Article updated 22 May
Birmingham and Sunderland councils have returned to applying the Care Act 2014 in full after a period suspending certain duties using emergency powers under the Coronavirus Act 2020.
The authorities’ decisions means there are five councils operating the so-called Care Act easements – Coventry, Derbyshire, Solihull, Staffordshire and Warwickshire – down from an original eight.
The easements are designed to help councils deal with significant depletion of their workforces and increased demand due to coronavirus, by allowing them to suspend their duties to assess need, carry out financial assessments, develop or review care plans and, if necessary, meet needs other than where there would otherwise be a breach of human rights. The last, known as stage 4, is a step only taken by Derbyshire and Solihull so far.
Birmingham said it had kept the easements under review since they were implemented on 14 April and, as of 18 May, had decided to stop using the powers.
Expert guidance on using easements
Community Care Inform Adults users can get expert guidance on using the easements from our legal editor, Tim Spencer-Lane, including a podcast answering your questions on how they work, and a summary and analysis of government guidance on using the easements.
Sunderland said it had made the same decision on the same day, also following a review.
A spokesperson said its use of the easements had been “part of prudent planning and contingency measures for care services”. The council did not respond to a question about what actions it had taken under the easements during the time they were in operation.
Both Sunderland and Birmingham are now operating at stage 2, under the Care Act easements guidance issued by the Department of Health and Social Care (DHSC), which refers to using flexibilities already available under the act. For example, this may involve not carrying out reviews of care and support plans on an annual basis, as this is not a strict requirement under the act.
Of the five authorities using the easements, Derbyshire is facing a legal challenge to its decision to enact them on the grounds that it had not evidenced how it had followed the DHSC guidance.
Solicitors representing the Derbyshire resident bringing the claim are awaiting a response from the council, due next week, before deciding whether to launch a judicial review claim.
The other council operating at stage 4 of the easements, Solihull, received a defence of its approach on Twitter this week from the health and social care spokesperson for the Green Party opposition, Rosemary Sexton.
She said the council had taken a strict interpretation of the guidance on easements so if day centres have closed because of social distancing requirements, this has created unmet need, meaning the council would have to operate the easements.
She also praised the council’s transparency in terms of the number of services and care packages affected, and what steps were being taken to return to normal service. She said the situation in Solihull and the council was looking to reinstate some care packages.
The easements were featured in a discussion on the BBC’s Today Programme on Wednesday this week (the segment starts 52 minutes into the programme) involving social care legal trainer and head of legal rights charity CASCAIDr, Belinda Schwehr, and the leader of Warwickshire County Council, Izzy Seccombe, who is also a vice-chair of the Local Government Association.
Schwehr said the introduction of the easements meant that the sector was going back to a position where “arbitrariness, inconsistency and fundamental opaqueness about people’s legal rights was the order of the day”, whereas the Care Act, in theory, gave people enforceable legal rights. The easements meant local authorities are “capable of making it up as they go along”.
In response, Seccombe said the imperative to free up hospital beds so the NHS could take in Covid-19 patients had meant that councils had had to act quickly, and that Care Act processes were “a little cumbersome and somewhat slow”. She said the only easement Warwickshire had made use of was in suspending financial assessments.
Of the other authorities, Coventry has stopped using the financial assessments easement as its online assessment tool was enabling it to carry out financial checks on a business-as-usual basis. It is still using the easements on needs assessments and on care plans and reviews.
In a report to a cabinet meeting earlier this week, Staffordshire said that it temporarily introduced a shortened assessment form to quickly identify whether a person needed care and support, which has helped support hospital discharges. All of the people affected will have a full Care Act assessment at a later date.