Care Act “easements” – meeting needs for care and support

Requirements removed by the Coronavirus Act include duties to:

• Assess needs/conduct carers’ assessments
• Conduct financial assessments (although local authorities can’t charge for services unless they do)
• Determine whether needs are eligible
• Meet a person’s needs for care and support/carers’ needs unless failure to do so would breach that person’s human rights.

However, guidance from the Department of Health and Social Care says that pre-amendment requirements should be followed so far and for as long as possible. “Easements” should not be relied upon unless certain conditions set out in the guidance are met. (See below).

This note looks at how local authorities should approach the “easement” relating to meeting needs. It is not comprehensive and does not replace the need for legal advice.

More information about financial assessments following the Coronavirus legislation is available in Christine Cooper's article:  Coronavirus emergency: local authority charges for care and support.

New rules on meeting eligible needs for care and support

Before being amended, ss. 18 and 20 Care Act 2014 imposed a duty on local authorities to meet eligible needs for care and support and eligible carers’ needs (subject to various conditions).

Now, under amendments made by the Coronavirus Act, there is only a duty to meet a person’s needs for care and support if failure to do so would breach that person’s human rights under the ECHR.

Although the statutory rules have changed, the guidance says that pre-amendment requirements should be followed “for as long, and as far, as possible”.

“Easements” should, it says, only be exercised if “this is essential in order to maintain the highest possible level of services”. The workforce must be significantly depleted, or demand on social care increased, to an extent that it is no longer reasonably practicable to comply with pre-amendment duties.

Certain decision-making requirements,  including sign-off by the Director of Adult Services,  and requirements for consulting on, communicating, and recording such decisions, must also be met. See section 6 of the Department of Health and Social Care’s “Care Act Easements” guidance  for full details.

Any local authority that operates the “easement” relating to meeting needs for care and support without these requirements being met risks acting unlawfully.   

Determining whether there will be a breach of human rights

Before a local authority decides not to meet a person’s needs, how can it satisfy itself that this will not breach that person’s human rights?

• Firstly it has to consider what the person’s physical and mental health needs are.
• Then what care and support is needed to meet them.
• And finally what the consequences of not providing it would be, and how this would impact on their human rights.

Therefore, even if a local authority is “operating under the easements”, it will still need to assess care and support needs, albeit to a reduced extent. It will also need to conduct human rights assessments.

When making assessments and decisions, local authorities should keep “proportionate” written records.

Which human rights are likely to be engaged?

Rights that may be engaged by a failure to provide care and support include:

• the right to life (art. 2)
• the right to freedom from inhuman and degrading treatment (art. 3)
• the right to private and family life (art. 8).

The right to liberty (art. 5), and right to freedom from discrimination in the application of other ECHR rights (art. 14) may also be engaged. Each case will turn on its own facts, and this list is not exhaustive.

Existing case law suggests that, particularly in the case of arts. 3 and 8, the threshold for finding a breach is likely to be high. It may be that the very different context in which we now find ourselves will result in a departure from this approach.

In any event, a fact-specific analysis, taking into account all relevant circumstances, will be required in each case. Local authorities will need to consider the person’s individual circumstances and characteristics and whether these may change.

Case law suggests that factors to consider when assessing whether there would be a breach may include a person’s:

• age
• gender
• mental and physical health and condition
• any facilities or sources of support available to them, and
• the period for which they have already suffered, or are likely to suffer, adversity.

Meeting needs when “operating under easements”

Even when a decision to “operate under easements” has been properly made, local authorities must still consider each individual case carefully.

First is there is a duty to meet needs on human rights grounds? (See above).

If not, the power to meet needs should be exercised in line with general public law principles, the Department of Health and Social Care's guidance, and the Ethical Framework for Adult Social Care.

The guidance recognises that “[i]f operating under the Care Act easements, local authorities may need to prioritise packages of care and support”.

The guidance does not tell local authorities how to prioritise “as methods of prioritisation will be unique to each area”. However, Annex C provides advice on mapping needs and sets out some points to consider when planning for prioritising resources.