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The Coronavirus Act 2020 and Adult Social Care

Introduction

 

This note is intended to assist local authorities when considering their Care Act 2014 duties following the Coronavirus Act 2020 (“The Act”) coming into force on 3 March 2020[1]. The Secretary of state issued Guidance on 01 April 2020. The Act contains provision for “easements” of Care Act 2014 duties during the emergency.

 

The guidance contains useful tables setting out how and when these easements are to be applied. The starting point is that local authorities should continue as “business as usual” for as long as possible during the crisis. This is referred to as “Stage “1” in the guidance.

 

Stage 2 involves “applying flexibilities under the pre-amendment Care Act”. At this stage, the local authority is not operating under the easements provided for by the Act, but rather should do everything possible to continue to comply with the Care Act 2014 notwithstanding the fact authorities may need, in the short term, to change, delay or cancel service types.

 

When can a local authority rely on the Act?

 

Before the easements are applied, the Director of Adult Social Care must be satisfied that "…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 that "…to continue to try to do so is likely to result in urgent or acute needs not being met, potentially risking life".

Once so satisfied, the local authority may activate the easements. However, the guidance makes it clear that doing so does not permit a wholesale disregard for the Care Act duties and that every decision to rely on the provisions in The Act should follow consideration of the impact of the decision on people who ordinarily use services and the impact of the decision on families and carers.

 

The guidance requires local authorities to observe the Ethical Framework for Adult Social Care.  The Framework contains detailed ethical guidance for social care practitioners, under the following headings:

 

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

 

What is the effect of the easements?

 

Once the local authority has made a decision to activate the Care Act easements and has complied with the steps required by the guidance then the following changes take effect.

 

The local authority does not have to comply with the:

 

Duty to asses needs;

Duty to assess the needs of a carer;

Duty to give written records of an assessment; and

Duty to give effect to a preferred place of accommodation.

 

 

The duty to carry out financial assessments also falls away, however if a local authority has not carried out a financial assessment, then it may not charge for its services.

 

Finally, it does not have to provide services to meet assessed needs unless a failure to do so would result in a breach of the human rights of the service user or their carer.

 

Local authorities should note that the safeguarding duty under s.42 of the Care Act 2014 has not been suspended. This is of particular significance given the expected increase in domestic violence and abuse during the “lockdown” period.

 

When will a refusal to meet assessed needs breach a service user’s human rights?

 

 Local authority social care lawyers and social workers shall be familiar with human rights assessments in relation to those with no recourse to public funds. It is likely that many authorities shall rely on the existing expertise of NRPF social care teams to undertake assessments of whether it would be a breach of a service user or carer’s Convention Rights to not meet assessed needs.

 

In all cases where an authority intends to rely on the easements to not maeet assessed needs, it shall be necessary to undertake a human rights assessment taking account of all the circumstances.  I shall share a full note on the relevant human rights considerations and case law later this week.

 

Joshua Hitchens

Disclaimer: This document is based upon the law as it stands as at April 2020; it is intended as a general guide to the relevant legislation and is not intended to be legal advice or a substitute for such advice. No liability is accepted for any adverse consequences of reliance upon it.

 

 

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