In the interests of prioritising scarce public resources, drastic powers were introduced in the Coronavirus Act 2020 (the Act) in respect of key duties under the Care Act 2014, the legislation which sets out local authorities’ duties in relation to assessing people’s needs and eligibility for publicly funded care and support.

The Act’s provisions in relation to adult social care and support came into force on 31st March 2020 by way of the Coronavirus Act 2020 (Commencement No. 2) Regulations 2020, with government guidance issued on the same day.

The Act modifies provisions in the Care Act so that the majority of local authority duties are suspended for the emergency period, through what the guidance calls “easements”, including:

  • Assessing needs – suspension of the obligation to conduct assessment of needs of adults, children and carers
  • Determining eligibility – suspension of duties in relation to determining eligibility for care and support
  • Meeting needs – weakening of the duty to meet adults’ and carers’ needs for care and support so that this is only required where it would otherwise result in a breach of rights under the European Convention on Human Rights
  • Care and support plans – suspension of the requirement to prepare or review care and support plans
  • Financial assessments – suspension of the obligation to conduct financial assessments (although local authorities will not be able to charge for care without having done an assessment, but this charge can be applied retrospectively after the end of the emergency period)
  • Choice of accommodation – suspension of the duty to give effect to an adult’s preferred place of accommodation.

Certain key duties are not modified by the Act, however, including the general duty to promote the individual’s wellbeing and duties relating to safeguarding adults at risk.

Crucially, a local authority should only apply one of the “easements” where it has decided 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” and that “to continue to try to do so is likely to result in urgent or acute needs not being met, potentially risking life” (see section 6 of the guidance). The decision-making process in the guidance makes clear that a staged approach must be applied, and appropriate consultation engaged in. Moreover, any decision taken to prioritise or reduce support must be reviewed every two weeks and a full service must be restored “as soon as is reasonably possible”.

Local authorities and those acting on their behalf must bear in mind that, even when such duties are suspended, some kind of assessment must still take place in order to properly assess an individual’s needs and whether failing to provide care or support would amount to a breach of human rights, even if this assessment might not reach the levels normally required under the Care Act. This question will not be easy to assess and will require consideration of all the circumstances at hand, including individual wellbeing, overall public good and available resources. Local authorities would also be wise to bear in mind that the State’s duty towards individuals who have had their liberty restricted is even greater, which will likely be a common, if not constant, factor in the current climate. As such, the threshold of what will amount to a breach of human rights may be lower.

When making decisions, local authorities and care providers should apply the Ethical Framework for Adult Social Care, which consists of 8 values and principles (such as respect, reasonableness, proportionality and minimising harm). Again, however, practical application of the framework will not be straightforward and tension between the different principles is inevitable.

Local authorities and care providers should seek to familiarise themselves with the government guidance and ethical framework as quickly as possible. They need to ensure that their systems and operating procedures reflect these materials in anticipation of when the situation may worsen, noting that the easements will only apply when it is no longer possible for them to carry out their pre-amendment Care Act duties in full.

In the event that a decision is made to suspend Care Act duties, local authorities must be careful to document the decision and their reasoning properly, including the evidence taken into account. The decision must then be communicated to all providers, service users and carers (as well as reported to the Department of Health and Social Care). In addition, it will be crucial to keep such decisions under constant review as the assessment of what is “no longer reasonably practicable” may credibly change from week to week.

If you need any further advice do contact the Bates Wells lawyer you work with or more generally, Melanie Carter [email protected] or Tessa Furnivall [email protected].