Eight councils have triggered Care Act duty moratorium in month since emergency law came into force

Authorities in Midlands and North East using Coronavirus Act provisions to halt assessments and reviews and prioritise care and support

Care Act front page
The BASW proposals would likely require changes to the Care Act (photo: Gary Brigden)

Eight council have triggered provisions to suspend duties under the Care Act 2014 in order to manage workforce shortages and demand pressures during the Covid-19 pandemic.

Birmingham, Coventry, Derbyshire, Solihull, Staffordshire, Sunderland and Warwickshire councils are currently operating under the so-called ‘Care Act easements’; Middlesbrough used them for a week but has ceased doing so.

In most cases, the councils are operating at “stage 3” of the easements – enacted through the Coronavirus Act 2020 – by reducing care and support processes, taking advantage of the provisions relieving councils of duties to carry out needs assessments, financial assessments, care planning and reviews. However, Solihull has said it is looking to prioritise the needs of service users at higher risk by making use of the easement removing authorities’ duties to meet unmet eligible needs unless necessary to avoid a breach of human rights. Derbyshire has also indicated it may do this.

‘Last resort’

It is up to councils to decide whether to trigger the easements though they must notify the Department of Health and Social Care (DHSC) when they do so and follow DHSC guidance in taking their decision-making, as well as an ethical framework for social care practice under the pandemic. The guidance says that the easements should only be invoked when a council’s workforce is “significantly depleted” or demand is increased to the extent that “it is no longer reasonably practicable” to meet Care Act duties and trying to do so would result in urgent needs not being met, potentially risking life.

The point was echoed by interim chief social workers for adults Mark Harvey and Fran Leddra in an interview with Community Care about the general application of the easements, rather than any individual council’s decision making.

Enacting the easements is a last resort and we’ve tried to make that clear,” (Mark Harvey, interim chief social worker for adults).

“That would be when you don’t have the workforce to meet the need or because of the virus you’ve had a tenfold increase in referrals, and, because of these two circumstances you can’t meet your duties and you have to use the easements,” Harvey added.

In response to a letter sent yesterday to legal firm Bindmans, which had requested the publication of authorities who had enacted the easements, DHSC civil servants named the seven authorities who had notified the department that they were currently operating under the easements, and confirmed Middlesbrough had done so but since gone back to operating under the Care Act proper.

The identities of the authorities currently operating the easements have now been published on the Care Quality Commission’s website.

In its response to Bindmans, the DHSC Care Act easements team said work was being carried out, led by the CQC and Think Local Act Personal (TLAP), the sector partnership body which promotes personalisation of care and support, “to understand and share the impact of Covid-19 and the Care Act easements on individuals, providers and systems”. The team said the DHSC would feed in the identities of authorities who had notified it they were using the easements to this work but that this would be “underlined by principles of transparency and no criticism”.

The CQC said it would be speaking to authorities who have decided to use the easements to understand the basis of their decisions and the impact they would have on local adult social care services, using this to inform its monitoring of providers in these areas.

‘Deeply troubling’

The news that authorities were using the easements sparked concern among sector leaders about the impact of reductions in people’s care and support and a perceived lack of transparency in the way authorities had communicated their decisions to undertake the easements to citizens.

Adult Principal Social Worker Network co-chair Beverley Latania said she appreciated that councils were making “difficult decisions about what services to run and what can be reduced at this time”.

Do you have questions about the easements?

Have you got a question for Community Care Inform’s legal editor, Tim Spencer-Lane, on the Coronavirus Act 2020 or Care Act easements? We’re recording a podcast with him and you can email questions to natalie.valios@markallengroup.com by Friday 1 May or tweet them to @CCInform1.

But she added: “From a PSW point of view there is a real concern about enacting stage 4 of the easements, where services go into a critical phase and the protection and rights embedded in the Care Act is reduce significantly. The impact on reducing services overall is concerning but the real impact of not having oversight of someone care and support by limited assessments, no care and support plans, no or limited reviews and no carers support is deeply troubling.

“The Adult PSW Network is alarmed if local authorities have to go into stage 4 and how they might recovery to restart services especially with a backlog of referrals and assessments which need to be completed in a timely manner.  The Adult PSW Network is also worried about how the changes are being communicated and understood by citizens and how the rights of those citizens are being upheld.”

This point was also made by Clenton Farquaharson, chair of TLAP’s partnership board.

“Of course these are new and exceptional circumstances for all of us, but in my opinion local authorities need to communicate proactively with people who access care and support when the Care Act easements are triggered.

“Local authorities need to provide a context for their decisions. Putting a message on a website doesn’t display the necessary compassion and kindness when dealing with people who find themselves in vulnerable situations, especially through the lens of Covid-19. It’s really important that those enacting the easements are informed by the ethical framework, and stay true to the core principles of co-production and personalisation. 

“Think Local Act Personal (TLAP) plans to take on an active role in understanding the impact on people of the easements.”  

The Local Government Association said the decisions taken by the councils reflected the pressures adult social care was under. “Social care was already under significant pressure before this pandemic,” said Ian Hudspeth, chair of the LGA’s community wellbeing board.

“Councils will only enact an easement when it is impossible for them to fully meet their Care Act duties and when trying to do so may lead to some urgent or acute needs not being met.

“They will remain mindful of human rights legislation and will also observe the ethical framework on adult social care. Other Care Act duties, such as on wellbeing, prevention, information and advice, are unaffected.”

How councils are using the easements

Most of the councils concerned are operating under stage 3 of the easements by not fulfilling their duties to carry out assessments, reviews or care and support planning:

  • 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 is 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.
  • Staffordshire’s deputy leader and cabinet member for health, care and wellbeing, Alan White, said the only action it had taken so far under the easements was “deferring a very small number of Care Act assessments”, and that, if it had to enact stage 4 “this would be decided on a case-by-case basis taking into account all of the risks.”
  • Sunderland said it was operating at stage 3 but, as of last week, had not taken any action under the easements but was looking at using them “as part of prudent planning measures”.
  • Warwickshire said it 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.

Derbyshire has suggested it is planning to operate at stage 4 “to focus its resources on meeting the most serious and urgent care needs”. It said people with “lower-level needs and support and support from family, friends or the community” may be affected by changes to the length, time or frequency of home care services, as well as the suspension of certain services and changes to care workers or providers.

‘Anxious times’

In Solihull, a council meeting on 6 April approved plans to move to stage 4 at the “earliest possible opportunity” as a result of substantially increased demand due to Covid-19, including new areas of work such as helping people access money and food, and responding to queries about access to personal protective equipment, as well as workforce shortages. It said 25% of staff in the adult care and support department were off sick and 10% were self-isolating, with many of those able to work but not outside the home.

A statement from the council issued last week indicated that it had already move to stage 4 through actions to reduce the care of people identified as lower-risk.

“Our social work teams have called service users identified as low risk to discuss the impact of reducing their care packages,” a spokesperson said. “The teams have been working compassionately with people at this difficult time and have given individuals and families time to put alternative arrangements in place, including making use of support from the voluntary and community sector.  Some service users have already chosen to cancel their care packages with us because family or friends are able to provide support and this is their preference.

“We recognise that these are anxious times for service users and our social work teams will remain in regular phone contact with them…We continue to work with our care providers and are supporting them to have conversations with those clients who are affected by the impact of the easements.

“We are monitoring the situation closely so that full service can be restored as soon as is reasonably possible.”

What other authorities are doing 

Besides the authorities that are using the easements, Middlesbrough invoked the easements from 14 April to 22 April to temporarily delay some scheduled reviews as “some staff redeployment was necessary to maintain urgent critical services”, said director of adult social care and integration Erik Scollay. It is now back operating under the Care Act proper.

Read more on the Care Act easements

You can find out more about what the Care Act easements involve here. Community Care Inform Adults subscribers can read a summary and commentary on the DHSC guidance on the easements as well as a quick guide to the Coronavirus Act 2020 which provide for the easements, written by our legal editor, Tim Spencer-Lane.

Other authorities have approved use of the easements when necessary but not triggered them in practice.

Among that group is North Yorkshire, whose corporate director of health and adult services, Richard Webb, said: “We are not using Care Act easements yet. Our executive approved the powers, should we need them.

“I review the situation daily and would make a decision with the chief executive, in consultation with executive members, and on the advice of the director of public health and the adult social care assistant directors, if we were reaching the point where we needed to use these powers.

“We are reluctant to use Care Act easements and will only do so if the situation necessitates. If we have to do so, we will inform the public.”

3 Responses to Eight councils have triggered Care Act duty moratorium in month since emergency law came into force

  1. Steve Dorrington May 1, 2020 at 7:14 pm #

    Does this mean Local Authority could refuse to provide residential care for those with funds less than £23,250 and if hospitals are using the Covid fund NHS to place for say a couple of weeks and then withdraw funding once out of hospital. What happens then, can care homes or home providers do the same if funding stops, or do they have a duty of care??

    Thanks

    Steve Dorrington

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