The Government has provided Local Authorities with the ability to relax their adherence to certain duties such as to conduct care assessments; determine eligibility for the receipt of care; assess financial resources; and to meet the needs of care and support to individuals under the Care Act 2014. These powers came into force from 31 March 2020 as under the Coronavirus Act 2020 and are supported by guidance to that effect.
These powers are available to be triggered if the threshold of a significant depletion of Local Authority staff or, conversely, if the demand on social care increases to the point whereby it ceases to be reasonably practicable for Local Authorities to continue to fulfil their duties under the Care Act. That decision must be taken by the Local Authority Director of Adult Social Services with or on the recommendation of the Principal Social Worker. Local Authorities are required to show their working as to how they justify that the critical moment has been reached that would necessitate the reliance upon these relaxation measures (so-termed “easements”). The Government has passed the buck onto Local Authorities to allow localities to make their own decisions as to whether such a threshold has been met. It would appear that the intention of Government is such that these measures are a last resort. In any event they are designed to only be used for the shortest period possible.
What impact could these measures have on providers and indeed those who should be in receipt of care?
This is largely dependent upon the uptake of these measures by Local Authorities. Providers are already under pressure with staffing supply which will be exacerbated as more people self-isolate with suspected Coronavirus symptoms or test positive for the virus. The practicality of Local Authorities seeking to prioritise their actions towards those most in need may have the consequence of denying a great deal of individuals who would ordinarily be in receipt of care services receiving those services at the correct level, if at all.
It could result in a system failure and the burden of taking a decision as to whether care should be provided may fall upon providers themselves in the absence of referrals being made by the Local Authority. This is an extreme scenario and the Government has provided Local Authorities with the means by which to effectively roll back the state’s involvement in the assessment of care in all but those most in need. The current / potentially historical position where individuals have contacted the Local Authority for an assessment of care needs would be done away with if Local Authority capacity to field these enquiries is impacted. This could result in an upsurge in direct enquiries to providers or an increase in individuals that should be in receipt of care being denied access to it.
The Local Authority duty to meet the needs of care and support in section 18 of the Care Act 2014 is one of the provisions which no longer needs to be followed under this new law. There is however still the longstop that the removal of this duty would only be effective to the extent that the removal does not breach the Convention rights of the person who should be in receipt of care and support. The most relevant Convention rights being the Article 2 right to life, Article 3 protection from inhuman or degrading treatment; Article 8 protection of privacy and family life and Article 14 protection from discrimination. The bar to be met is very high in order to justify such a provision of care and support and whilst there is case law which sets out some examples of when each of those rights need to be protected this is likely to be triggered in the most extreme scenarios and would be considered against the backdrop of Local Authorities’ capacity to fulfill such duties.
There will be no requirement to carry out a financial assessment prior to a change in placement or a new placement which could lead to a difficult scenario for an individual and providers. If these relaxations are relied upon an individual could agree to a care package and indeed so could a provider and after normal Local Authorities have been resumed there may be the scenario where an individual cannot afford the costs of the placement. Whilst the gravity of the current crisis is not to be underplayed it could see those admitted to care placements faced with unexpected bills going forwards.
These measures are only in force if a Local Authority seeks to trigger their use. In the event that they are triggered this does not absolve a Local Authority from performing all of its duties. Key duties in the section 42 of the Care Act which relates to safeguarding investigations where abuse is alleged and deprivation of liberty safeguards remain and are clearly essential. The Government has been clear in the absence of addressing these topics that they represent areas which should still, even in the worst case scenario, take precedence above other areas covered by the Care Act.
If these measures are taken by Local Authorities there could be the unintended consequence of a rise in admissions to hospitals. This could result in an overburdening of the NHS so it stands to reason that the decision as to whether Local Authorities should resort to these measures should have been one that was taken at a national level and not devolved to Local Authorities. In any event the situation is that the ultimate decision is to be taken at a local level and the Government is hopeful that the scenario where the threshold is met to trigger the relaxation in adherence to duties proposed under the Care Act is never met.
These measures are designed as a means of last resort and it is likely if they were to be triggered that NHS’ capacity to manage demand for its services would be significantly under threat. It remains to be seen whether Local Authorities will choose to determine that the threshold has been met to justify the utilisation of these measures.
The spirit of the guidance would suggest that the Government’s intention is for these measures to be the exception rather than the rule used in only the most extreme of scenario. If they are used they are only to be used on a temporary basis and the priority should be to get back to normal service as soon as is reasonably possible. Nevertheless the Government has provided Local Authorities with these powers to cover all potential bases.
Providers of social care would do well to take note of this new landscape which may have a significant impact on referrals to care homes through a Local Authority commissioner. This could have a consequential financial impact on care providers: either by way of reduced admissions or, by receiving admissions without a rigorous financial assessment which could see individuals admitted without sufficient means to maintain their placement in the longer term.
It is foreseeable that actions in respect of safeguarding activities may increase with Local Authorities focusing on a more refined remit so, as ever, providers should ensure that they robustly engage with such enquiries. In these unprecedented times providers should ensure that their own assessments of the needs of those in receipt of care are rigorous and that there is sufficient capacity within their service to care for those referrals.
- Guidance on Care Act easements: https://www.gov.uk/government/publications/coronavirus-covid-19-changes-to-the-care-act-2014/care-act-easements-guidance-for-local-authorities
- Schedule 12, Coronavirus Act 2020: http://www.legislation.gov.uk/ukpga/2020/7/schedule/12/enacted