The Coronavirus Act 2020

Updated 1 April 2020.

This briefing considers:

1. The main provisions of the Act – this section briefly describes these as they apply to social care in England and Wales – (although click here for a more detailed briefing concerning the legal position in Wales) ;

2. Considers the key values and principles [and a short ‘rant] – values and principles that will guide the way that social services department’s must act in the coming months; and

3. Practical action where problems arise – ie the steps that elderly, ill and disabled people, and families may be able to take if their eligible care and support needs are not being met appropriately.

.

1. The main provisions of the Act ~ brief overview

The Coronavirus Act 2020 – received Royal Assent on the 25th March 2020 and the text of the Act can be downloaded by clicking here.

The Act is the most draconian legislation enacted since the Second World War and provides the Governments in the UK four nations with powers to suspend / dilute a whole raft of legislative duties – not least in relation to health, social care, social security and education.  It also provides power to suspend all relevant regulations (section 88).

This briefing is concerned with the legal position in England and Wales in relation to the social care and education provisions.  The Act can be accessed by clicking here and the Explanatory Notes to the Act will be published shortly.  At the time of preparing this briefing the notes to the Act were unavailable, and accordingly references are made to the Explanatory Notes to the Bill which can be accessed by clicking here.  It is a long Act with 347 pages including 29 Schedules.

 

Implementation / expiry dates

The Explanatory Notes to the Bill (at para 6) made clear that this is only one part of the legislative response to the threat posed by the virus and that:

These are extraordinary measures that do not apply in normal circumstances. For this reason, the legislation will be time-limited for two years and it is neither necessary nor appropriate for all of these measures come into force immediately.

The Act is scheduled to expire on the 24th March 2022 (ie two years from its commencement- section 89.  This can be extended of brought forward (section 90).  Every six months Parliament must agree to the extension of the temporary provisions of the Act and if this does not occur, these will come to an end at that point (section 98).

Although the English Government indicated that major reductions to social care rights would not be triggered until there was an imminent risk of councils failing to fulfil their duties (see below) – with the Act gaining Royal Assent the Government promptly pulled the trigger and downgraded these rights (on 31st March) see The Coronavirus Act 2020 (Commencement No. 2) Regulations 2020.   In Wales these provisions have also been brought into effect.

On the 1st April 2020 the English Government issued guidance as to how local authorities should operate – in the light of their reduced statutory duties to adults in need and their carers – as the Care Act easements: guidance for local authorities – which is discussed further below.

The Impact Assessment for the Coronavirus Bill produced by the Department of Health and Social Care explained (among other things) the English Government’s reasons (its ‘justification’) for the measures.  The document can be accessed by clicking here – and it explains the circumstances when the powers would be brought into effect.  Key extracts from this document are detailed below.  The Welsh Government has published a (largely descriptive) outline of the Act’s impact in Coronavirus: Bill Summary – which can be accessed by clicking here.   The English Impact Assessment includes:

95. These changes to the Care Act 2014 would only be triggered if the spread of coronavirus was such that the Secretary of State considered LAs to be at imminent risk of failing to fulfil their duties under the Care Act 2014 and would be deactivated at the conclusion of the emergency period. Even during the operation of these changes, LAs would still be expected to continue meeting all of their duties under the Act if they are able to do so. …

96. 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. ….

97. 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.

98. These provisions, which would only be brought into operation for the shortest possible time at the peak of the coronavirus outbreak. Without these provisions, LAs would be constrained by existing assessments, which could result in them maintaining these at the expense of new, more urgent needs, or prevent them from allocating scarce support purely on the basis of severity of need. Such decisions could be inhibited by the fear of legal challenge under the Care Act

99. These provisions would also provide Secretary of State with a power to direct LAs to comply with Government guidance regarding the principles they should follow when prioritising care.

 

The key elements of the 2020 Act

What follows is a brief overview guide to the relevant provisions of the Act.  This briefing is more concerned about what practical action individuals can take where they consider that a local authority or NHS body is failing to provide the necessary support – considered further at part 3 below.

A number of experts have provided detailed commentaries on the Act – and for the wicked detail – see for example:

  1. Stephen Knafler / Landmark Chambers – to access the commentary click here.
  2. 11 Kings Bench Walk Chambers’ – to access the commentary click here.
  3. Belinda Schwehr of CASCAIDr’s commentary – can be accessed by clicking here.
  4. Phillip Mitchell of BASW Cymru – to access the commentary click here.

 

Social Care

Section 75 and schedule 12 Part 1 of the Act enables the English and Welsh Governments to downgrade almost all adult social care duties (including charging and hospital discharge duties).  The Explanatory Notes to the Bill (at para 175) explain, the various duties to assess and meet eligible needs of adults and carers in the Care Act 2014 and adults, young people and carers in the Social Services and Well-being (Wales) Act 2014 (SSWWA) are downgraded to powers.

A duty to meet needs will only arise in England if a failure to provide care and / or support would be a ‘breach of an individual’s human rights’. In Wales a duty only arises where a failure to do so would mean that the individual may be experiencing or at risk of abuse or neglect.

 

As this provision has now been brought into effect in England and Wales – it will be difficult to legally challenge a local authority failure to provide appropriate care and support.  Difficult in Wales and very difficult in England. In both nations aggrieved individuals may well be advised to first approach the Secretary of State for Health and Social Care (England) and the Welsh Ministers (Wales) asking that they direct the offending local authority to act in a specific way – using their powers under Schedule 12 paras 18 and 35 respectively of the 2020 Act

 

England

The ‘breach of human rights’ limitation already applies to some people subject to immigration control and has been interpreted harshly by courts.[1]  In relation to English citizens, R (Bernard) v Enfield LBC[2] is one of the few significant social care case where a human rights violation was found.  This concerned a council’s failure to act to move a wheelchair-dependent claimant to suitable accommodation left her (among other things) unable to access the kitchen or bathroom and forced to defecate or urinate on the floor several times a day.

It will however be relevant in claims of this kind to remind local authorities of the judgment in Price v UK,[3] where Judge Greve held that:

In a civilised country like the United Kingdom, society considers it not only appropriate but a basic humane concern to try to improve and compensate for the disabilities faced by a person in the applicant’s situation. In my opinion, these compensatory measures come to form part of the disabled person’s physical integrity.

 

Wales

In Wales, authorities would appear to be under a greater duty to provide care and support – as the duty is triggered ‘where a failure to do so would mean that the individual may be experiencing or at risk of abuse or neglect’.  The Social Services and Well-being (Wales) Act 2014 already places a duty to provide care and support in such cases.  For a discussion of safeguarding responsibilities in Wales click here for the relevant Rhydian Social Welfare Law in Wales pages.

 

Registering new social workers

Schedule 5 contains emergency (temporary) modifications of social work registers[4] in England and Wales to enable extra social workers to be employed – these are essentially people who the regulator considers to be fit, proper and suitably experienced person to be registered as a social worker with regard to the emergency – see Schedule 5 para 1(3) and para 2(2).

 

NHS Continuing Healthcare duties – England only

Section 14 of the Act, is explained by paras 172 – 173 of the Explanatory Notes: namely that (if this provision is brought into effect) it applies to ‘the procedure for discharge from an acute hospital setting for those with a social care need’ and that it allows NHS providers to delay undertaking the NHS Continuing Healthcare assessments – and that ‘pending that assessment, the patient will continue to receive NHS care’.

 

Education

Schedule 17 of the Act provides the Secretary of State / the Welsh Ministers with powers to issue directions suspending school provision and attendance duties and downgrades local authority education law duties (including those relating to the provision of Special Education Needs) to obligations ‘to use reasonable endeavours to discharge’ the duty.

 

Mental Health detention

If this provision is brought into effect, schedule 8 Part 2 of the Act provides that an application by an approved mental health professional under the Mental Health Act 1983 sections 2 or 3 need only be founded on the recommendation by a single registered medical practitioner.

It also provides for time limits to be extended: for doctors and nurses to detain patients already in hospital pending assessment to 120 and 12 hours respectively; for police to detain a person in a place of safety for 36 hours.

 

Government guidance

English Government guidance concerning coronavirus implications for residential care, supported living and home care support can be accessed by clicking here.  SCIE (the Social Care Institute for Excellence) has a general webpage with updated information concerning coronavirus related social care developments – accessible by clicking here.

 

2. Values and Principles

The Department of Health and Social Care has published important Framework Guidance for adult social care – although this must clearly also apply to disabled children’s services too.   The Guidance Responding to COVID-19: the ethical framework for adult social care (19 March 2020) can be accessed by clicking here.

The guidance makes the usual interdisciplinary noises ‘collaboration across disciplines and organisations’ and the need for person centred approaches ‘every decision will require consideration of individual wellbeing’  However it then does something unusual and very welcome – it states:

Social workers, occupational therapists and nurses form the core professional group and have clear responsibilities and accountabilities to their own professional codes and guidelines.

 

If this heralds a fundamental ‘turn away’ from attacking the professions and true recognition that the target driven ‘command and control’ culture that has decimated social work (and many other professions) is no longer appropriate – then this is a major development – even if it is a temporary ‘conversion’.  There has been an accelerating emergency in social care for the last 25 years: decades of dysfunctional, ‘social care ignorant’ centralised power – intent on commodifying, privatising, cutting and dishing social work as a profession.  If, in this hour crisis, there is at last recognition that the administrativisation has failed – failed absolutely – then that is something we should all be thankful for. [Rant over!].

The corollary of this point is important – that in this emergency social care decisions should not only be compliant with the law, they should also go with the grain of professional codes and guidelines.  Where adverse social care decisions are challenged (by those in need as well as by social workers) – the reference points will be these twin principles (law and professional practice) rather than the primacy of arbitrary (and narrow) budgets, performance indicators and rigid internal rule books.

Apart from the recognition of the importance of professional codes and practices, the COVID-19 ethical framework lists eight principles – one of which warrants especial mention (and is discussed further below).

For each of the eight principles, the Framework provides a brief note explaining what important issues it covers.  In the list below, I have included a few extracts from these ‘notes’: notes that struck me as particularly relevant.

1. Respect

2. Reasonableness

  • ensuring that decisions are rational, fair, practical …. .
  • ensure the decision made is practical with a reasonable chance of working
  • consider alternative options and ways of thinking, being conscious of diverse views from cultures and communities

3. Minimising harm

4. Inclusiveness

  • involve people in aspects of planning that affect them, their care and treatment, and their communities
  • involve families and carers in aspects of planning that affect them and the individual who they care for

5. Accountability

  • adhering to official guidance, statutory duties, and professional regulations at the time
  • being transparent about how and which decisions need to be made and on what basis

6. Flexibility

7. Proportionality

8. Community

  • a commitment to get through the outbreak together by supporting one another and strengthening our communities to the best of our ability … .

 

Flexibility

All of the above values are important and referencing them should be helpful when challenging adverse social care decisions.  In relation to the cases I have been asked to consider – cases that have arisen since the emergency started – I have been struck by the importance of social services demonstrating flexibility.  The reason for suggesting the importance of this principle is discussed in the section that follows ‘Practical action where problems arise’.

This principle is defined as ‘being responsive, able, and willing to adapt when faced with changed or new circumstances’.  The Framework then states that in order to ‘ensure flexibility, those making decisions should be prepared to’:

  • respond and adapt to changes as and when they occur, for example in the event of new information arising or changed levels of demand
  • ensure that plans and policy have room for flexibility and innovation where necessary
  • provide people with as much opportunity as possible to challenge decisions that affect them in the time that is available
  • ensure that the health and care workforce is supported to work collaboratively across disciplines and organisations, as agile and resilient as possible
  • review organisational practices, standard approaches and contractual arrangements that may obstruct these ambitions

 

Care Act easements: guidance for local authorities. 

As noted above, the Government has downgraded social care rights under the Care Act 2014 and issued guidance as to how authorities should operate in this new environment  –  Care Act easements: guidance for local authorities .  This is not an ‘easement’ it is a straight forward downgrading and it is seriously regrettable that the Department of Health and Social Care should use such Orwellian language of this kind.

The guidance (and the Ethical Framework for Adult Social Care ) is statutory guidance which local authorities must follow – being issued under para 18 schedule 12 of the Coronavirus Act 2020. If a local authority fails to comply with the guidance one route will be to contact the Secretary of State and request that he use his power (under schedule 12) to direct the authority to comply.  A failure by the local authority (or indeed the Secretary of State) to take the necessary action can be challenged by judicial review.

The guidance (section 6) states that before an individual local authority decides to treat its Care Act 2014 duties as ‘powers’  it must follow a formal process that includes:

The Director of Adult Social Services and Principal Social Worker agreeing  this is necessary – and fully involving the lead elected member, informing The Health and Wellbeing Board and on the basis of a ‘fully’ informed discussion with the Local NHS CCG leadership.

An evidenced record of the decision being made that should include:

  • 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

This decision should be communicated to the Department of Health and Social Care (with the relevant detail) as well as to all providers, service users and carers.

 

3. Practical action where problems arise

Some lawyers may get highly energised about the possible suspension of the duties under the Care Act 2014 and the Social Services and Well-being (Wales) Act 2014.  In reality, however, these were suspended long ago – if indeed they ever came into force.  For most carers as well as elderly, ill and disabled people, the promises in these Acts were erased by the austerity pandemic.  The savage cuts to legal aid, to advice agencies and the ombudsmen have meant that the letter of the law has been meaningless for most people in need – with the possible exception of those who have a sister who is a barrister.

Most people in need have had to use other (non-legal) mechanisms to challenge adverse decisions concerning their care and support needs.   Challenges that often rely on the decency and courage of those working in social services departments to ‘do the right thing’. Very often this will involve challenging an arbitrary, stupid and self-defeating local policy: a policy developed by a senior technocrat who claimed to have the answers – but was in fact part of the problem.

This approach – ie relying on the decency and courage of those working in social services departments – will continue to be the way that most decisions are challenged.  In this (not so new) climate – we at least have the benefit of the Responding to COVID-19: the ethical framework for adult social care guidance and its emphasis on professional codes and professional judgment.

Here are two problems that we have encountered since the emergency – both difficult.  I include my initial thoughts on what can be done – but we would welcome additional suggestions as to how these (and other) problems can be addressed.

 

Problem 1 ~ withdrawing a ‘child’ from a placement due to COVID-19 fears

A family has made the decision to remove their son/daughter (including an adult son/daughter) from their residential school/supported living/registered care home because they fear that the service will not be able to keep them safe during the COVID-19 pandemic.  What are their rights to have some support in the family home to assist them?

Thoughts on this problem

Of course the rights are no different today (27 March 2020) as the powers in the 2020 Act have not been triggered by the Ministers in England or Wales: the same rights to support and the same rights of carers to be assessed and supported.   Councils will have to accept the change in circumstances and reassess.

In this situation, councils must be able to demonstrate that they are being ‘flexible’ – and it would be unreasonable for a council to stick to a rigid line of saying that the need can be met by providing the (previous) ‘residential’ service and that the family have effectively rejected this offer.  It would also be unreasonable for a council to state that it can’t provide support in their home. Obviously making alternative provision is going to be difficult – but legally – in cases like this there is no such word as ‘can’t’: for further analysis of this issue see click here.

On the face of it, it is not unreasonable for a family to act in this way – given the likelihood that the lock down will become more severe, and the possibility that many residential placements may close and care support workers / teachers may fall ill and the fact that the Care Quality Commission has now suspended all routine care home inspections.

Families must however appreciate that the courts and ombudsman will have some sympathy for councils as the try to cope with the challenges of the current emergency.[5]  This is a reality that families will need to bear in mind.

In ideal situations, families will be able to show that what they are asking for is reasonable and ideally be able to suggest some way that the support shortfall could be addressed – ie by pointing to potential substitute carers / support arrangements that could be put in place (including family members being paid using direct payments).

Just as families will have to show that they are being reasonable so too must councils demonstrate that they being flexible and abandoning their rigid ‘command and control’ rules.   Just as the new Act enables social services to register people as ‘social workers’ – who would not previously have been eligible to be registered – so too must local authorities be flexible over who is paid using a direct payment.  Councils have very considerable powers to allow family members (even those living in the same household) to be paid for their caring role via a direct payment.  At times such as this – they must demonstrate a flexibility when (if) a family suggest this as a way that a person’s care and support needs could be met.

 

Problem 2 ~ Direct payments

Disabled people / families who have been assessed as needing day care support are finding it increasingly difficult to secure this support via a direct payment due to an increasing and severe shortage of care agencies / care workers who have provided this support in the past.  Can the council then state that it will be stopping the direct payment and / or reclaim the amount that has not been used to this ‘supply side’ problem?

Thoughts on this problem

As general rule, councils can reclaim unused direct payments – but they must be able to demonstrate that they are acting reasonably and flexibly.  They must also be able to demonstrate that the care plan they developed has a ‘Plan B’ to ensure continuity of support if things change.[6]  If (as is often the case) there was no ‘contingency’ arrangements specified in the care plan, the disabled person / family could seek to offset some of the repayment claim by arguing that they have suffered because of the failure to provide; that they need to use the money flexibly (ie to purchase compensatory services –to allow them to recover from the failures); and a sum to compensate them for the stress, anxiety etc.

The law remains unaltered (for the present) so clearly the local authority will have to review the care needs with a view to identifying new ways by which the needs can be met (including paying family members if that is the only sensible option etc – see above).

.

[1] See for example, R (Limbuela) v Secretary of State for the Home Department [2005] UKHL 66 and MSS v Belgium and Greece European Court of Human Rights Application no 30696/09, judgment of 21 January 2011.
[2] [2002] EWHC 2282 (Admin), (2002) 5 CCLR 577.
[3] (2002) 34 EHRR 1285 at 1296.
[4] The Social Workers Regulations 2018 the Regulation and Inspection of Social Care (Wales) Act 2016.
[5] The British courts do not have a checkered history when it comes to holding the Government to account in relation to the exercise of their powers under emergency legislation of this kind – see for example the discussion in The Coronavirus Bill and the Emergency Powers (Defence) Act 1939.
[6] See for example complaint no 15 019 443, against Kent CC, 20 October 2016.

Coronavirus Bill Impact assessment.

My good colleague Steve Brett has drawn to my attention the Impact Assessment for the Coronavirus Bill produced by the Department of Health and Social Care.   It is an important document as it explains (among other things) the Government’s reasons (its ‘justification’) for the measures.  The document can be accessed by clicking here – and in relation to social care, the key pages are 20 / 21.  ‘Stand out’ extracts include:

  1. These changes to the Care Act 2014 would only be triggered if the spread of coronavirus was such that the Secretary of State considered LAs to be at imminent risk of failing to fulfil their duties under the Care Act 2014 and would be deactivated at the conclusion of the emergency period. Even during the operation of these changes, LAs would still be expected to continue meeting all of their duties under the Act if they are able to do so. …
  2. 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. ….
  3. 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.
  4. These provisions, which would only be brought into operation for the shortest possible time at the peak of the coronavirus outbreak. Without these provisions, LAs would be constrained by existing assessments, which could result in them maintaining these at the expense of new, more urgent needs, or prevent them from allocating scarce support purely on the basis of severity of need. Such decisions could be inhibited by the fear of legal challenge under the Care Act
  5. These provisions would also provide Secretary of State with a power to direct LAs to comply with Government guidance regarding the principles they should follow when prioritising care.

The Coronavirus Bill and the Emergency Powers (Defence) Act 1939.

When trying to make sense of the Coronavirus Bill – we should keep in mind the dissenting opinion of Lord Atkin in Liversidge v Anderson [1942] AC 206. It was a case heard at the height of the Second World War and concerned the extent of the emergency powers vested in the Executive. Lord Atkin was a lone rational voice in defence of the rule of law. It is an outstanding speech, citing (among much else) Cicero and Lewis Carroll and contains the following memorable lines:

  • In this country, amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace:
  • I view with apprehension the attitude of judges who on a mere question of construction when face to face with claims involving the liberty of the subject show themselves more executive minded than the executive;
  • It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law.
  • In this case I have listened to arguments which might have been addressed acceptably to the Court of King’s Bench in the time of Charles I.

Lord Atkin was (at the time) castigated for his outspoken condemnation of the misuse of the Emergency powers – in much the same way as Baroness Hale was castigated for her dissenting opinion in R (MacDonald) v. Kensington and Chelsea [2011] UKSC 33. History has however vindicated Lord Atkin as inevitably it must (in time) vindicate Baroness Hale.

Emergency powers may be necessary but their interpretation and their application must be rational and they must – so far as is humanly possible – respect fundamental rights. Severing the rights of disabled people and their carers to basic services – cutting them adrift from vital support for such needs as washing, hygiene, feeding, social contact and the like – is something that none of us should tolerate, and not simply because it makes no economic sense and will inevitably put yet further strain on our front line emergency services.

 

The Coronavirus Bill, social care & SEN

 

The Government has published the Coronavirus Bill.  It is the most draconian legislation enacted since the Second World War and suspends a whole raft of legislative duties – not least in relation to health, social care, social security and education.

The Bill can be accessed by clicking here and the Explanatory Notes to the Bill can be accessed by clicking here.

The following very brief note provides a snap shot overview of the Bill’s provisions in social care and education in England and Wales.  References to page numbers – are to pages of the Bill.  It is a long Bill with 322 pages including 27 Schedules.

 

Overview and duration

The Explanatory Notes (at para 6) make clear that this is only one part of the legislative response to the threat posed by the virus and that:

These are extraordinary measures that do not apply in normal circumstances. For this reason, the legislation will be time-limited for two years and it is neither necessary nor appropriate for all of these measures come into force immediately.

The two year period is specified in clause 75 of the Bill [page 45].

 

Social Care

Schedule 11 of the Bill [pages 111 – 122] effectively suspends / downgrades almost all adult social care duties (including charging duties).  As the Explanatory Notes (at para 175) explain, the various duties to assess and meet eligible needs of adults and carers in the Care Act 2014 and adults, young people and carers in the Social Services and Well-being (Wales) Act 2014 (SSWWA) are downgraded to powers.

A duty to meet needs will only arise in England if a failure to provide care and / or support would be a ‘breach of an individual’s human rights’.  In Wales a duty only arises where a failure to do so would mean that the individual may be experiencing or at risk of abuse or neglect.

A briefing note prepared by the barristers chambers at 11KBW expressing significant concern about the concerning the suspension of key social care provisions – can be accessed by clicking here.

 

NHS Continuing Healthcare duties – England only

Clause 13 of the Bill [page 7] is explained by paras 172 – 173 of the Explanatory Notes: namely that it applies to ‘the procedure for discharge from an acute hospital setting for those with a social care need’ and that it allows NHS providers to delay undertaking the NHS Continuing Healthcare assessments – and that ‘pending that assessment, the patient will continue to receive NHS care’.

 

Education

Schedule 16 of the Bill [page 158 – 181] provides the Secretary of State / the Welsh Ministers with powers to issue directions suspending school provision and attendance duties and downgrades local authority education law duties (including those relating to the provision of Special Education Needs) to obligations ‘to use reasonable endeavours to discharge’ the duty.

 

Mental Health detention

Schedule 7 Part 2 para 3 of the Bill [page 90] provides that an application by an approved mental health professional under the Mental Health Act 1983 sections 2 or 3 need only be founded on the recommendation by a single registered medical practitioner.

 

Government guidance

English Government guidance concerning coronavirus implications for residential care, supported living and home care support can be accessed by clicking here.  SCIE (the Social Care Institute for Excellence) has a general webpage with updated information concerning coronavirus related social care developments – accessible by clicking here.

 

Disabled children, their carers and Coronavirus

During the current emergency we must not allow disabled young people and their carers to be pushed to the back of the health and social care queue.

A campaign has been launched by Rachel Adam-Smith to urge the Health Secretary and the Prime Minister to put in place a plan for younger people with health difficulties.

For a news item on the campaign – click here and for details of a ‘Letter Before Action’ that has been issued requiring the development of a strategy for ‘meeting the needs of younger disabled people (children and working age adults) in the context of the current pandemic’ – click here.

The disabled children’s charity Cerebra and the Disability Law Service are the latest charities to confirm their support for this campaign.

Is ‘indignation’ old fashioned?

“Mrs X is a disabled pensioner who lives alone in rented accommodation. She was born with cerebral palsy, has no sight in one eye and has had two strokes. She also has asthma and bronchiectasis which cause shortness of breath. These conditions limit her mobility and restrict her range of movement. She says she sometimes loses consciousness and has falls in the home. She is prone to bladder infections and uses incontinence pads.”

This is the scene setting paragraph of a recent ombudsman’s report.[1]

Despite there being no change in her needs the council reduced her care package, and then back dated the reduction for four months.  This meant that she had no money in her direct payment account to pay her care assistants.  The council also failed to provide her with a copy of her revised package.

The ombudsman in his report finds ‘across the board’ maladministration – that:

  • the care package reduction was driven by the Council’s wish to reduce the cost of the package rather than any identified change in Mrs X’s care and support needs;
  • the funding Panel gave the social worker a clear direction to reduce the length of the home care visits;
  • that Mrs X was not given an opportunity to express her views on the proposed reduction in hours and the social worker did not try to seek her agreement;
  • the reductions were arbitrary – being based on no concrete evidence.

 

Sadly it appears that arbitrary reductions of care packages are now commonplace – and that only those who manage to cope with the delay and the barriers that litter the complaints processes, have the prospect of having these injustices acknowledged.

If this were a court judgment (and not an ombudsman report) one would have expected the judge to lambast the local authority for its disregard of the law and its breath-taking insensitivity to the needs of the complainant.  The ombudsman for some reason doesn’t do ‘indignation’: the report finds ‘fault’ and that is about it.

Maybe indignation and admonishment are old fashioned – and the focus of reports should be to inform councils of their ‘faults’ and to assume these faults were innocent mistakes.  Maybe – but maybe in cases such as this, social justice requires a public expression of shock: of shock on behalf of Mrs X and also on behalf of those of us who find the facts of this case shaming.

.
[1] Complaint no 19 001 770 against Walsall MBC, 2 December 2019.

.

No such word as ‘can’t’

All too often disabled people and families are told that a local authority can’t meet a particular support need because (for example) it can’t find anyone (or any organisation) willing or able to meet the need. Classically this may be a respite care service for a young person with very high support needs – but it can also be support that is needed in the evenings or at weekends etc etc.

In the Cerebra ‘Accessing Public Services Toolkit’ we provide nine categories of ‘commonly occurring problems’ and ‘there is no such word as ‘can’t’’ is one of these.

Local authorities must do everything reasonable to meet an eligible need and they cannot refuse to meet a need an eligible need on cost grounds (cost is only relevant when they have more than one way of meeting a need). So if, for example, a disabled young person has been assessed as needing a number of episodes of respite care – then the authority is under a duty to find a way of meeting that need.

Where the local authority states that no such support can be found in its area – it is often worth asking the rhetorical question “If a wealthy person had this problem would they have been able to secure this support service?” The answer will almost invariably be yes, and of course, the local authority has substantially more resources available to it than most wealthy people (and is also under a statutory duty to meet need of this kind).

Where a local authority is saying it can’t meet a need – it should be asked what it has done to try and identify a suitable provider. How many providers has it contacted? How many of them offered to meet the need but had their offer refused on cost grounds? Has it offered to increase what it pays (ie to a provider or by paying a higher direct payment rate)? Has the authority placed advertisements inviting prospective providers to come forward? Has the authority considered employing someone specially to meet the need? Has the authority considered an imaginative personal budget arrangement? Has the authority considered appointing an agent who whose sole job is to identify and secure support services to meet the assessed need? And so on.  Also of great importance – has the authority kept you fully informed and involved throughout?

Legally once a need has been identified as an eligible need the authority is under a duty to meet that need and under a duty to take all reasonable steps to secure that the support is provided without delay. It is demonstrably unreasonable (and indeed unlawful) for a local authority to point to a supply-side problem and then say “there is nothing more we can do”. Local authorities are under a statutory duty manage their local care markets to ensure that there is are sufficient care and support services to meet need in their areas.

When confronted by this problem a disabled person or family should ask the local authority to state – within a short period – exactly what it has done in order to identify suitable care and support to meet the eligible need (it may also be useful to make a data subject request – see www.lukeclements.co.uk/resources/data-protection-making-requests/). If it fails to provide adequate evidence then a complaint will normally be necessary: not only about the failure to provide the relevant care / support – but also the failure to take reasonable steps to secure its provision.

 

The Queen’s Speech

Social care reform

My ministers will seek cross-party consensus on proposals for long term reform of social care. They will ensure that the social care system provides everyone with the dignity and security they deserve and that no one who needs care has to sell their home to pay for it.”[1]

 

There is already a duty to promote dignity and security (Care Act 2014 section 1); already a right not to have to sell your home in order to pay for care (ie a deferred payment – Care Act 2014 sections 34-36); and the last time a Government tried to seek a cross-party consensus on sensible proposals for reform (2010), they were torpedoed by the party of the current Government.[2]

 

Principle

Necessary social care support should be provided free at the point of need.  All the arguments for (and against) a free at the point of need NHS apply with equal force to social care.  ‘Free at the point of need’ social care was the reform recommended by the 1999 Royal Commission.[3] For a recent update on the feasibility of this approach – see the 2019 report of the Institute for Public Policy Research. [4]

 

Provision

The New Economics Foundation (NEF) has published an important paper entitled Ownership in Social Care.[5]  It highlights a key social care reform challenge – namely:

to move away from short-termist, cost-driven competitive tendering towards public-social partnerships between the state and diverse, decentralised providers with ownership structures that enable people to have a greater stake and control over the care that is provided.

The reforms of social care that took effect in 1993 may have been intended to privatise social care but at least they spoke of a ‘mixed economy’:[6] a mixture of public and private care provision.  In the succeeding years the ‘public’ element has dwindled to the point that (as the NEF report makes clear) social care services in England are almost entirely outsourced – very often to ‘chain companies with an ownership model that concentrates power among shareholders’.[7]

One hears so much about the innovation of private businesses – but in reality in this sector it has been the innovation of debt and tax leverage, offshoring and ‘sweating the labour’ – in terms of wage reductions, zero hours contracts and electronic monitoring.[8]  NEF characterises social care in much of England as ‘extractive’ – driving inequality through low-paid, insecure jobs, and putting downward pressure on the quality of care.   Low wages, poor terms and conditions result in high staff turnover which is almost three times higher for private providers than public ones.[9] One of the most often heard complaints by disabled people and their families about the quality of care concerns constant changes in the care assistants delivering the care.

NEF presents an alternative vision – ‘shifting to more co-operative models in which services are owned and run by employees and / or people receiving support and their families’ and where there is a ‘much more significant role for local authorities, as public bodies that are democratically accountable to their local communities’.  Social care funding should benefit the local economy: should support secure, decent, well-paid work with the profits remaining locally – supporting disabled people, the providers of care and in consequence the local economy itself.  The NEF report is important and deserves reading / adopting.[10]

 

Paying for it

The Labour Government’s 2010 proposals to raise extra social care funding via an increase in inheritance tax represented (and continues to represent) a sensible way of finding additional funds needed to cover a long-term care settlement.  The funding required is relatively modest (an increase of less than 1 per cent of total government expenditure[11]) – and pales into the far distance the moment one hears mention of HS2.  It should also be remembered that 20 years ago Scotland embarked on a programme to make social care free at the point of need and this has proved to be a generally popular policy.  20 years ago a Royal Commission also came up with the same suggestion.[12]

Funding some of the additional costs through the medium of inheritance tax has the merit of pooling risk among those with significant estates and avoids the current system which Andrew Dilnot (who chaired one of the formal social care funding reviews – in 2011[13]) has condemned as ‘the most pernicious means-test in the whole of the British welfare state’.[14] Although there is much hype about inheritance tax being the UK’s most hated tax[15] one has to wonder if this has any basis (or any rational basis).  Taxing the dead seems to be a more attractive option than the alternatives and it is a tax that only kicks in for individual estates over £325,000 (and £650,000 for a married couple[16]) and even then the beneficiary retains 60% of the surplus.

And to close – a quiz question. 

“How many estates pay inheritance tax each year?” See footnote for the answer.[17]

 

For previous posting on social care reform see:

.
[1] Prime Minister’s Office The Queen’s Speech 2019 19 December 2019  p.37
[2] Nicholas Watt Spectre of ‘death tax’ haunts Andy Burnham’s care revolution Guardian 30 Mar 2010.
[3] The Royal Commission on Long Term Care With Respect to Old Age: Long Term Care Rights and Responsibilities [Chairman: Professor Sir Stewart Sutherland] Cm 4192-I  (The Stationery Office 1999)
[4] Harry Quilter-Pinner and Dean Hochlaf Social Care: Free at the Point of Need (Institute for Public Policy Research 2019) p.4 and only marginally more expensive (£2 billion in 2030) than the Conservative party’s 2017 election pledge of a cap and floor system.
[5] Daniel Button and Sarah Bedford Ownership in Social Care (New Economics Foundation 2020).
[6] Department of Health Caring for People: Community Care in the Next Decade and Beyond Cm 849 (Stationery Office 1989).
[7] See for example D Burns et al Where does the money go? Financialised chains and the crisis in residential care CRESC Public Interest Report March 2016.
[8] See for example UNISON Suffering along at home: A UNISON report on the lack of time in our homecare system (2017) and L.J.B. Hayes ‘Work-time Technology and Unpaid Labour in Paid Care Work: A Socio-legal Analysis of Employment Contracts and Electronic Monitoring’ (chapter 9) in Sian Beynon-Jones & Emily Grabham (eds) Law and Time (Routledge 2018) pp. 179-195.
[9] J Dromey and D Hochlaf Fair Care: A workforce strategy for social care (IPPR 2018).
[10] As does Reclaim Social Care Taking Private Social Care Provision Back into the Public Sector (2019).
[11] Harry Quilter-Pinner and Dean Hochlaf Social Care: Free at the Point of Need (Institute for Public Policy Research 2019) p.4. and only marginally more expensive (£2 billion in 2030) than the Conservative party’s 2017 election pledge of a cap and floor system. There would of course be substantial savings to the NHS budget – see ADASS Sort out social care, for all, once and for all (ADASS 2019) points out that investment in social care reduces pressures on the NHS due to the preventative nature of much of the work of care as well as benefiting the economy.
[12] The Royal Commission on Long Term Care With Respect to Old Age: Long Term Care Rights and Responsibilities [Chairman: Professor Sir Stewart Sutherland] Cm 4192-I  (The Stationery Office 1999)
[13] Commission on Funding of Care and Support Fairer Care Funding (2011).
[14] Amelia Hill Social care reviewer condemns UK system and calls for new tax Guardian 6th April 2017.
[15] See for example E Agyemang  Inheritance tax: what does the future hold? Financial Times July 11 2019.
[16] If the first person to die leaves their entire estate to their partner.
[17] Very few people are currently within the scope of Inheritance Tax, with fewer than 25,000 estates being liable each year. This is less than 5% of all deaths, even though ten times as many estates need to complete and submit forms (out of 590,000 deaths) – see Office of Tax Simplification Inheritance Tax Review –second report: Simplifying the design of Inheritance Tax July 2019 p.4.

.

NHS Personal Health Budgets: new rights and new guidance

NHS England has issued new guidance to coincide with the extension[1] of the right to a Personal Health Budget (PHB) to cover people eligible for section 117 Mental Health Act 1983 after-care support as well as for people in need of wheelchair services.  These new rights came into force on 2 December 2019.  The 27 page guidance (NHS England Personalised Care:  Guidance on the legal rights to have personal health budgets and personal wheelchair budgets (2019)) can be accessed by clicking here.

A right to have a PHB (which can be paid as Direct Payments) now exists in England for:

  • Adults eligible for NHS Continuing Healthcare funding (NHS CHC);
  • People eligible for after-care services under section 117 of the Mental Health Act 1983;
  • People assessed as in need of a wheelchair (for more than short-term use); and
  • Children and young people eligible for NHS funded continuing care.

The guidance states that there are six key features of a PHB ‘that ensure people experience the best outcomes possible’.  These are that a person should:

Be central in developing their personalised care and support plan and agree who is involved;

  • Be able to agree the health and wellbeing outcomes (and learning outcomes for children and young people with education, health and care plans) they want to achieve, in dialogue with relevant health, education and social care professionals;
  • Know upfront an indication of how much money they have available for healthcare and support;
  • Have enough money in the budget to meet the health and wellbeing needs and outcomes agreed in the personalised care and support plan;
  • Have the option to manage the money as a direct payment, a notional budget, a third-party budget or a mix of these approaches;
  • Be able to use the money to meet their outcomes in ways and at times that make sense to them, as agreed in their personalised care and support plan.

 

Importantly the guidance stresses that

Any agreed budget must be sufficient to ensure the health and wellbeing outcomes required for a person can be realistically met. For example, if a CCG decides, when planning a personal health budget, to release money based on a monetary valuation of a person’s expected quantity of continence products as would have been provided by the NHS, they must be satisfied that this amount is sufficient to enable the purchase of the products in the open retail market so as to meet someone’s identified continence needs. An exception to this is the provision of wheelchairs. For personal wheelchair budgets holders, this right to have does not affect the existing ability to add to the cost of the wheelchair of their choice.

The guidance concerning the working of the new scheme for wheelchairs is brief – but includes (page 16):

For personal wheelchair budgets the amount in the budget should be based upon what it would cost the NHS to meet the person’s assessed postural and mobility needs via the wheelchair service currently commissioned by their CCG. The introduction of personal wheelchair budgets builds upon the existing regulatory framework which enables people to contribute to the cost of a wheelchair. For people who have additional health and social care needs, the personal wheelchair budget can be pooled with funding from other statutory services (if this is agreed as meeting the person’s assessed needs by all services and is cost effective). With personal wheelchair budgets, people can also choose to access non-statutory funding that may be available via voluntary, charitable organisations both nationally and locally.

 

And at page 17:

For personal wheelchair budgets, manual, powered chairs and specialist buggies are included. CCGs need to consider repair and maintenance and how this will either be supported by existing services or made available as part of a personal wheelchair budget. CCGs need to consider specialist seating and pressure-relieving equipment as it remains a statutory duty to provide these, either as part of a personal wheelchair budget or via existing commissioned services. Decisions on how these are provided will need to be made locally on a case by case basis, based on clinical assessments.

.

[1] By amendment of the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012, reg 32A.

NHS Continuing Healthcare statistics

The latest NHS CHC statistics for England show a small increase in overall numbers of people eligible for funding – up from 55,872 at the end of June to 57,016 in September (the figure stood was 63,000 in December 2014). Fast-track funding is now almost 36% of this total.

During the same period the number of NHS overnight beds in England fell by 1,396 to 127,225 (the figure was 134,573 in December 2014).

This means that in the last five years the number of people eligible for NHS CHC has fallen by 5,984 (9.5%) and the number of NHS beds has fallen by 7,348 (5.5%).