care assessment, there is a risk the service user would not receive the care they require. 

We shall see what effect easements will have on the social care sector and its service users. Our view is that any such easements should only be enacted if absolutely necessary. 

Jennifer Johnston, Associate, BLM (jennifer.johnston@blmlaw.com)

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