The Care Act easements, under the Coronavirus Act 2020, give local authorities assistance in prioritising care needs despite mounting pressures.

What is the purpose of the easements?

"The Government must clarify this guidance to ensure thousands of autistic adults and other disabled people don’t go without basic support during this crisis".

Paid and unpaid carer sickness, stringent self-isolation measures, and increased personal caring commitments make for a depleting social care workforce.

Whilst Local Authorities must do all they can to continue providing pre-existing care commitments, the easements allows them to prioritise those with the most urgent and acute needs to ensure smooth service delivery. The powers in the Act enable them to prioritise more effectively where necessary than would be possible under the Care Act 2014 prior to its amendment. These measures are time-limited and are there to be used as narrowly as possible.

What do these powers actually change?

The changes fall into four key categories, each applicable for the period the powers are in force:

Needs assessments

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. However, they will still be expected to respond as soon as possible (within a timeframe that would not jeopardise an individual’s human rights) to requests for care and support, consider the needs and wishes of people needing care and their family and carers, and make an assessment of what care needs to be provided. 

These include, for example, the right to life under Article 2 of the European Convention of Human Rights, the right to freedom from inhuman and degrading treatment under Article 3 and the right to private and family life under Article 8.

The easements also relieve Local Authorities of the duty to undertake assessments of children transitioning to adult social care under sections 58 and 59 of the Care Act.

It may not be possible or necessary for assessments themselves to be face-to-face. Local Authorities should therefore consider whether assessments could be delivered through other means, taking into consideration people’s cognitive and communication needs and mental capacity, including over the phone, through a trusted third-party, or through self-assessment tools. 

Financial assessments

Local Authorities will not have to carry out financial assessments in compliance with pre-amendment Care Act requirements. They will, however, have powers to charge people retrospectively for the care and support they receive during this period, subject to giving reasonable information in advance about this, and a later financial assessment. This will ensure fairness between people already receiving care and support before this period, and people entering the care and support system during this period.

None of the fundamental principles underpinning the Care Act statutory guidance on charging and financial assessment are removed or diluted. Therefore, if people are charged retrospectively, this should be on the basis of a financial assessment in line with the Care Act and on the basis that people should pay what they can afford, and any charges are clear and transparent.

Local Authorities should always ensure there is sufficient information and advice available in suitable formats to help people understand any financial contributions they are asked to make, including signposting to sources of independent financial information and advice. Local Authorities are always expected, where appropriate, to consult and engage with family members and/or someone who has legal authority to make financial decisions on behalf of people who lack capacity.

Care plan reviews

Local Authorities will not have to prepare or review care and support plans in line with the pre-amendment Care Act provisions. They will however still be expected to carry out proportionate, person-centred care planning which provides sufficient information to all concerned, particularly those providing care and support, often at short notice. Where they choose to revise plans, they must also continue to involve users and carers in any such revision.

Social care and support needs should still be assessed throughout this period and Local Authorities should make a written record of this assessment. Principal Social Workers should ensure that proportionate professional recording is maintained and may consider a single alternate document for local use.

Prioritising needs

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. Local Authorities will still be expected to take all reasonable steps to continue to meet needs as now. In the event that they are unable to do so, the powers will enable them to prioritise the most pressing needs, for example enhanced support for people who are ill or self-isolating, and to temporarily delay or reduce other care provision.

In the first instance Local Authorities would consider those care packages which are already mapped and noted as high and moderate. Prioritising individual care may be fluid, as risk and need levels may fluctuate. New information such as unpaid carer involvement or whether people have now become unwell with COVID-19 will need to be considered.

The Department does not propose to advise local areas on how to prioritise as methods of prioritisation will be unique to each area. The Department also recognises that there will already be well established methods of prioritising in most areas.

As set out in the guidance and Ethical Framework for Adult Social Care, Local Authorities must retain an approach to working with individuals and carers in a personalised and effective way, ensuring they are engaged in this process as much as possible.

Local Authorities should take into account all elements of a person’s life that may impact on their needs and their personal circumstances. These circumstances can include social issues such as domestic abuse, financial issues, and the vital support of unpaid carers which may not be appropriate or sustainable as a single support in this current climate. Local Authorities should also understand what resources, assets/offers the person has at their disposal – including knowledge of and access to forms of community and neighbourhood support.

What about DoLS?

Duties in the Mental Capacity Act 2005 relating to Deprivation of Liberty Safeguards (DoLS) remain in place. Guidance on the operation of DoLS during this period will be published separately.

Duties imposed under the Equality Act 2010 also remain, including duties to make reasonable adjustments, the Public Sector Equality Duty and duties towards people with protected characteristics. These should underpin any decisions made with regard to the care and support someone receives during this period

Caroline Stevens, Chief Executive of the National Autistic Society, said:

“This new guidance could create a situation which no one wants for our country. It could mean thousands of people, including autistic adults, not getting the support they need to live safely.

“The Government had promised councils would only be able to reduce or even stop supporting people in critical circumstances. But this guidance doesn’t make this threshold clear enough, and we’re worried that many more people could lose out as a result. When these powers are “turned on” the guidance fails to explain how councils should prioritise care to the most vulnerable, including many autistic people. This could leave decisions about thousands of people’s support down to a postcode lottery.

“This couldn’t be more important to get right. These are vital decisions that affect how people are able to live safely. The Government must clarify this guidance to ensure thousands of autistic adults and other disabled people don’t go without basic support during this crisis. It must also do all it can to prevent councils from needing to make these decisions, by continuing to guarantee they have enough money to keep the social care system afloat. Now, more than ever, autistic people and their families need the Government’s support". 

Rhidian Hughes, Chief Executive of the Voluntary Organisations Disability Group (VODG), said
“As a country we are facing an unprecedented crisis and of course the government must take the necessary steps to protect all citizens. However, this must not be at the expense of disabled people’s hard won rights and entitlements. The Care Act easements must be used as a last resort, temporarily, and with a clear end point.
"Local authorities must also be transparent about the use of 'eased' approaches and there has to be mechanisms put in place to monitor how the easements are being used across the country in order to ensure the rights and entitlements of people in vulnerable circumstances do not become a casualty of the Coronavirus crisis." 

 

 

Read the full document here

The Department of Health and Social Care were approached for comment.