Social care provisions under Schedule 12 of the Coronavirus Act 2020 came into force on 31 March 2020 when The Coronavirus Act 2020 (Commencement No.2) Regulations 2020 became law. Under the 2020 Regulations, Local Authorities have the power to misapply or modify certain duties in the Care Act 2014.
The new regime does not apply to all duties in the 2014 Act, but allow local authorities to “ease” the requirements in certain sections of the 2014 Act, when the following condition is met:
“…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 that “…to continue to try to do so is likely to result in urgent or acute needs not being met, potentially risking life”
Late last week, it was announced that Sunderland City Council, Middlesbrough Council, Warwickshire County Council, Staffordshire County Council, Birmingham City Council and Solihull Metropolitan Borough Council have now triggered the easements. Presumably this must be sign that they are now struggling to ensure that urgent or acute needs are being met. Other Councils may well follow suit.
This means that these Councils have triggered the relaxation of the following requirements from the Care Act 2014:
- assessments of needs for individuals’ care & support (section 9, 2014 Act)
- assessments of carers’ needs (section 10, 2014 Act)
- assessments of eligibility criteria under sections 9 & 10 (section 13, 2014 Act)
- assessments of financial resources (section 17, 2014 Act)
- duty to meet needs for care and support (section 18, 2014 Act)
- next steps after assessments (sections 24, 25 and 27, 2014 Act)
In practice, this should enable Councils to continue to deal with the practicalities of ensuring that urgent and acute care needs are met in respect of placements in the immediate term, without facing legal action for failing to meet the usual Care Act 2014 duties. If, indeed, things at these Councils have reached critical levels, and the relaxation of the easements has been taken as an essential and proportionate measure to enable care needs to be met, this is not necessarily a bad thing.
However, the Care Act 2014 was enacted for a reason. Its provisions ensure that people’s needs are properly and thoroughly assessed, and grant some certainly on the financial position that individuals going into care will or may face and what elements of their care they will be eligible for funding for. To some extent, this also provides commercial and legal certainty for providers.
The 2020 Regulations do not envisage a carte blanche disapplication of pre-existing practices. In order to determine that human rights are not at risk of being breached, local authorities will have to undertake some form of assessment and to show this has been done, they will need to consider care needs, and document decisions taken in light of those assessments.
The government published guidance alongside the 2020 Regulations, which provides some insight as to how they expect them to be applied. This incorporates an ethical framework to assist social workers in how they should carry out their functions. The guidance makes it clear that at least some form of assessment should be carried out and they may still have to provide services to meet assessed needs where a failure to do so would result in a breach of the human rights of the service user, or their carer.
At the very least, care needs still need to be considered and an assessment required of what those individuals need to keep them safe and well. This will be necessary to enable consideration and evaluating the consequences (on human rights) of not providing support. Ultimately, Local Authorities are still expected to continue taking and applying a person-centred approach to care planning. They will need to justify, and document reasons for the decisions they take in light of the current circumstances.
How the easements will work in practice, and whether any adverse outcomes may arise remain to be seen. We sincerely hope that it is not service users, their carers or families who lose out as a result of LA’s triggering the easements but the requirement to undertake some form of assessment – albeit not necessarily to the extent required under the Care Act 2014 – should mitigate this risk, at least to some degree.
Providers are already facing an unprecedented crisis, and in many cases are overstretched and struggling on a number of fronts in trying to respond. Unfortunately, we are seeing relationships with local authorities already under strain and we hope, for providers’ sakes that the triggering of the Care Act 2014 easements does not also mean there will be a deluge of retrospective disputes over funding or care needs or complaints arising, when the dust has settled.
If providers require any assistance with, or advice on arrangements with local authorities, or on the easements to the Care Act 2014 more generally, please contact Ridouts on 0207 317 0340 or via e-mail to email@example.com .