As a result of the Coronavirus outbreak there have been staff shortages in the social care sector and an increased pressure on services. One of the Government’s stated aims in passing the Coronavirus Act 2020 was to enable local authority social care departments in such circumstances to prioritise care for people with the most pressing needs.
The provisions of the Coronavirus Act relating to adult social care in England came into force on 31 March 2020 and the changes to the law are significant, albeit temporary. A number of legal duties to meet the needs of disabled people are suspended.
Prior to these changes, a local authority’s duties towards adults in need of care and support in their area were those contained in the Care Act 2014. Under the Care Act, where it appears that an adult might have needs for care and support, or a carer required assistance in meeting the needs of someone else, the local authority was under an obligation to carry out a detailed assessment of those needs.
An equivalent assessment duty exists where it appears to a local authority that a child is likely to have needs for care and support after turning 18. If a child is currently receiving support from children’s services then this must continue while the Care Act assessment takes place.
The Care Act then imposes a duty on local authorities to meet these assessed needs if the needs are ‘eligible’ following the preparation and review of care and support plans. This will be the case if they:
- are due to “a physical or mental impairment or illness”;
- prevent someone from achieving at least two of a number of specified outcomes such as personal hygiene, maintaining relationships, and undertaking work or training; and
- this has a significant impact on their wellbeing.
Where a local authority arranges care and support to meet a person’s needs, it may charge for this support on the basis of an assessment of what the person can afford to pay.
What has changed?
The Coronavirus Act suspends or modifies all of these key Care Act duties so that they no longer apply. This is the case whether an individual’s needs arose before or after 31 March 2020, and irrespective of it they were already in receipt of services before that date.
Local authorities are no longer required to assess needs or provide services to meet needs unless failure to meet those needs would result in a breach of the human rights of the person in question. The local authority is not prevented from assessing and meeting needs as before but the duty to do this has been replaced with a power. What this means in practical terms is that local authorities can choose to assess and meet needs, but they do not have to (unless it would lead to a breach of human rights).
Local authorities are not required to conduct financial assessments and they cannot charge for services they provide if there has not been a financial assessment. However, they can charge retrospectively after a financial assessment has been completed at a later date. This is problematic because those who are offered services, or their families, will have to choose whether or not to accept those services with potentially little indication of the level of bill they may receive at a later date. This is particularly egregious given the uncertain financial circumstances many families find themselves in presently. However, none of the fundamental principles underpinning the Care Act statutory guidance on charging and financial assessments are removed or diluted. Guidance states that local authorities cannot charge retrospectively unless they gave “reasonable information in advance about this”. Further the guidance explains that if people are charged retrospectively, this should be on the basis of a financial assessment in line with the Care Act and on the basis that people should pay what they can afford, and any charges are clear.
What are the implication of the changes?
These dramatic modifications to the Care Act have understandably caused concern that disabled or vulnerable people could be left without support.
However, there remain some safeguards in place. Some or all of these could offer a route to challenge wrongful decisions or treatment by social services, including a failure to meet and assess needs.
The new regime for adult social care does not come about automatically and local authorities have been instructed to only bring it in when absolutely necessary. Guidance from the Department of Health and Social Care says that local authorities should not stop complying with their duties under the Care Act until:
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 where to continue to try to do so is likely to result in urgent or acute needs not being met, potentially risking life.
The guidance sets out that any decision that a local authority cannot continue to comply with its’ Care Act duties should be taken in collaboration with local NHS partners. The justifications for deciding to depart from the Care Act and start prioritising services must be recorded, and once taken the decision must be communicated to all care providers, service users and carers, as well as the Department of Health and Social Care. Until this happens, local authorities should comply with all the pre-amendment Care Act requirements.
In addition, local authorities are still be expected to:
Respond as soon as possible (within a timeframe that would not jeopardise an individual’s human rights) to requests for care and support, consider the needs and wishes of people needing care and their family and carers, and make an assessment of what care needs to be provided…[and to] take all reasonable steps to continue to meet needs as now.
They should still observe the principles in the Ethical Framework for Adult Social Care which include treating people with respect and involving them in decisions about their care.
Certain other key Care Act duties remain in force such as the duty to promote wellbeing when providing care and support, to safeguard adults at risk of abuse or neglect and to arrange for an independent advocate when required.
There is an additional safeguard in the Equality Act 2010 which requires that the local authority not discriminate in the exercise of its functions.
The Coronavirus Act states that the local authority remains under a duty to meet needs if this is necessary to avoid a breach of an adult’s human rights. Relevant provisions of the European Convention on Human Rights are the right to life, the right not to suffer inhuman or degrading treatment and the right to respect for privacy and family life. The bar is very high, however, to show in law that a failure to provide care has resulted in a human rights breach. Circumstances would have to be very severe such as for example an inability to access food or any toilet facilities.
Although the requirement under the Care Act to carry out a detailed assessment of needs may be set aside as a result of the Coronavirus Act, it is clear that some form of assessment or evaluation will still have to be undertaken by local authorities in order to comply with the guidance, their duty to ensure there is no human rights breach, and other remaining statutory obligations. This applies equally to any termination or change to a care package already in place. Guidance states that local authorities are:Still… expected to carry out proportionate, person-centred care planning which provides sufficient information to all concerned, particularly those providing care and support, often at short notice. Where they choose to revise plans, they must also continue to involve users and carers in any such revision.
Although there is still uncertainty about if and when social care departments will adopt a new approach, it is important to note that local authorities have not been given free rein.
If you or someone you know has been affected by changes to the Care Act, and you would like to discuss any of the issues above with the solicitors in the Public Law & Human Rights team, please do not hesitate to contact us on 020 7833 4433 or make an enquiry.
This blog was written by Grace Benton, Paralegal, Public Law & Human Rights Team and Farhana Patel, Solicitor, Public Law & Human Rights Team.