Securing support to meet the social care needs of children, young people and adults is often challenging.
As a consequence of the Coronavirus pandemic, Parliament passed the Coronavirus Act 2020 and the Coronavirus Regulations (Commencement No 2) 2020 (“the Regulations”).
At first glance, the new legislation profoundly changes the way individuals, patients, families and representatives are to access vital statutory services during the Coronavirus emergency period.
The subsequent decisions, however, by a number of Local Authorities to deactivate the easement provisions suggests that perhaps Baroness Grey-Thompson’s concern that the Coronavirus Act 2020 amounted to the “the complete removal of social care responsibilities” may not be the case.
It is the Regulations and the Care Act Easements Guidance for Local Authorities (“the Guidance”) which give effect to the Coronavirus Act 2020 changes in relation to the Care Act 2014 obligations of Local Authorities.
The provisions will remain in force until such time as the Secretary of State decides they are no longer necessary.
For a detailed overview of the changes, use the links below to access our recent articles which explain the implications of the Coronavirus Act 2020 on accessing Local Authority & NHS Funded care for Adults.
Are all the pre-amended 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.
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 being met, potentially risking life. Any change resulting from such a decision should be proportionate to the circumstances in a particular Local Authority”.
There is a process that a Local Authority must follow to decide that the local situation meets the above criteria, and that it is proportionate to activate the so-called easement provisions in response.
If a Local Authority has not followed the process to activate the easement provisions, what happens?
It should be business as usual for as long as is reasonably practicable. Unless a Local Authority can demonstrate with reference to evidence that the local situation meets the threshold or criteria set out in the Guidance, and has followed the specified process to activate the easement provisions, the usual Care Act 2014 statutory duties apply.
For more information regarding securing care and support from a Local Authority for Adults, click here to access our information sheet.
The means-testing rules and financial assessments are explained in the information sheet which is available by clicking here.
How many Local Authorities have activated the Care Act 2014 Easements so far?
It is reported that at least seven Local Authorities are known to have triggered the so-called ‘easements’ so far. These include:
- Sunderland City Council.
- Warwickshire County Council.
- Staffordshire County Council.
- Birmingham City Council.
- Solihull Council.
- Derbyshire County Council.
- Coventry City Council.
Interestingly, according to the CQC, a number of these Local Authorities have effectively de-activated the easements and are now operating on the basis of usual Care Act 2014 statutory obligations.
As of 1 June 2020, there are only two Local Authorities in England, namely Solihull and Derbyshire, which continue to operate on the basis of the easements.
The fact that five of the seven authorities which had triggered the easements have now reverted back to the status quo is quite surprising. Whilst residents in these areas may well be breathing a sigh of relief, it is worth noting that there is nothing within the legislation which prohibits a Local Authority from taking the decision to re-activate the easements again in the future if it can be demonstrated through evidence that the threshold has been met.
Interestingly, we have also heard of potential judicial review challenge against Derbyshire on the basis that it has allegedly failed to evidence how it has complied with the Guidance in activating the easement provisions. The potential claim remains in the early stages but it will be interesting to see whether this results in any changes in Derbyshire’s approach to the easements.
What happens if I am a resident in a Local Authority which has de-activated Care Act 2014 easements?
The Local Authority should be operating on the basis of usual Care Act 2014 statutory obligations, meaning the Local Authority will have a duty, as opposed to a power, to meet an adult’s needs if the adult satisfies the eligibility criteria.
Have you had experience of receiving social care from a Local Authority acting under easement?
If you, or a loved one, has experience of accessing social care from a Local Authority operating under easement, please do get in touch. Our Community Care and Healthcare Solicitors would be interested to hear about your experiences. Get in touch today by email at email@example.com or by telephone on 02380 82743.