Last week, we reported on the unprecedented changes the Coronavirus Act 2020 was set to make to accessing Local Authority & NHS funded care.

Click here to access the full article, which provides a comprehensive explanation of these changes.

Late on Tuesday, the Coronavirus Regulations Act 2020 (Commencement No 2) Regulations 2020 (the Regulations) and Care Act Easements Guidance for Local Authorities (the Guidance), we had been anxiously awaiting, were published. It is these Regulations and Guidance which give effect to the Coronavirus Act 2020 changes in relation to the Care Act obligations of Local Authorities.

The provisions will remain in force until such time as the Secretary of State decides they are no longer necessary.

What do the Regulations and Guidance say? Do they answer any of the unanswered questions? How will this impact those seeking to access Local Authority & NHS funded care? What does this mean for care providers?

The Regulations

The Regulations are brief. Much of the relevant detail is contained within the Coronavirus Act 2020 itself, the new Guidance, and the Hospital Discharge Guidance published previously.

Regulation 2 provides that Section 15 of the Coronavirus Act 2020 (relating to Local Authority care and support), and Part 1, Schedule 12 (which details the changes to the duties and powers of Local Authorities in England) come into force with effect on 31 March 2020.

What does this mean?

All this means is that the changes we explained in our recent article are legally effective (i.e. they are law) with effect from 31 March 2020.

Are all the pre-amendment Care Act 2014 duties suspended with immediate effect?

No. Local Authorities cannot simply decide that with effect from 31 March 2020 they will no longer comply with the Care Act 2014 statutory duties we are all so familiar with.

The Guidance makes it explicitly clear that the expectation is for Local Authorities to continue operating on the basis of business as usual (including the usual Care Act obligations) until such time as the criteria or threshold for initiating the process to operate under the so-called ‘easement’ provisions is met.

The Guidance

The Guidance answers some of the questions we have flagged previously, but unfortunately, many still remain unanswered.

What is clear at first glance is that the Guidance is very much designed to afford Local Authorities discretion. It is very much the case that Local Authorities are expected to follow the process set out in the Guidance for initiating operation of the easement provisions in response to changes in local resources and to ensure they can meet local needs.

This is, of course, a significant departure from what we all know and love because the Care Act 2014 very much provides a national set of duties and processes for all adult social care teams to implement. It will undoubtedly lead to variations of approach by Local Authorities around the country.

What does the phrase ‘easement provisions’ mean?

The Department for Health & Social Care has opted to use the phrase ‘easement provisions’ to describe the process and powers available to a Local Authority to deviate from the usual Care Act 2014 processes.

The Guidance is clear, however, that:

 “Local Authorities should do everything they can to continue meeting their existing duties prior to the Coronavirus Act 2020 coming into force”

In relation to the easement provisions, the Guidance states: “They are time-limited and are therefore to be used as narrowly as possible”.

What is the threshold for when a Local Authority can instigate using the easement provisions to relax the specified Care Act 2014 obligations?

The Guidance does not explicitly provide for a threshold as such, however, it states:

“A Local Authority should only take a decision to begin exercising the easements to the Care Act 2014 provisions when 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 the Coronavirus Act 2020) and where to continue to do so is likely to result in urgent or acute needs not being met, potentially risking life. Any change resulting from such a decision should be proportionate to the circumstances in a particular Local Authority”.

Evidently, the intention is that business as usual should be maintained for as long as is reasonably possible.

What is the process for a Local Authority to decide easement provisions are required?

Once a Local Authority reaches a situation where the circumstances fall within the above description, the decision to operate the easement provisions must be taken locally and agreed by the Director of Adult Social Services in conjunction with the Principal Social Worker.

The Health & Wellbeing Board should be kept informed and a discussion should take place with local NHS bodies.

All of this should be documented in a record of the decision which references the evidence that was taken into account.

The decision should be communicated to all providers, service users and carers.

What factors should be taken into account when a Local Authority decides to instigate the easement provisions?

The Guidance suggests the written record of the decision should include reference to the following factors:

• The nature of the changes to demand or the workforce.
• The steps that have been taken to mitigate against the need for this to happen.
• The expected impact of the measures taken.
• How the changes will help to avoid breaches of human rights at a population level.
• The individuals involved in the decision-making process.
• The points at which this decision will be reviewed again.

Once a Local Authority has taken the decision to operate under the easement provisions, what are the key changes to existing statutory duties under the Care Act 2014?

Changes include, but are not limited to:

• The duty to meet a person’s assessed needs, where a needs assessment has determined that an adult meets the eligibility criteria, is suspended.
• Instead, the Local Authority will have a power, not a duty, to meet needs unless a failure to meet care and support needs would breach the individual’s human rights.
• The duty to complete a full assessment of a person’s eligible care needs and to prepare a care and support plan is also suspended.
• Instead, the Guidance suggests that Local Authorities will be expected to “make an assessment of needs”, involving the individual and family members, in order to inform care planning with providers. A professional record of this should be kept. It seems this light-touch assessment is unlikely to assess a person’s needs in the level of detail that would ordinarily be expected. It is questionable, however, whether this watered down version is really going to save the time required to help prioritise meeting needs.
• Needs assessments and decisions as to what care and support an individual may require are expected to be made in a proportionate manner, based on evidence, with reference to the Ethical Framework for Adult Social Care. As the Ethical Framework sets out broad-brush general principles Local Authorities are likely to have a huge amount of discretion in any decision-making if acting under the easement provisions.
• Local Authorities are not required to charge for care provided during the emergency period. If they wish to charge, they are required to complete a financial assessment in accordance with existing principles before charges are raised.
• A Local Authority may still complete a ‘light touch assessment’ if it chooses. This means that, in some circumstances, a Local Authority may choose to treat a person as if a financial assessment had been carried out. In order to do so, the local authority must be satisfied on the basis of evidence provided by the person that they can afford, and will continue to be able to afford, any charges due. The Local Authority may take this approach where a service user clearly has assets above the financial threshold. The Guidance suggests that Local Authorities may wish to conduct more of these types of financial assessment where doing so helps the prioritisation of timely care and support and mitigates capacity pressures. It also proposes that, where appropriate/helpful, Local Authorities can use Department of Work and Pensions data as a quick standard assessment and follow up at a later date to look into private pensions, capital or other finances.
• Where a Local Authority does not conduct a financial assessment at the outset commencement of a package, it may do so at any time during the emergency period or within a reasonable time after the emergency period. Where a financial assessment is undertaken later, there a power to charge retrospectively for the services provided, however at this stage there is very little guidance as to how retrospective charging is going to operate in practice. For example whether a person’s financial resources are likely to be assessed as they stood at the time care was commissioned, or as of the date of the assessment. Local Authorities should make people aware at the commencement of the package that they may be assessed retrospectively and may need to pay back the cost of their care, they should also help people understand what those costs may be.
• In the context of Hospital Discharge, the usual rules relating to a choice of accommodation will not apply.
• Reviews are suspended. If, however, a Local Authority decides to embark on a review of an existing package, they must involve the individual, family members, and an advocate, and follow a process before a decision is made.
• Duties relating to transition are suspended.

In addition, there are changes to NHS funded care and the Hospital Discharge process.

The Ethical Framework for Adult Social Care

The recently published framework identifies the following important values and principles:

• Respect.
• Reasonableness.
• Minimising harm.
• Inclusiveness.
• Accountability.
• Flexibility.
• Proportionality.
• Community.

The guidance suggests that decision-making should be guided by these values and principles.

How will a Local Authority decide if a failure to meet care and support needs would breach a person’s human rights?

To determine this, Local Authorities should have regard to the European Convention on Human Rights.

Convention rights which are likely to be of relevance include: Article 2 (the right to life), Article 3 (right to freedom from inhumane and degrading treatment) and Article 8 (right to private and family life).

There is no guidance within the Coronavirus Act 2020, the Regulations or the new Guidance as to how social workers on the front line are expected to make an assessment of whether a failure to meet need is likely to breach human rights.

In theory, these rights could be breached by failing to provide services such as adequate toileting facilities, access to fresh food, water and hearting, or access to assistance with personal care.

To demonstrate this would require evidence in the form of an assessment which shows what a person needs to keep them safe, and what the reasonably foreseeable consequences, in particular on their physical health and psychological well-being, of not providing or withdrawing support may be.

Whilst existing case law suggests the threshold for establishing a breach of human rights is quite high, the government-imposed lockdown restricting liberty may impact how the courts are likely to interpret breaches of human rights in this context.

As the law relating to human rights is complex it is difficult to see how social workers and Local Authorities will have the knowledge required to make complicated judgements of this nature. With no real guidance, it is difficult to see how this caveat is going to safeguard those seeking to access social care in a meaningful way.

If an assessment determines care and support should be provided when a Local Authority is acting under the easement provisions, how long is the decision binding for?

Until such time as the Local Authority believes it is no longer necessary to meet those needs, at which time alternative arrangements will need to be agreed.

It is essential, therefore, to stress that any decisions taken by a Local Authority operating under the easement provisions may not be binding in the future.

Can the Local Authority’s decision following the assessment be challenged?

Yes. Local Authorities are required to ensure that there is a clear and transparent pathway for people with care and support needs, carers and providers to quickly raise concerns should they believe either the decision to meet or not meet needs, or the care package, is in breach of the European Convention on Human Rights. This will, again, be a local procedure and so it will be a case of checking with the responsible Local Authority.

At the very least, complaints procedures can be utilised.

It is worth pointing out that any decision taken to invoke the easement provisions locally, to meet or not meet a person’s needs, or to review and make changes to any existing packages of care, must be made in accordance with general public law duties. These are not suspended and so any decision taken under the Act must comply with human rights obligations, and must be lawful, rational and fair.

The duty to promote an individual’s well-being remains effective. Indeed the Guidance makes it clear that “care planning should be person-led, person-centred and proportionate to the complexity of the individual need”.

Obligations under the Equality Act 2020 to make reasonable adjustments, prevent direct or indirect discrimination against protected characteristics, and to comply with the public sector equality duty also remain in force.

Will care providers be provided with information to allow them to make a decision as to whether they can meet a person’s care needs?

Yes. The Guidance makes it clear that sufficient information should be provided to potential providers to allow them to make an informed decision as to whether to they can meet a person’s care needs and if they agree, to enable a care plan to be developed in consultation with the person and their family.

It is not the case that during the emergency period providers can be expected or forced to take anyone referred to them.

Is the individual, their family or representative entitled to a copy of the assessment?

Yes. There is a clear expectation that this information should be shared with individuals and families.

The Guidance suggests that any assessment of social care needs should be sufficient to evidence their decision, demonstrate their professional judgement and apply the Ethical Framework for Adult Social Care.

Is there a criteria in the Guidance for how Local Authorities are expected to prioritise needs?

No. There is no specific criteria or decision-making tool. Instead the Guidance suggests that Local Authorities should use the Ethical Framework for Adult Social Care to exercise professional judgement and agree locally agreed processes.

The Guidance does, however, suggest that Local Authorities may want to ‘RAG’ rate their packages and have them split between high, moderate and low. Under this model, in the first instance Local Authorities would prioritise meeting the needs of those care packages which are rated as high and moderate.

Safeguarding

There have been no changed to the duty of Local Authorities in relation to safeguarding. In particular, Section 42 of the Care Act remains in force. The Guidance states “It is vital that Local Authorities continue to offer the same level of safeguarding oversight and application of Section 42. However, it is also important that safeguarding teams are proportionate in their responses and mindful of the pressure social care providers are likely to be under”.

The Government also recognises that safeguarding concerns and referrals may increase during the Covid-19 outbreak, with more people receiving support and support needs changing, which may prompt concerns. The Guidance confirms that safeguarding alerts should continue to be made in the usual way and that Local Authorities, social care providers, the health voluntary sector and our communities must continue work to prevent and reduce the risk of harm to people with care and support needs, including those affected by Covid-19.

The Guidance emphasises that the immediate safety of the adult at risk and their carers must always be prioritised but there may be a need to prioritise responses to safeguarding concerns. The Guidance states that Principal Social Workers must work with their safeguarding leads to review any local policies or procedures that may be unduly time consuming or place an undue burden on care providers during this time. For example, it suggests that Local Authorities may make changes to those local processes and timescales that are not mandated by legislation. In addition, Principal Social Workers should reassure themselves that Section 42 decision making is proportionate and that safeguarding teams are actively communicating with partners. Any such decisions will need to be agreed by the Director of Adult Social Services.

The Guidance also reminds providers that they must ensure that staff, including volunteers, are trained in recognising the signs and symptoms of abuse or neglect, how to respond, and where to go for advice and assistance.

Conclusion

In some ways, the Regulations and Guidance are helpful because they clarify that Local Authorities are expected to continue to operate on a ‘business as usual’ basis until the workforce and resources are significantly depleted. There is also a process to be followed before the so-called ‘easement provisions’ can be initiated. It is also clear that even once the ‘easement provisions’ have been triggered, the expectation is that Local Authorities should as far is as reasonably possible try to abide by existing Care Act 2014 duties.

The problem, however, is the Guidance leaves many questions unanswered. Individuals, families, and care providers are left at the mercy of local decision-making and local policies which it seems are to be devised on the basis of broad-brush general principles. For anyone with concerns, seek legal advice.

If you have any questions about this article, or need any advice, please contact our community care solicitors or healthcare solicitors today. Get in touch by emailing online.enquiries@la-law.com or calling 023 8082 7483.