What does the Coronavirus Act 2020 mean for Social Care?
Due to the pandemic gripping most of the world, the British Government have drafted the emergency Coronavirus Act 2020, which Parliament passed in the last week of March 2020.
Section 15 and Schedule 12 of this Act effectively suspend Social Services’ duties to assess the needs of disabled adults and to provide services, or funding, to meet those needs.
On 31 March 2020, the Secretary of State for Health and Social Care brought the provisions in to force through a Commencement order.
He also published the Care Act “Easements” guidance for local authorities.
What happens now the Act has been implemented?
Although the guidance has a useful introductory narrative about the Government’s expectations that Social Services will continue to do as much as they can for people with care and support needs, the Coronavirus Act 2020 allows local authorities to suspend the following key provisions of the Care Act 2014 –
- s.9 duty to assess the individual’s needs;
- s.10 duty to assess a carer’s needs;
- s.13 duty to determine eligibility;
- s.17 duty to assess financial resources;
- ss.24-27 care planning duties;
- ss.37-38 duties relating to people moving areas; and
- Ss.58-64 duties concerning child carers.
What does this mean in practice?
This means that a Local Authority will be permitted to lawfully prioritise whose needs, and what type of needs it will meet, rather than being required to meet all eligible assessed need. There will be no duty to carry out assessments of individuals’ needs nor to review care plans.
Local Authority Social Services departments in England will now only have a duty to provide services to disabled adults, if the failure to do so, in the adult’s specific case, would be a breach of the European Convention on Human Rights (ECHR).
What problems will you face?
It will not be straightforward to establish that your client’s case is one where there will be a breach of ECHR if they are left with no care and support or inadequate support as the threshold is high.
Service users and their legal representatives across the country will be competing for limited resources, each submitting ECHR arguments in order to qualify for very basic social care support. As the Local Authority will have no duty to assess the adult’s needs, it may be hard to demonstrate that their failure to provide services will result in a breach of ECHR in your client’s case.
But Social Services should only take a decision to begin exercising the Care Act easements, “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 amendment by the Coronavirus Act) and where to continue to try to do so is likely to result in urgent or acute needs not being met, potentially risking life.”
This emergency legislation is extremely disappointing as many of our clients already experience difficulty in accessing adequate social care support. Councils are likely to protect their resources by asserting that only the most ‘exceptional cases’ of certain types of need will give rise to human rights breaches. It still isn’t clear who is expected to support those people who fail the threshold test.
If your clients or their carers are refused an assessment and /or services, or are having their existing care and support package cut, we can help.
Our Community Care law team have years of experience in challenging public law decisions and utilising EHCR arguments, which have been a vital part of our work since before the Care Act came in to effect in April 2015.
Please contact us on 01273 609911 or email us at info@ms-solicitors.co.uk
