As of 31 March 2020, the Coronavirus Act (section 15 and Schedule 12) removes the duty on local authorities to conduct needs assessments of adults, children and carers, and the duty to meet their eligible needs.
As a result, a local authority’s obligation to meet care needs now exists only where failing to do so would lead to a breach of the person’s human rights (these are primarily likely to be the rights to life, to be free from inhuman or degrading treatment, and to a private and family life). It is a fairly high hurdle to establish such a breach.
The main driver behind the amendments is a desire to reduce operational burden and ensure that local authorities can focus their already stretched resources on providing care to the most vulnerable, which will - in turn - support the health service’s response to the pandemic.
Somewhat at odds with the Act but purporting to support its implementation is the Department of Health and Social Care’s guidance, Care Act easements: guidance for local authorities. This statutory guidance states that “The easements took legal effect on 31 March 2020, but should only be exercised by local authorities where this is essential in order to maintain the highest possible level of services…” and provides that local authorities “…should comply with the pre-amendment Care Act provisions and related Care and Support Guidance for as long and as far as possible.” In other words, although the duties to assess and meet needs have formally been removed by the Coronavirus Act (although local authorities remain empowered to do these things if they choose), the guidance emphasises that local authorities should carry on with business as usual, until this becomes untenable.
Moreover, even the Act does not countenance a wholesale dismantling of the care system; other important obligations remain in place during the pandemic crisis period, such as:
- Safeguarding: further guidance is included at Annex D of the guidance.
- Mental Capacity Act 2005 duties relating to Deprivation of Liberty Safeguards: guidance on the operation of DoLS will be published separately.
- Equality Act 2010 duties and the Public Sector Equality Duty.
How does this guidance fit with the other frameworks and advice issued?
Local authorities are expected to have regard to the Ethical Framework for Adult Social Care published on 19 March. This provides local authorities with a structure against which to measure their decisions, and reinforcing the needs and wellbeing of individuals should be central to the decision-making.
The guidance is to be read in tandem with the COVID-19 Hospital discharge service requirements, which makes clear that local authorities do not have to undertake financial and eligibility assessments for people who are being discharged as part of the enhanced hospital discharge service where the Government is funding the cost of new or extended out-of-hospital health and social care support packages for people being discharged from hospital, or who would otherwise be admitted for a limited time, to reduce pressure on acute services. Readers may already have seen our blog noting that the Coronavirus Act allows CCGs to defer NHS continuing healthcare assessments of individuals on the hospital discharge pathway and in community settings until the end of the pandemic. All of these provisions are designed to work together to reduce pressures, speed up discharge and, ultimately, free up 15,000 beds.
So, when should a local authority take a decision to begin exercising the Care Act easements?
The guidance is clear that prioritisation should only be triggered when “… the workforce is significantly depleted, or demand on social care increased, to the extent that it is no longer reasonably practicable for it to comply with its Care Act duties…and… to continue to try to do so is likely to result in urgent or acute needs not being met, potentially risking life.”
Any decision to operate the easements should be taken locally and should be fully informed by discussion with the local CCG leadership. A record of the decision, together with evidence that was taken into account should be kept – and communicated to all providers, service users and carers. The Department must also be notified and advised of the detailed rationale for the decision.
All told, it is clear that the focus should be on healthcare commissioners, providers and local authorities utilising existing relationships to consider how best they can work together on the pandemic at a local level. Never before in recent times has the need for co-operation and collaboration been so evident – or so critical.
If you have any questions around what we have discussed and its impact on your health organisation, do get in touch with one of our team.