The Coronavirus Act (“CVA 2020”) has fundamentally altered local authorities’ duties under the Care Act 2014 (“CA 2014”). However, a day after the changes came into effect the government released statutory guidance, which has significantly tempered the changes imposed by the CVA 2020.
What is best practice for local authorities delivering Care Act 2014 services during the COVID-19 pandemic?
Summary of Legislative Changes and Policy Documents
The CVA 2020 has removed several key duties of local authorities under the CA 2014. Under the CVA 2020 local authorities no longer need to:
- Undertake detailed assessments of people’s care and support needs
- Undertake financial assessments
- Create and review care and support plans
Furthermore, local authorities in England only need to meet a person’s needs where failure to do so would breach a person’s Convention rights, as defined in the Human Rights Act 1998. These changes and human rights assessments are discussed in more detail by Eleanor Sibley in her article: Care Act “easements” – meeting needs for care and support..
The CVA 2020 changes appear to entail a drastic shift in local authorities’ duties. However, the statutory guidance emphasises that local authorities should take a graduated approach to easing their CA 2014 duties, rather than the “all or nothing” approach the CVA 2020 seems to envisage.
Crucially, the guidance self-defines as statutory guidance under the CVA 2020, which means local authorities “must have regard” to it. If they fail to do so, the Secretary of State may direct them to comply.
Local Authority Approach Directed by the Guidance
Graduated Approach to Applying the Easements
The guidance states that the adjustments, or “Care Act easements” as they are referred to inaccurately in the guidance, are essentially a last resort. Local authorities should comply with their pre-amendment CA 2014 duties “for as long and as far as possible”. Only when a local authority is “unable to” continue meeting those duties, or when it is “essential” to maintain the highest possible level of services, may a local authority exercise their right to apply the Care Act easements. This may be when the “workforce is significantly depleted” due to COVID-19 so that it is “no longer reasonably practicable” to comply with the CA 2014 duties, and where trying to continue doing so is likely to result in “urgent or acute needs not being met, potentially risking life”.
This is a high bar. Local authorities need to be assessing continually whether they have reached these points and whether failure to exercise the Care Act easements may result in urgent or acute needs not being met.
Four-Stage Decision-Making Process
Annex A to the guidance sets out a four-stage process to decision-making that it expects local authorities to follow. It is worth noting that local authorities are expected to rely on the existing ‘flexibilities’ within the CA 2014 before turning to the easements. The following process is envisaged:
Operating under CA 2014
- Business as usual – operating under the pre-amendment CA 2014
- Applying CA 2014 flexibilities – to prioritise short-term allocation of care and support for individual service types
Operating under CVA 2020
- Decision to apply the Care Act easements – ceasing formal CA 2014 assessments, applications of eligibility and reviews and moving to a position of proportionate assessment and planning
- Whole system prioritisation under Care Act easements – reallocating resources to address those most in need
It is suggested that local authorities should continually keep their ability to meet their pre-amendment CA 2014 duties under review, and only shift to the next decision-making stage when necessary to maintain the highest possible level of services. The reasons for any shift to the next stage of decision-making should be recorded and evidenced in writing (see more on this below).
Once Applied, What Changes do the Care Act Easements Entail?
- Suspension of CA 2014 needs assessment duties
Once a local authority applies the easements, the following assessment duties are suspended and replaced with a ‘power’ to meet needs:
- Adult’s needs for care and support (CA 2014, s.9)
- Carer’s needs for support (CA 2014, s.10)
- Needs of a child transitioning to adult care (CA 2014, ss.58, 59)
- Needs of a child’s carer (CA 2014, ss.60, 61)
- Needs of a young carer (CA 2014, ss.63, 64)
There is also no need to determine whether a person’s needs meet the eligibility criteria (s.13 CA 2014), and no need to give a written record of assessments (s.12(3) and (4) CA 2014).
- Suspension of CA 2014 financial assessment duties
Financial assessments under s.17 CA 2014 are also no longer strictly necessary while the easements are being applied. Local authorities may charge retrospectively for meeting care needs during this period. However, the guidance emphasises that “none of the fundamental principles underpinning the CA 2014 statutory guidance on charging and assessment are removed or diluted.” This means that any retrospective charges should therefore be clear and transparent, in line with what people can afford, and on the basis of a financial assessment under the CA 2014.
- Duty to provide a human rights-compliant service
The CVA 2020 provides a human rights ‘floor’ to the service that must be offered in England during this time (in Wales care only needs to be provided to protect from abuse or neglect). This means that local authorities must ensure that they meet an adult’s needs for care and support if it is necessary “for the purpose of avoiding a breach of the adult’s Convention rights” (and if certain financial criteria are fulfilled – see paragraph 4 of Schedule 12 CVA 2020). This obligation is crucial, as it means there is still a need to assess adults in order to obtain the necessary information to determine this question. See more on this in Eleanor Sibley’s article: Care Act “easements” – meeting needs for care and support..
4. Care and support plans
The CVA 2020 suspends the duties to prepare and review care and support plans under sections 24 and 25 of the CA 2014. Therefore there is no requirement to prepare plans with the level of detail required under the CA 2014. However, the guidance states that local authorities will “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.” This is in line with local authority duties to meet needs in a human rights-compliant manner.
Record-keeping and evidence
Record-keeping and evidence are constantly emphasised throughout the guidance. It is recommended that all decisions local authorities make in relation to the CA 2014 and COVID-19 are well-evidenced, with a written record of each decision and the reasons for it. The guidance states that the written record should include the following information when deciding to apply the Care Act easements:
- The nature of the changes to demand or the workforce
- The steps that have been taken to mitigate against the need for this to happen
- The expected impact of the measures taken
- How the changes will help to avoid breaches of people’s human rights at a population level
- The individuals involved in the decision-making process
- The points at which this decision will be reviewed again
Providing a human rights-compliant service
A new, more limited form of assessment will need to be undertaken to ensure a human rights-compliant service. It will need to be drafted so as to elicit sufficient information to determine whether a person’s Convention rights are at risk of being breached.
Article 2 (the right to life), Article 3 (freedom from inhuman and degrading treatment) and Article 8 (right to private and family life) are the most likely to be engaged here. The threshold for breaching an individual’s Article 2, 3, or 8 rights in this context is high but each must be considered in every case. Therefore it may be advisable to have an assessment form which considers each Article separately. In summary:
- Article 2 – concerns whether there is any risk to an individual’s life in failing to meet care needs. This includes the need to protect individuals from self-harm.
- Article 3 – imposes a duty to provide an individual with the “basic necessities of life”, including food and shelter. Limbuela v Secretary of State for the Home Department  UKHL 66.
- Article 8 – includes the need to protect a person’s physical and psychological integrity. The threshold is high. There was no Article 8 breach in the case of an incontinent former prima ballerina who was provided by the local authority with incontinence pads rather than a night-time carer. R (on the application of McDonald) v Royal Borough of Kensington and Chelsea  UKSC 33. There was a breach, however, where a local authority’s failure to secure appropriate accommodation led a wheelchair-using, doubly incontinent mother “to defecate and urinate” in her living room as she was unable to reach the bathroom. See R (Bernard) v Enfield London Borough Council  EWHC 2282 (Admin) (in which Tony Harrop-Griffiths of Field Court Chambers appeared for the local authority).
Other Convention rights, such as those in Article 5 and 14 may also need to be considered. See more in Eleanor Sibley’s article.
The need to review the changes is a constant focus of the guidance. The easements are a short-term device to fulfil care needs during the COVID-19 crisis and the Secretary of State will “keep the easements under review and terminate them, on expert clinical and social care advice, as soon as possible”. Consequently it is not advisable to become too comfortable with them, and the emphasis is on constantly seeking to stop using them and on only using them when absolutely necessary.
Furthermore, the guidance specifically states that any decisions taken to prioritise or reduce support across the adult social care system as a whole should be reviewed at least every two weeks. Full service should be restored as soon as possible.
Areas of Risk & Uncertainty
When to apply the easements
Unfortunately, it is unclear when it will be ‘necessary’ to apply the Care Act easements. As stated above, the guidance gives several different tests for this, including:
- whether it is “essential” to maintain the highest possible level of services
- when a local authority is “unable” to comply with CA 2014 duties, and
- where it is not “reasonably practicable” to comply because the workforce is depleted and demand on social care has increased.
It is suggested that local authorities bear in mind all of these separate tests when deciding whether to exercise the easements, and address each of them in the written record of the decision. This should include all the information in the ‘Record-keeping’ section set out above
The guidance states that the four-stage decision-making process it envisages (set out in Annex A to the guidance) is not necessarily “sequential”. It says it should “follow a situation where there are increasing pressures on adult social care delivery”. This means local authorities may be able to ‘jump’ through stages of the decision-making, provided there is sufficient demand on their services, and they can evidence the reasons for their decisions adequately.
 Under the Coronavirus Act 2020 (Commencement No. 2) Regulations 2020.
 Under paragraph 18(2) of Schedule 12 CVA 2020.
 CVA 2020, Schedule 12, paragraph 18(3).