Story updated 3 April 2020
The government has given principal social workers a critical role in determining whether councils should suspend Care Act duties to deal with extreme pressures created by the coronavirus crisis.
The Coronavirus Act 2020, passed at great speed last week, allows authorities to suspend many of their Care Act duties – including those to assess and to meet unmet eligible needs – and the temporary provisions came into force yesterday.
Government guidance on the so-called ‘Care Act easements’ said they were designed to enable authorities to “prioritise the most pressing needs” among those they would normally be under a legal duty should Covid-19 bring about a full-blown resource crisis.
“A local authority should only take a decision to begin exercising the Care Act easements when the workforce is significantly depleted, or demand on social care increased, to an extent that it is no longer reasonably practicable for it to comply with its Care Act duties (as they stand prior to amendment by the Coronavirus Act) and where to continue to try to do so is likely to result in urgent or acute needs not being met, potentially risking life,” said the guidance, which councils must have regard to in their decision making.
Critical role for PSWs
The guidance emphasises the importance of “professional oversight” in decisions to suspend Care Act duties and said the PSWs’ role was critical.
“Social care varies greatly across local authorities and the decision to operate the easements should be taken locally. It should be agreed by the director of adult social services in conjunction with or on the recommendation of the principal social worker.”
The guidance sets out a four-stage decision-making process for councils in using the easements, though makes clear that these need not follow sequentially, with some of the stages being operated in tandem:
- Operating the Care Act in full for as long as possible.
- Using flexibilities under the Care Act to prioritise care and support. The guidance cites a case where certain types of service need to be changed, delayed or cancelled because of staff absence. The relevant senior manager would then need to consult the PSW setting out the reasoning and impact of the decision and how alternative sources of care and support can be sourced for the affected people. If the PSW agrees, the decision should then be referred to the director of adult social services (DASS) for a final decision.
- Streamlining services using the Care Act easements. The guidance says that when pressures mount to the point that it is no longer possible to meet Care Act duties in full, then councils should consider taking advantage of the Coronavirus Act’s provisions to suspend assessments, care planning, eligibility and reviews. In deciding to take this step, senior managers should consult the PSW, making clear the reasons for doing so and the impact this would have on people who need support and carers. If the PSW is satisfied that the Care Act easements need to be adopted, then a meeting of senior management should be called to make a final decision. The council should also notify the Department of Health and Social Care (DHSC).
- Whole-system prioritisation of care and support. The final step would involve reallocating resources between people and different service types to ensure the most urgent needs would be met. This is likely to involve use of the provision in the Coronavirus Act that suspends councils’ duty to meet unmet eligible needs under section 18 of the act, other than when this would involve a human rights breach. Again the decision should be referred to the PSW, who should call an emergency meeting, involving the director of adult social services, to make a final decision. If it takes this step, the council should review it every two weeks with the PSW, and return to the provision of a full service as soon as reasonably possible. The DHSC should also be notified.
‘Upholding social work values’
In response to the guidance, Adult Principal Social Worker Network co-chair Bev Latania said: “My view is that it’s great to have the PSW role recognised as a senior leader who is in place to support the workforce and uphold standards within adult social care.
“The PSW must be consulted and part of the decision making process to enact the easement, shows the value of the role, the power and responsibility a PSW can bring to ensure excellent practice, uphold social work values and maintain good outcomes for citizens, ensuring they are safe and free from harm as far it is practicable.”
Responding to the guidance on Twitter, Association of Directors of Adult Social Services vice-president James Bullion made clear that the use of the easements should be a last resort.
The Care Act guidance on suspending its operation are published. It must be a last resort, and be carefully considered. People fought long and hard for self direction and control, prevention justice and equality. Our colleagues at @TLAP1 should help us monitor the impact @1adass
— James Bullion (@JamesBullion) April 1, 2020
The guidance makes clear that the Coronavirus Act does not affect the duties on councils under the Care Act to promote individual wellbeing, to provide preventive services and information and advice and to make safeguarding enquiries where a person with care and support needs is at risk of abuse or neglect and unable to protect themselves.
It also says that councils should apply the ethical framework for adult social care, published last month, in the way they make decisions during the pandemic, including around use of the easements. Like the new guidance, councils must have regard to the framework by law, and there is provision within the Coronavirus Act for the government to direct compliance with both.
Among the points made in the framework are that organisations should:
- strive to support people to get what they are entitled to, subject to available resources, ensuring that there is a fair judgement and clear justification for any decisions made on prioritisation;
- be transparent and have a clear justification when it is decided to treat a person or group in a different manner than others, that which shows why it is fair to do so;
- provide people with as much opportunity as possible to challenge decisions that affect them in the time that is available;
- provide an environment in which staff can work safely, effectively and collaboratively, which protects their health and wellbeing as the outbreak develops;
- provide appropriate guidance and support to staff who may be asked to work outside of their normal area of expertise or be unable to carry out some of their daily activities;
- have locally-agreed processes in place to handle ethical challenges during and in the aftermath of the outbreak.
What the Care Act changes mean for practice
- Needs assessments: councils will not have to carry out assessments of people’s care and support needs (or support needs, in the case of), on the appearance of need, as required by sections 9 (for adults), 10 (for adult carers), 58-59 (young people), 60-61 (carers of young people) and 63-64 (young carers). However, the guidance says 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, and should continue to carry out assessments through the emergency period, though without being under a duty to do so. Authorities should also consider alternatives to face-to-face assessments by council practitioners, including supported self-assessments by people or carers, telephone assessments or those carried out by external organisations or professionals.
- Financial assessments: councils will not have to carry out financial assessments under section 17 of the Care Act. But they will be able 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.
- Care planning and review: authorities will also not have to prepare or review care and support plans/support plans under sections 24, 25 and 27 of the act. However, councils should gather and provide sufficient information to potential providers to allow them to make an informed decision as to whether they can meet people’s needs and comply with their own legal obligations, and enable them to draw up their own care plans.
- Meeting needs: councils’ duty to meet unmet eligible needs under section 18 of the Care Act has been scaled that such as it only applies when the authority in question considers it necessary to avoid a breach of the person’s rights under the European Convention on Human Rights. The guidance says that councils will still be expected to take all reasonable steps to continue to meet needs.