With a view to reducing the timeframe to providing services to people in need care and support during the COVID-19 pandemic, the Government introduced statutory provisions under the Coronavirus Act 2020 (Coronavirus Act) that temporarily modify certain powers and duties placed on local authorities under the Care Act 2014 (Care Act) in relation to the provision of social and care services in their area.
The statutory relaxations (known as the Care Act easements, ‘easements’) take effect by amending certain powers and duties applicable to local authorities under the Care Act. The easements include:
- In place of the statutory duty to meet care and support needs of people in its area in need of care and support, local authorities have discretion as to whether they may provide those care and support needs. The exception to this being a local authority must provide services where it considers there may be a breach to the person’s convention rights if it did not.
- No requirement to carry out detailed assessments of a relevant person’s care and support needs in accordance with the pre-amendment Care Act duties.
- No requirement to undertake a financial assessment of a person in need of care and support. Concurrently, the local authority will not be able to charge the relevant person for the care they receive until such time as the financial assessment has been carried out.
- No obligation to consider the relevant person’s preferred accommodation arrangements.
- No requirement to prepare or review care and support plans. The local authority will still be required carry a proportionate assessment of the relevant person’s needs and provide sufficient information to a prospective care provider to allow them to make an informed decision as to whether to accept a referral.
Reliance on the easements should be viewed as a last resort. To date, the vast majority of local authorities have been able to continue to operate throughout the COVID-19 pandemic within the flexibilities under the pre- amendment Care Act provisions. For a local authority to implement the easements conditions in its area must be such that:
- the workforce engaged in the delivery of social care is significantly depleted; or
- demand on social care has increased to an extent that it is no longer reasonably practicable for the local authority to comply with its pre-amendment Care Act duties, and were the local authority to continue to try to comply with its pre-amendment Care Act duties there is likely to result in urgent or acute needs not being met, potentially risking life.
Until such time as the above threshold conditions are met local authorities remain subject to the Care Act duties as they were prior to the Coronavirus Act coming into force on 31 March 2020. A number of important safeguards which the local authority must continue to observe remain, including:
- Care Act duties in respect of promoting wellbeing and safeguarding are unchanged;
- duties in respect of the Mental Capacity Act 2005 (MCA) and the Depravation of Liberty Safeguards (DoLS) continue to apply (Emergency guidance in relation to the MCA and DOLS is available here); and
- duties under the Equality Act 2010, including the public sector equality duty and duty to make reasonable adjustments, continue apply.
How will Care Providers know when the easements have been implemented?
Local authorities should be transparent about their actions in respect of the easements and keep Care Providers well informed.
Implementing the easements should be made by agreement between the Director of Adult Social Services and the Principal Social Worker within the local authority. Before making this decision input from the local authority social care service should be considered. Health and Wellbeing Boards, Local NHS CCG leaders and other stakeholders (which we suggest should include local Care Providers) should be informed of the decision and progress.
Implications for Care Provider
Care Providers should bear in mind that notwithstanding a local authority operating under the easements, this will not alleviate any duty or obligation a Care Provider owes to services users, staff or regulators. Local authorities, and Care Providers, must continue to respect the principles of personalisation using the values-based and co-production approach embodied in the pre-amendment Care Act. Existing guidance applicable to the Care Act should be followed as far as possible. In addition local authorities should have regard to guidance issued by the Department of Health and Social Care and the principles outlined in the Ethical Framework for Adult Social Care.
Where a Care Provider is aware a local authority they work with is, or plans to, implement the easements it should take steps to ensure that it has sufficient access to additional resources to enable continued observance of all its obligations. As the ‘normal’ assessments and procedures may not be followed under the easements it is anticipated significant uncertainties around the suitability, funding and care requirements of new or returning residents may exist. This has implications not only on the quality of the services Care Providers deliver, but can have consequences for the viability of the service itself.
When approached by local authorities operating under the easements Care Providers should insist sufficient information is provided by the local authority to enable them to make informed decisions with regard to accepting new or temporary residents or altering existing care arrangements or services.
In relation to assessments, reviews or care and support plans not carried out or completed under the easements, these must be done once the easements are ceased by the local authority. Local authorities should keep records of the actions they do, or don’t, take in respect of those in need of care and support. We suggest Care Providers keep a close record of any actions taken by a local authority under the easements to ensure that when a ‘normal’ process is restored these can be carried out as quickly and efficiently as possible. Care Provider are able to continue to carry out care planning etc. where the local authority does not do so.
Implementing the easements also allows local authorities to prioritise services (and funding). Consequently, a non-priority service may be at risk of having local authority resources re-allocated.
How long will the easements be available to local authorities?
There is no statutory time limit or expiry to the majority of the easements. However, local authorities should only apply the easements during the period when circumstances are such that the threshold conditions are met. Local authority decision makers should review conditions regularly. At the point where the thresholds are no longer met local authorities should revert back to the pre-amendment Care Act powers and duties.
For more information, please contact Christian Barnes, Solicitor in our Banking, Governance & Corporate team.
