The Coronavirus Act 2020 should be a significant cause of concern for social care providers and the vulnerable people they support. With the removal of an obligation for local authorities to assess and meet the needs of people in the community, unless there is a threat to life, the new legislation has watered down the crucial care obligations set out in the Care Act 2014. This new and lamentably low threshold will undoubtably put vulnerable people at risk, but also re-affirms that the burdens placed on local authorities and social care providers in the Care Act 2014 have been unsustainable for too long and must be addressed.
From a legal standpoint, the Coronavirus Act 2020 directly alters the provisions of the Care Act 2014. Local authorities now have the power to disapply or modify their Care Act duties, and with their attention turning to address the challenges they face during the coronavirus pandemic, they have been allowed to reduce their responsibilities in relation to assessing needs and finances; meeting eligible needs; and preparing care and support plans.
The legislation provides a mechanism to weaken the obligations on those providing social care when it is deemed necessary for resources to be directed towards managing the impact of Covid-19. While the measures help to reduce the administrative burden on local authorities, which is appropriate given the challenging situation, the removal of the obligation on local authorities to assess people and meet needs, is troubling and directly affects the quality of care provided to our most vulnerable citizens.
It is worth noting that the advice on Care Act modifications, released by the Department for Health and Social Care, states that changes to current practice should be used narrowly and as a last resort. If a local authority is able to meet the duties they had in place prior to the changes coming into force, then they should continue to do so for ‘as long and as far as possible’.
And yet, we have already seen several local authorities introducing easements to their social care provision. As the Gazette reported, at least six councils have already started to suspend their adult social care duties. Whilst easy to criticise these councils for their actions, it is more useful to look at the underlying problems and burdens faced by local authorities, who in return should be transparent about the reasons that have forced them to adopt the emergency measures.
Whilst the introduction of easements may be a concern for individuals who worry that their care needs will not be met because of these easements, it is important to remember that they are still protected by the European Convention on Human Rights. The level of care people receive is protected by their right to life (Article 2); right not to be subject to inhumane or degrading treatment (Article 3); and right to not be discriminated against (Article 14). Local authorities must justify any changes in their approach to provision of care and support and if they can show that their decision is proportionate and meets a legitimate aim, the difference is likely to be lawful. This will be an area closely scrutinised as the emergency powers are used.
Whilst the Act is a temporary measure, purportedly in place to help manage the impact of Covid-19 on vulnerable individuals, I believe it is counterproductive to attempt to achieve an environment of protection by loosening legal criteria. When we move forward from the pandemic, to a time of review, we need to see a legal solution that eases the burden in this field, while still affording vulnerable adults the care and support they deserve.
We have witnessed new ways of working during the pandemic and the renewed cooperation between the NHS and social care sector has been very encouraging. It was pleasing to hear the Chief Executive of the NHS Confederation calling for health and social care to be seen as ‘one system [to] build a new way forward’. When the time for new legislation is right, the government should consider making health and social care a more integrated process using the burdens identified in the Coronavirus Act 2020 to design an inclusive system that works for everyone.
Mea North, community care Lead, Moore Barlow