Late on Wednesday, the Coronavirus Act 2020 was passed. The Act is effective immediately save for the changes to Local Authority funded care until the review clause is invoked.

Unprecedented Changes

Sadly, a number of the concerns we reported on previously (click here), have not been addressed before the Bill became Law. The House of Commons and House of Lords certainly made a concerted effort to scrutinise whether the changes are proportionate and necessary.

Baroness Grey-Thompson’s comments in the House of Lords summarise perfectly the potentially devastating impact the Coronavirus Act 2020 may have on access to education, health and social care provision. The Baroness stated:

“There is a need for part of this emergency Bill; however, the draconian measures outlined made it a personal necessity for me to be here today. This is a health and social care obliteration Bill by a different name. Alan Benson captured many views when he said that we have been fighting for 30 years and now it is about survival. Inclusion London has said that, ‘buried deep’ in the Bill is ‘the complete removal of social care responsiblities, for at least two years’. […]

In addition:

“The Bill is a temporary suspension of most of the duties contained in the Care Act 2014. Is this any more than just a cost-saving exercise? […]

Concluding with:

“A Bill of this magnitude will be life-changing for disabled children”.

So many questions remain unanswered – ranging from what will happen when a disabled child turns 18 and transitions from children’s to adult’s social care, to how those people whose needs are not met during the emergency period where a Local Authority decides not to exercise its power to meet needs will be tracked.

Local Authority Funded Care – Power, not a Duty

The duties on a Local Authority to assess and meet needs for care and support, where a needs assessment has determined that an adult meets the eligibility criteria are suspended.

Instead, the Coronavirus Act 2020 places a power, not a duty, on a Local Authority to meet care and support needs for an adult ordinarily resident in the Local Authority’s area who satisfies the eligibility criteria.

In exercising that power, a Local Authority must have regard to any guidance issued by the Secretary of State about how local authorities are to exercise this power. This guidance is likely to be published imminently.

Whilst the explanatory notes to the Coronavirus Bill suggested there will still be an expectation on Local Authorities to meet needs if they are able to and to prioritise provision as necessary, the mere fact that it is an expectation, not a duty, leaves anyone in need of social care support during the emergency period in a very vulnerable position.

It is worth highlighting however that there is nothing in the Coronavirus Act 2020 preventing a Local Authority from carrying out carrying out a needs assessment, making an eligibility determination, or preparing a care and support plan. In addition, general public law duties are not suspended and so any decision taken under the Act must comply with human rights obligations. In addition, any decision taken must be lawful, rational and fair.

If a Local Authority develops a policy to assist with how and when it will decide to exercise its power, rather than duty to meet need, such a policy will need to comply with the public sector equality duty.

In the first instance, if you, or a loved one are in need of care and support, and you are not being discharged from an acute hospital setting, it is best to contact the responsible Local Authority and request care and support as you ordinarily would do. The process if being discharged from Hospital is different and is explained later on in this article.

In order to persuade a Local Authority to exercise its power to meet social care needs, you will need to at, the very least, explain why the Local Authority should consider exercising its power to provide you with support, with reference to the care outcomes contained within the eligibility criteria.

Caveat to the Power, not a Duty

This power is underpinned by a duty to meet those care and support needs where not to do so would be a breach of an individual’s human rights.

When requesting support from a Local Authority during the emergency period, consider whether a failure to do so may breach human rights. If so, explain why, to strengthen your case with reference to any supporting evidence which may be available.

If a Local Authority refuses to meet needs for care and support the first step will be to ask why. Understanding the reasons behind the decision will be essential with reference to any guidance made available and/or any policy the Local Authority devises. If you remain unhappy with the Local Authority’s decision, seek legal advice.

These provisions are technically not effective until enacted through regulations, which we can only hope will also provide further clarity on how this will operate in practice.

Financial Assessments & Charging

The power for a Local Authority to provide urgent care to individuals without completing a full needs assessment, and without a financial assessment makes sense. It does mean a Local Authority can act quickly to put in place care when resources are under significant pressure due to the challenges posed by Coronavirus.

You may, therefore, receive a package of social care during the emergency period without charges being raised from the outset.

The risk to the individual, however, is that the Coronavirus Act 2020 does not prevent a Local Authority from retrospectively charging for care and support provided albeit charges cannot be raised unless an appropriate financial assessment has been completed.

A Local Authority is at liberty to complete a financial assessment during or after the emergency period has ceased.

Possibility of Retrospective Charging

Patients, families, and representatives ought to be very mindful of the possibility that retrospective charges may be raised.

It may be wise to approach agreeing to packages of care during the emergency period with the usual principles of considering whether you satisfy the means-testing rules beforehand, in order to determine if you would ordinarily be considered a self-funder unless eligibility for a non-means tested NHS package of care (such as NHS Continuing Healthcare) is likely to be available.

If, upon this analysis, it is the case that you may ordinarily be a self-funder, or required to contribute towards the cost of your package, be prepared to incur this cost in the event that retrospective charges are raised.

Bear in mind also that self-funders usually pay higher rates than those paid by public bodies. The weekly or monthly cost of care may therefore be higher once public funding is withdrawn.

For information on what the ordinary means-testing rules are, click the link to our financial assessments information sheet.

It is hoped that the anticipated regulations and guidance will provide some further clarification relating to financial assessments and the possibility of retrospective charging.

Care and Support Contracts

The legislation is silent on the issue of whether the individual or their representative is expected to agree a contract for care with a provider directly if public bodies are to foot the bill.

It is not yet clear how the transition process from being a publicly-funded recipient of care to a self-funder is likely to take place, if, under the Care Act 2014 rules, an individual would ordinarily be deemed a self-funder unless eligible for non-means tested NHS funded care.

Think carefully before signing any care and support contracts or agreements. If in doubt, seek legal advice.

Choice of Accommodation

As is explained in the context of the revised Hospital Discharge procedure below, the usual rules relating to a choice of accommodation will not apply. This means that if a patient’s first choice of care or nursing home does not have a vacancy, the patient may be discharged to an alternative care home until the patient’s first choice becomes available.

Annual Reviews

Ordinarily, reviews of a care package should be completed annually (i.e. every 12 months) by virtue of the Care Act 2014 Statutory Guidance. During the emergency period the obligation to review is suspended.

This means a Local Authority does not have to complete an annual review of an existing package of support during the emergency period.

If you are someone already receiving a package of care commissioned by a Local Authority, it may be the case that any planned annual reviews could be postponed until the emergency period has ceased.

Equally, in a situation where an existing package has broken down, or there is concern that a person’s needs are not being met, there is no guarantee that the responsible Local Authority will agree to complete an unplanned review until we return to business as usual.

Cuts to an Existing Care Package

It is worth knowing that whilst the duty to complete reviews is suspended, the duty to follow due process if a care package is reviewed is not.

This means that for anyone in receipt of an existing care package, cuts cannot be made unless a proper review of the existing care and support plan has been completed. The review must also involve the individual, family or representatives, and an advocate.

If you are concerned that your existing package may be cut, seek legal advice.

Transition to Adult Social Care

A Local Authority is not required to comply with its duties relating to completing a transition assessment during the emergency period.

It seems highly likely that this will serve to only further worsen what is often described as the “cliff edge”.

NHS Funded Care

The Coronavirus Act 2020 puts on a statutory footing the revised procedure for Hospital Discharge.

During the COVID-19 emergency period, the existing notion of ‘discharge to assess’ and ordinary Hospital Discharge processes will be suspended in favour of a default plan of ‘discharge home today’.

The idea is to expedite the safe discharge of patients from acute hospitals to free up acute beds as quickly as possible.

At the point at which a patient is deemed safe and ready for discharge, the patient should be discharged that same day.

Charging for Care & Discharge Today

Support provided as a result of ‘Discharge Today’ will be paid for by the NHS to ensure the focus is on moving patients from acute hospitals as soon as possible.

This means you, or a loved one, should receive all ‘Discharge Today’ care on a non-means tested basis, free, at no cost.

There is the possibility however, as explained above, that a Local Authority may complete a financial assessment at a later point retrospectively with a view to backdating the charges in respect of any social care provided.

The ‘Discharge Today’ process

A full, detailed explanation of the ‘Discharge Today’ process can be found by clicking here to access our blog explaining the new Hospital Discharge guidance.

What happens to NHS Continuing Healthcare whilst ‘Discharge Today’ is in place?

A series of temporary arrangements will be implemented during the emergency period. These arrangements cover:

• The assessment of eligibility for NHS Continuing Healthcare funding.

As highlighted in our article on Friday, eligibility assessments for NHS Continuing Healthcare for individuals falling within the ‘Discharge Today’ acute hospital discharge pathway and in community settings will be suspended until the end of the emergency period.

Unfortunately, the Act does not contain further detail on this point and it seems likely that further guidance may be required.

For anyone requiring care outside of an acute hospital setting, the process for requesting an NHS Continuing Healthcare eligibility assessment remains the same.

During the emergency period, however, NHS bodies are not required to complete an eligibility assessment, or to have regard to the National Framework, the guidance which governs NHS Continuing Healthcare assessments and appeals.

You may well, therefore find, that even if an NHS body agrees to complete an eligibility assessment, there could be variations in the way the assessment and decision-making process is undertaken. At this stage the likelihood of this is difficult to predict.

• Individual requests for a review of an eligibility decision – i.e. Local Resolution and Independent Reviews.

Individuals can still challenge refusals to award NHS Continuing Healthcare funding (i.e. an eligibility decision) in accordance with the current appeals processes however, the time frame for a response will be relaxed.

It seems highly likely that most NHS bodies will simply acknowledge a Local Resolution request and advise there is likely to be a delay in the appeal being processed. Convening a Local Resolution meeting or Independent Review Panel in person should not happen whilst the current social distancing advice is in place.

If staffing allows, all we can hope is that if it is possible to complete any appeals during the emergency period, Local Resolution meetings and Independent Review Panels can be convened using telephone or video conferencing.

• 3 month initial case reviews, and 12 month annual reviews of NHS Continuing Healthcare funded packages of care.

NHS bodies are advised to take a proportionate view to undertaking 3 and 12 month reviews to ensure an individual’s care package is meeting their needs and any concerns are addressed.

It is seems highly likely, therefore, that as with any reviews of a Local Authority funded care package, NHS Continuing Healthcare reviews will be delayed.

If you have concerns about applying for, and securing NHS funded care, or how to challenge a refusal to provide NHS funded care, seek legal advice.

A further article explaining the changes to special educational needs provision and mental capacity will follow in due course.

An update relating to how Local Authorities will be expected to decide when to exercise the ‘power’ to meet care needs will be provided once the new regulations and guidance has been published.

If you have any questions, please contact our community care law solicitors or healthcare solicitors today, for a free initial consultation. Email us at online.enquiries@la-law.com or calling 023 8082 7483.