Securing support to meet the social care needs of children, young people and adults is often challenging. The government’s response to the Coronavirus pandemic inevitably heightens the difficulties many face accessing social care services from over-stretched and under-resourced Local Authorities. As a consequence of COVID-19, Parliament has passed the Coronavirus Act 2020 and the Coronavirus Regulations (Commencement No 2) 2020 (Regulations) which profoundly change the way individuals, patients, families, and representatives are to access vital statutory services during the Coronavirus emergency period.
The Coronavirus (Commencement No 2) Regulations 2020 (Regulations) and the Care Act Easements Guidance for Local Authorities (Guidance) 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.
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.
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”.
There is a process 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.
The Care Act 2014 places 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 and is ordinarily resident in the Local Authority’s area. Care and support is means-tested. A Local Authority is required to complete a financial assessment, even if it is light touch financial assessment, before charges can be raised.
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.
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 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.
- 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.
- 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 financial assessment’ if it chooses.
- Where a Local Authority does not conduct a financial assessment at the outset or 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 at a later date, there is a power to charge retrospectively for services provided.
- 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 due 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.
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, Regulations and Guidance on accessing Local Authority & NHS Funded Care for adults.
Has there been any guidance published for adults receiving social care support via a direct payment?
No. It is hoped the Department for Health and Social Care will publish specific guidance for how adults who receive social care support via a direct payment are to manage during the Coronavirus pandemic shortly.
Are there any easy-read or accessible versions of the Government COVID-19 related guidance?
To our knowledge, there are no easy-read or more accessible versions of the COVID-19 guidance documents issued on the .gov.uk website.
Below are links to some useful easy-read or accessible resources disability rights organisations and charities have helpfully put together.
Sign Health is providing freely accessible Coronavirus Information using British Sign Language (BSL). The content is updated daily.
To access Sign Health’s BSL Coronavirus information click here.
Learning Disability England has a wealth of easy-read resources and information, available by clicking here. The ‘Resources that can help’ page has a host of links to other multi-media resources, such as the Photosymbols website.
Does the Coronavirus Act 2020 change access to children’s social care during the emergency period?
No. The Coronavirus Act 2020 and associated Regulations do not contain any provisions that alter Local Authorities statutory duties to meet children’s social care needs during the Coronavirus emergency period.
The following information sheet, available by clicking here, explains the legal framework, which governs children’s social care provision in detail.
Children’s Social Care Guidance has been published, however, given there are no provisions within the new legislation or regulations which alter Local Authorities statutory duties to meet children’s social care needs, the legal basis for this guidance is questionable.
According to this guidance, if Local Authorities are struggling to meet children’s social care needs during the Coronavirus pandemic, decisions not to meet need or to prioritise meeting one child or family’s needs over another, should be documented in a risk assessment.
What if a child or young person has special educational needs and requires provision documented in an education, health and social care plan?
The proposed changes are not yet effective until such time as the Secretary of State issues a Notice indicating the changes are necessary and proportionate. More information relating to this point can be found by clicking here to access our SEND Law resources, or alternatively by clicking here to access the recent webinar James Pantling-Skeet prepared for the benefit of Dorset Children’s Foundation.
How can our community care solicitors assist with local authority provision/care & support from social services?
At Lester Aldridge, our specialist health and social care solicitors provide advice and support to individuals and/or their representatives to help them access social care services from a local authority, in a way that meets their needs and preferences.
Examples of the types of social care law issues we can assist with include:
- Advising on the availability of services to help meet the social care needs of children and adults , both under the usual Care Act 2014 and children’s legal framework provisions, and for any Local Authority operating under the ‘easement’ provisions.
- Reviewing refusals by local authorities to provide care and support, to determine if and how decisions can be challenged.
- Considering decisions made by a Local Authority to activate the Care Act 2014 easement provisions and whether the decision is lawful both in terms of whether the criteria has been met, and whether due process has been followed. Advising on how to fund care and support if you do not satisfy the means test for Local Authority funded care.
- Advising on agreeing to care and support contracts for care put in place because of the simplified Hospital Discharge process. In addition, disputes relating to care and support contracts with reference to the CMA’s guidance.
- Advising on challenging the use of annual reviews to arbitrarily cut care packages or apply stealth cuts to packages.
- Advising on how different care models can be funded and organised, such as supported living, shared lives schemes or residential care. This includes dealing with issues relating to direct payments.
- Obtaining agreement to and negotiating packages of social care. In addition, considering how to maximise choice of accommodation and care packages in the context of the simplified Hospital Discharge process.
- Dealing with the issue of retrospectively charging for care provided as a result of ‘Discharge Today’.
- Reviewing whether a personal budget is sufficient to meet need and challenging inadequate personal budgets.
- Support to secure funded adaptations to ensure a property is safe and suitable to meet needs through a Disabled Facilities Grant.
It is worth pointing out that any decision taken by a Local Authority, must be made in compliance with the relevant statutory duties, but also in accordance with general public law duties. These are not suspended because of Coronavirus and so any decision taken must comply with human rights obligations, and must be lawful, rational and fair.
Obligations under the Equality Act 2010 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.
Click on the links on the right-hand side under the heading ‘related files’ to view more information, download or print our freely accessible social care law information sheets.
How can my social care case be funded?
For our community care work involving local authority provision/care & support from social services, there are a variety of funding options.