Council faces legal challenge for suspending Care Act duties

Authority is given until 11 May to respond to claim that it has failed to follow guidance or justify decision to take emergency action under Coronavirus Act

By Mithran Samuel on May 7, 2020 in Adults, Coronavirus

Credit: ldprod/Adobe Stock

Derbyshire council is facing legal action over its decision to suspend significant duties under the Care Act 2014 as part of its response to coronavirus.

The council has been given until Monday (11 May) to respond to a letter from solicitors to provide evidence justifying its decision, or face a judicial review claim.

Derbyshire is one of eight authorities to have enacted the so-called Care Act easements – which allow councils to suspend assessments, care planning and reviews, and limit their duties to meet needs to cases where there would otherwise be a breach of human rights – during their first month of operation.

It said it had used the easements – brought in on a temporary basis under the emergency Coronavirus Act – to suspend, reduce or change some “non-essential homecare services” for people who have support from family or friends, the arrangements had been agreed with those concerned and would be regularly reviewed.

What Derbyshire says about its use of the Care Act easements

On its website, on a page about council services affected by coronavirus, the authority says:
To help ensure Derbyshire’s most vulnerable residents are supported during the coronavirus outbreak, the county council is having to focus its resources on meeting the most serious and urgent care needs.

This is in line with new government legislation which temporarily changes the county council’s statutory duties in relation to social care during this emergency situation.

The temporary changes are designed to help us respond quickly to the pandemic by giving us the capacity to support the NHS by helping get people home from hospital as soon as they’re ready to leave.

We’ll have the ability to support those in the community most affected by Covid-19. These include the shielded group who, due to their age or health conditions, are relying on us for essential support such as food and medication. It also includes those who are self-isolating and don’t have the support of friends and family.

The changes also allow us the flexibility to continue to support the most vulnerable people who receive a service from us.

We have already had to suspend some services temporarily and we are now having to look at reshaping our homecare services to ensure we can continue to support Derbyshire’s most vulnerable residents.

Clients who have lower level needs and support from family, friends or the community, could be affected by these changes as we may need to:

change care workers or providers
change the length, time or frequency of home care visits
temporarily suspend some services
Anyone directly affected by these changes will be contacted.

However, law firm Rook Irwin Sweeney, which is acting on behalf of a Derbyshire resident, said the council had not provided any evidence about how it had followed guidance on the use of the easements issued by the Department of Health and Social Care, which councils are under a duty to follow.

The guidance states that 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.”

Alex Rook, partner at Rook Irwin Sweeney, said: “We’ve not seen from Derbyshire or the other authorities [using easements] any information that says this threshold has been met. And the information from Derbyshire to service users and their families on their website is incredibly thin.

“If you were a recipient of adult social care in Derbyshire you would want to know what you are facing but it’s impossible to know.”

Rook said the only thing that he had seen published by Derbyshire was a short statement on its website (see box).

A spokesperson for Derbyshire council said: “These temporary changes are designed to help us respond quickly to the pandemic and enable us to ensure Derbyshire’s most vulnerable residents are supported.

“Following an assessment of all clients, we have suspended, reduced or changed some non-essential homecare services in line with changes to government legislation for those people who have support of family and friends.

“These arrangements have been agreed with everyone affected and will be reviewed regularly to ensure people can continue to manage with the reductions in their support packages.”