The Coronavirus (CV) Act 2020 which took legal effect on 31st March, having been produced in a matter of days, has serious implications for those in receipt of, or those yet to access, adult social care support.
The Act introduced Care Act easements, which, in effect, downgrade a number of Care Act duties to powers. This means that the You Must or You Will of a duty become the You May or You Can of a power. The guidance issued alongside the Act (Care Act easements: guidance for local authorities, updated 1st September, 2020) states that these easements should only be introduced when the workforce is significantly depleted, or demand on social care increased, to an extent when it is no longer reasonably practicable for it to comply with its Care Act duties.
The easements have to be formally adopted and the decision reported to the Department of Health and Social Care.
LAs are not prevented from doing anything they do currently but, where the easements are adopted, that authority is no longer required to do what they normally do.
What the powers actually change:
- – Local Authorities will not have to carry out detailed assessments of people’s care and support needs in compliance with pre-amendment Care Act requirements.
There is the power to assess in every case.
- – Local Authorities will not have to carry out financial assessments in compliance with pre-amendment Care Act requirements.
- – Local Authorities will not have to prepare or review care and support plans in line with the pre-amendment Care Act requirements
If a care and support plan is reviewed, there remains a duty to involve the person concerned.
- – The duties on Local Authorities to meet eligible care and support needs, or the support needs of a carer, are replaced with a power to meet needs.
This applies unless the LA considers that the failure to meet needs would result in a breach of a Convention right. There is the power to meet needs in every case.
There are 4 stages identified, namely:
|Stage 1: Operating under the pre-amendment Care Act||Business as usual|
|Stage 2: Applying flexibilities under the pre-amendment Care Act||Decision for Individual service type to prioritise short-term allocation of care and support using current flexibilities within the Care Act|
|Stage 3: Streamlining services under Care Act easements||Decision to operate under Care Act easements as laid out by the Coronavirus Act|
|Stage 4: Prioritisation under Care Act easements||Whole system prioritising care and support|
Stages 3 and 4 operate under the easements.
The guidance also states that Local authorities will be expected to observe the ethical framework for adult social care (DHSC: Responding to COVID-19, the ethical framework for Adult Social Care – Values and Principles). This framework provides a structure for local authorities to measure their decisions against and reinforces that the needs and wellbeing of individuals should be central to decision-making. In particular, it should underpin challenging decisions about the prioritisation of resources where they are most needed.
The values and principles are as follows:
- Respect – This principle is defined as recognising that every person and their human rights, personal choices, safety and dignity matters
- Reasonableness – This principle is defined as ensuring that decisions are rational, fair, practical, and grounded in appropriate processes, available evidence and a clear justification.
- Minimising harm – This principle is defined as striving to reduce the amount of physical, psychological, social and economic harm that the outbreak might cause to individuals and communities. In turn, this involves ensuring that individual organisations and society as a whole cope with and recover from it to their best ability.
- Inclusiveness – This principle is defined as ensuring that people are given a fair opportunity to understand situations, be included in decisions that affect them, and offer their views and challenge. In turn, decisions and actions should aim to minimise inequalities as much as possible.
- Accountability -This principle is defined as holding people, and ourselves, to account for how and which decisions are made. In turn, this requires being transparent about why decisions are made and who is responsible for making and communicating them.
- Flexibility – This principle is defined as being responsive, able, and willing to adapt when faced with changed or new circumstances. It is vital that this principle is applied to the health and care workforce and wider sector, to facilitate agile and collaborative working.
- Proportionality – This principle is defined as providing support that is proportional to needs and abilities of people, communities and staff, and the benefits and risks that are identified through decision-making processes.
- Community – This principle is defined as a commitment to get through the outbreak together by supporting one another and strengthening our communities to the best of our ability.
Alongside the framework, local authorities should also continue to respect the principles of personalisation and co-production.
Provisions not modified by the CV Act include the well-being duty, the market shaping duty, duties in relation to advocacy and safeguarding duties.
In total, just eight of the 151 English councils with social services responsibility have made use of the easements, and only two of these, Derbyshire and Solihull, have used it to cease meeting needs they were required to meet. (Source: Community Care 6th July).
Of those councils operating the easements, most were operating under stage 3 of the easements by not fulfilling their duties to carry out assessments, reviews or care and support planning.
Specifically, Birmingham said it was streamlining processes under stage 3 of the easements while continuing to provide care and support to people with eligible needs. It said this involved not providing hard copies of assessments or care and support plans to people and limiting choices of providers
Coventry was carrying out less detailed assessments because of the need to carry out virtually all of them remotely, doing less detailed care and support plans and not undertaking scheduled reviews. It said its workforce had not been depleted, nor had demand increased to the extent that it needed to enact stage 4 but, if it had to, it would contact people with lower-level needs to see what the impact of a reduction in care would be.
Warwickshire had developed a streamlined assessment and support planning process, for practitioners to use when they cannot use normal processes, and suspended some scheduled reviews because of the barriers to seeing people due to social distancing
By early July, no council was left suspending its duties. The Act is due to stay in force for two years, but MPs can vote to remove provisions of the act at six-monthly intervals, with ministers required to oblige. The first such vote should take place this month. Given the current increase in cases, we may well see more authorities adopt these easements as we head towards winter.
Helena Cava, September, 2020
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