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 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:
- Stephen Knafler / Landmark Chambers – to access the commentary click here.
- 11 Kings Bench Walk Chambers’ – to access the commentary click here.
- Belinda Schwehr of CASCAIDr’s commentary – can be accessed by clicking here.
- Phillip Mitchell of BASW Cymru – to access the commentary click here.
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
The ‘breach of human rights’ limitation already applies to some people subject to immigration control and has been interpreted harshly by courts. In relation to English citizens, R (Bernard) v Enfield LBC 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, 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.
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 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’.
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.
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.
- 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
- 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
- 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
- a commitment to get through the outbreak together by supporting one another and strengthening our communities to the best of our ability … .
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. 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. 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).