On 31 March 2020, the Coronavirus Act 2020 (Commencement No. 2) Regulations 2020 were made by the Secretary of State for Health. These bring into force Schedule 12 of the Coronavirus Act 2020, which contains sweeping changes to local authorities' duties under the Care Act 2014.
On the same day, guidance was issued by the Secretary of State on when and how local authorities should use the new Care Act 'easements'.
We have written previously about the proposed amendments (when the Act was in Bill form) here. As Schedule 12 of the Act was passed into law without amendment, those concerns remain.
This post contains a brief summary of the key amendments to the Care Act 2014 made by Schedule 12 of the Coronavirus Act 2020, as well as the guidance.
Amendments to the Care Act 2014
The Coronavirus Act 2020, in short, temporarily suspends most of the duties contained in the Care Act 2014 (CA 2014) during the crisis.
As indicated above, the amendments are contained in Schedule 12 of the Coronavirus Act 2020, which came into force on 31 March 2020.
Duty to assess
Under the CA 2014 as originally enacted (i.e. before any amendments were made by the Coronavirus Act 2020), local authorities “must” assess any adult if it appears that s/he “may” have needs for care and support (s.9 CA 2014). They "must" also assess any carer that "may" have needs for care and support (s.10 CA 2014).
Paragraph 2(1) of Schedule 12 removes the duty to assess.
Duty to meet needs and prepare a care plan
The CA 2014 imposes a duty on local authorities to meet “eligible” needs (s.18 CA 2014). 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).
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).
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).
Schedule 12 of the Coronavirus Act 2020 has temporarily suspended all of these core duties. The Act 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 Coronavirus Act 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 12, paragraph 4). This offers very little, however, as the threshold for establishing that a failure to provide care and support would result in a breach of Articles 3 or 8 ECHR is extremely high under the current case law (our concerns about this were outlined in our earlier post here).
The Secretary of State for Health issued guidance on 31 March 2020, Care Act easements: guidance for local authorities.
Practitioners and local authorities will need to consider all of the guidance carefully, particularly section 6, which sets out the steps that each individual local authority should take before exercising the Care Act 'easements' (emphasis added):
"[A] local authority 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. Any change resulting from such a decision should be proportionate to the circumstances in a particular local authority."
Section 6 and Annex A of the guidance set out how this decision should be taken, and the evidence that should be taken into account. It will only be after a decision to activate the Care Act 'easements' has been taken by a local authority that the Care Act duties set out above will be suspended for that local authority.
Section 3 of the guidance clarifies "what the powers actually change" and indicates that (emphasis added):
1. Local authorities will not have to carry out detailed assessments of people’s care and support needs (in compliance with s.9 CA 2014) but they will still be expected to respond as soon as possible to requests for care and support, consider the needs and wishes of people needing care and their family and carers, and make an assessment of what care needs to be provided.
2. Local authorities will not have to carry out financial assessments in compliance with pre-amendment CA 2014 requirements. They will, however, have powers to charge people retrospectively for the care and support they receive during this period, subject to giving reasonable information in advance about this, and a later financial assessment.
3. Local authorities will not have to prepare or review care and support plans in line with the pre-amendment CA 2014 provisions. They will however still be expected to carry out proportionate, person-centred care planning which provides sufficient information to all concerned, particularly those providing care and support, often at short notice. Where they choose to revise plans, they must also continue to involve users and carers in any such revision.
4. The duties on local authorities to meet eligible care and support needs, or the support needs of a carer, are replaced with a power to meet needs. Local authorities will still be expected to take all reasonable steps to continue to meet needs as now. In the event that they are unable to do so, the powers will enable them to prioritise the most pressing needs, for example enhanced support for people who are ill or self-isolating, and to temporarily delay or reduce other care provision.
Section 4 of the guidance also confirms that other important duties on local authorities remain in place, including the duty to promote wellbeing (s.1 CA 2014) and duties relating to safeguarding adults at risk (s.42 CA 2014). Duties in the Mental Capacity Act 2005 relating to Deprivation of Liberty Safeguards (DoLS) also remain in place, for which separate guidance will be published. We will do a further post as soon as the guidance regarding the operation of DoLS during the crisis is available.
Section 5 of the guidance confirms that local authorities will be expected to observe the Ethical Framework for Adult Social Care.
So will needs assessments disappear entirely?
Although the duty to assess care and support needs under s.9 CA 2014 has been temporarily suspended by Schedule 12 of the Coronavirus Act, it appears from the guidance that - even after local authorities have 'activated' the Care Act 'easements' in the prescribed manner - they will still be expected to carry out some form of assessment of needs, albeit a less detailed assessment, before exercising their power to meet needs under s.19 CA 2014, or their duty to meet needs in order to avoid a breach of Convention rights. This is backed up by a number of points in the guidance:
- Section 3 states that "local authorities will be expected to respond as soon as possible to requests for care and support... and make an assessment of what care needs to be provided."
- Annex B states that "local authorities should still assess people’s social care and support needs throughout this period and should make a written record of this assessment...It is crucial that local authorities are able to evidence their decision, demonstrate their professional judgement apply the Ethical Framework for Adult Social Care, and where necessary, record that they have considered the Convention rights".
The guidance recognises that it may not be possible or necessary for assessments to be face-to-face, and sets out a number of alternative means of assessment "taking into consideration people’s cognitive and communication needs and mental capacity", including telephone or video assessments.
Overall, the guidance leaves a lot of discretion to individual local authorities and so it remains to be seen when they will activate and how they will apply these temporary Care Act 'easements'. The guidance makes clear that adults and their carers should be consulted before any changes to their care plans are made. Nevertheless, it remains a serious concern that adults with care and support needs and their carers will be left without critical support in this time of crisis, when they are likely to need it most.