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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.