FAQs: Care and Support Decisions and the Coronavirus Crisis

This article was updated on 26 February 2021. 

1. Your client has autism and is very unsettled by changes to his routine. Can he go out more than once a day?
2. Can you insist on a change to your client’s Care and Support Plan as evidence that he needs to go out three times each day?
3. Social Services say that they do not need to consult your client, his carers or you as the Professional Deputy about changes to the Care Plan – is this true?
4. Do Social Services have a duty to assess your client’s social care needs and provide care and support?
5. Your client has a good existing care and support package. Can Social Services cut this support?
6. If Social Services provide your client with support during the Coronavirus crisis, and do not undertake a financial assessment, can they demand payment later?
7. Which Local Authority Social Services departments have triggered the Care Act Easements?
8. Can you insist on a temperature check for care workers before they come in to your home?

Your client has autism and is very unsettled by changes to his routine. Can he go out more than once a day?

Yes, at the start of the first lockdown, the Government recognised that some people with specific health conditions may need to leave the house two or three times each day to maintain their health, including if necessary travelling away from the immediate home area. A decision to leave the house more often than once a day would ideally be in line with a care plan agreed with a medical professional. It may be difficult to find a medical or care professional with time to amend an existing care plan during the pandemic period.

Can you insist on a change to your client’s Care and Support Plan as evidence that he needs to go out three times each day?

You can seek a formal review of your client’s Care and Support Plan. If you are confident that there is evidence from care records and custom and practice of your client’s need to go out more than once daily, then a formal review should not really be necessary. If your client or his carers encounter difficulty with the police or within the community, they may feel more confident if backed up by a formal review. If the Local Authority triggers the Care Act Easements, then their duty to review and change a Care and Support Plan will be downgraded to a power. You should argue that it is reasonable for them to exercise this power under s27 (2) & (3) CA 2014 and cite the fundamental wellbeing principle.

Social Services say that they do not need to consult your client, his carers or you as the Professional Deputy about changes to the Care Plan – is this true?

No. The duty to involve the adult with care and support needs, their carer or advocate remains in force, despite other emergency changes to the Care Act.

Do Social Services have a duty to assess your client’s social care needs and provide care and support?

If the Care Act easements are triggered, Social Services’ duties to assess and review a person’s care and support needs, to carry out care planning and to meet eligible needs will be suspended. In these circumstances, Social Services will only have a duty to meet a person’s need for care and support where the failure to do so would result in a breach of the person’s human rights.

If there is no potential human rights breach, Social Services can use their discretion to provide care and support, but they are no longer obliged to do so. This sets the eligibility threshold for care and support at a much higher level which will be difficult to reach. Existing case law prior to the Coronavirus crisis is clear that a failure to assess or meet needs will only result in a human rights breach in very limited circumstances.

At present, there are no Local Authorities that have triggered the easements and therefore all Social Services’ have duty to assess and review a care and support package in accordance with the Care Act.

Your client has a good existing care and support package. Can Social Services cut this support?

This is possible if a Local Authority triggers the Care Act easements as the emergency measures have a retrospective reach, so they don’t just apply to people with new care and support needs. At present, no Local Authority is currently working under the easements and therefore full Care Act duties apply.

The Care Act Easements guidance for local authorities is clear that the emergency provisions should only be triggered 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. Any change resulting from such a decision should be proportionate to the circumstances in a particular Local Authority”. Local Authorities are encouraged “to do everything they can to continue meeting their existing duties prior to the Coronavirus Act provisions coming into force”.

An attempt to reduce or limit the amount of care provided would be open to challenge on public law and human rights grounds. It is important to note that the Care Act wellbeing principle has not been suspended and can be used when challenging Social Services.

If Social Services provide your client with support during the Coronavirus crisis, and do not undertake a financial assessment, can they demand payment later?

Yes. The Local Authority’s duties to undertake a financial assessment can be suspended under the Care Act easements. If this happens, they cannot charge you without completing a financial assessment. However, they can decide to retrospectively assess and charge, at a later date, for the care received. This applies during the crisis period, subject to giving reasonable information in advance about assessment and charging.

Which Local Authority Social Services departments have triggered the Care Act Easements?

The Department of Health and Social Care is not operating a public register of Councils who trigger the Care Act easement, but the Care Quality Commission is doing so. No Local Authority has triggered the easements since June 2020

Can you insist on a temperature check for care workers before they come in to your home?

In short, whilst it might be good from a “peace of mind” point of view; it is probably not worth the hassle.

A body temperature reading is deemed to be a “special category” data under GDPR. Processing of special category data is only lawful in limited circumstances. Whilst you may not think you are “processing” the data, if, for example, a record is made of the care worker’s temperature, or as a result of their temperature being taken a consequential action occurs which itself produces a record (such as being refused entry to the home), then this may constitute “processing of special category data” and specific consent to this would be required.

For expert advice on Care and Support Decisions and the Coronavirus crisis, contact our specialist Community Care Law Team today on 01273 609911, or email info@ms-solicitors.co.uk.