Update 29 March 2020: This post relates to the Coronavirus Bill 2020. For more on the Coronavirus Act 2020, and when the below provisions come into force, see here.
The Coronavirus Bill was introduced to the House of Commons on Thursday 19 March and had its first reading on the same day. On Monday 23 March, the 322-page Bill will go through its second and, it is likely, third reading. It is expected to gain Royal Assent by Wednesday or Thursday this week (25 or 26 March).
The Act is set to expire two years after the date on which it is passed. This is subject to a power to alter the expiry date to make it earlier or up to six months later (clause 76). There is also a power vested in the Minister to suspend and revive the operation of any provision of the Act (clause 74).
The changes to adult social care contained in Schedule 11 of the Bill are serious and potentially have enormous implications in an already overstretched sector.
The Bill proposes, in short, to temporarily suspend most of the duties contained in the Care Act 2014 (CA 2014) during the crisis. As indicated above, this suspension of duties could last for up to two and a half years.
This post summarises some of the key changes proposed by the Bill, expanding on this Twitter thread by Jamie Burton just hours after the Bill was published.
Duty to assess
Currently, local authorities “must” assess any adult if it appears that s/he “may” have needs for care and support (s.9 CA 2014).
This is a low threshold and care and support can include any kind of help bar healthcare, housing and subsistence (which are the responsibility of the NHS, local authority housing departments and the DWP, respectively).
The Bill removes the duty to assess (Schedule 11, clause 2(1)(a)). For the duration of the Act, local authorities will no longer be obliged to determine if someone has needs for care and support. The consequences of this are profound. It is not always obvious that someone has needs or what they are, which is why they must be assessed. But assessment is just the beginning of the process.
Duty to meet needs
Currently, local authorities only have a duty to meet “eligible” needs (s.18 CA 2014). This is a very high threshold. The adult must, because of a physical or mental impairment or illness be “unable” to achieve at least two of 10 specified outcomes and there must be, or likely to be, a “significant impact” on their wellbeing as a result (s.13 CA 2014 and reg 2, Care and Support (Eligibility Criteria) Regulations 2015/313).
These are very serious needs - the outcomes include an inability to maintain a healthy diet, personal hygiene or a habitable home, or to stay safe in the home. They also include needs related to loneliness - an inability to maintain family or other personal relationships or to access the community, for example.
The CA 2014 also requires local authorities to support carers (such as family and friends) who provide care to people with needs (s.20 CA 2014). This is a critical component of the care system, without which the number of people who will need care from the local authority is likely to increase enormously.
Significantly, local authorities can and do charge for meeting these needs (although they cannot make a profit). Many private companies depend on local authority commissioned care to sustain their businesses. This is not a free service by any means.
Where a local authority is required to meet needs under s.18 or s.20 CA 2014, they also have a duty to prepare a care and support plan setting out the details of how the person’s needs will be met (ss.24-25 CA 2014). Care plans must be kept under review by local authorities, and revised if the person’s care and support needs have changed (s.27 CA 2014).
The Bill, once passed into law later this week, will terminate these core duties. The Bill is explicit in stating that local authorities will retain the power to carry out assessments of need as they consider appropriate to determine whether services should be provided to a person. They will also retain the power to meet a person’s needs under s.19 CA 2014 but they will no longer be required to meet needs under the CA 2014, or to prepare and review care and support plans. This is the case whether or not the duty pre-existed the coming into force of the Act and whether or not the person is making a financial contribution.
Exception to avoid a breach of human rights
The Bill does contain a replacement obligation on local authorities to meet needs for care and support if it “considers that it is necessary to meet those needs for the purpose of avoiding a breach of the person’s Convention rights” (Schedule 11, clause 4).
This offers very little, however, as there is no human right to social care or positive obligation under the European Convention on Human Rights (ECHR) to meet care needs.
According to the case law on ECHR breaches in the realm of social care, at the highest, Article 3 (the prohibition on inhuman and degrading treatment) requires that essential needs for food and shelter are met, but those forms of support fall outside of the meaning of care and support in any event. The threshold for establishing that a failure to provide care and support would result in a breach of Article 8 (the right to private and family life) is also extremely high under the current case law, although it may be that this becomes easier to establish as a result of these changes.
Not only does the Bill therefore set the bar far too high in requiring a human rights breach to trigger a local authority’s duty to provide care, but on a practical level, it will be impossible to give social workers and other front line staff sufficient training to make these kinds of critical human rights judgements overnight.
The result is that many adults with needs for care and support are likely to be left with no entitlement to care, at this time of crisis when their care needs may have increased.
The Bill does make provision for guidance to be issued, which should clarify how local authorities should use their power to meet needs for care and support, or determine when the human rights duty will be triggered, though how clear the guidance will be remains to be seen.
Transition to adulthood
The Coronavirus Bill will also suspend local authorities’ duties towards children with needs for care and support who are transitioning to adulthood (ss58-59; 60-61 and 63-64 CA 2014). This includes the duties (under s.17ZH Children Act 1989 and s.2A Chronically Sick and Disabled Persons Act 1970) to continue to provide children’s services to a young person with needs for care and support after they have turned 18 if their adult care package isn’t ready (Schedule 11, clause 15).
The ‘cliff edge’ for young people transitioning from children’s to adult services is therefore likely to resurface for the duration of the Act – again during a time of crisis when it is likely that this care and support is needed more than ever.
It is encouraging that at least one local authority has already pledged on Twitter to continue to provide services to young people who have turned 18 until their transitional assessments are completed, regardless of the amendments proposed by the Bill. But all local authorities cannot be relied upon to do the same, in the absence of a legally enforceable duty to do so.
A proportionate response?
The Government’s impact assessment of the Coronavirus Bill justifies the temporary suspension of the majority of the CA 2014 duties with the prediction that, “during the peak [of the virus], adult social care services will face surging demand and reduced capacity arising from higher rates of staff absence. This may make it impossible for LAs to continue to deliver at current service levels, or undertake the detailed assessments they would usually provide.”
The impact assessment adds:
“In such circumstances it is crucial that LAs should be able to prioritise care in order to protect life and reach rapid decisions over the provision of care without undertaking full Care Act compliant assessments.”
This is, of course, a serious health crisis, and the need to prioritise care in order to protect life can hardly be argued with. But it is hard to believe that these changes will not make the situation worse. The link between current failures to meet care needs and consequent pressure on the NHS is well-established. Now does not seem like a good time to test that evidence.
Further, even when the peak of the crisis has passed, it appears that care needs will still not be met. Not only does the Bill include a ‘backlog’ clause (Schedule 11, clause 17) – effectively giving local authorities more time to catch up with needs not assessed during the crisis – but the damage to the care sector could be irreversible.
Lawyers and disability rights groups have been lobbying their MPs over the weekend, in the hope the Bill will be amended during the debate on 23 March, to ameliorate some of the damage that will be done to adult social care. With the Government’s significant majority, however, it is highly likely that it will be passed with little or no amendment.
We should all be very worried about the serious impact of the Coronavirus Bill on adults with care and support needs and their carers, whose needs can (and most likely will) be overlooked during this crisis and beyond.
However, during the peak, adult social care services will face surging demand and reduced capacity arising from higher rates of staff absence. This may make it impossible for LAs to continue to deliver at current service levels, or undertake the detailed assessments they would usually provide. In such circumstances it is crucial that LAs should be able to prioritise care in order to protect life and reach rapid decisions over the provision of care without undertaking full Care Act compliant assessments.