One council left suspending Care Act duties as authority subject to legal challenge returns to full compliance

Derbyshire council has returned to full compliance with the Care Act 2014 leaving just Solihull using emergency coronavirus provisions to suspend duties.

The East Midlands authority took the decision to stop using the so-called Care Act easements a week after a legal challenge to its use, on behalf of a local disabled man was dropped. Derbyshire said it had “learned lessons” from the way it had taken this decision, particularly in relation to the way it communicates such changes to residents, one of a “number of concessions” the law firm bringing the challenge, Rook Irwin Sweeney, said it had made.

While the council has not published its decision to stop using the easements on its website, the Care Quality Commission has removed the authority from its list of authorities operating the policy, leaving just Solihull.

In a tweet responding to the decision, Rook Irwin Sweeney said it was delighted by the decision.

UPDATE: we’re delighted to hear that Derbyshire has now reversed its decision to operate Care Act ‘easements’ and so will be required, as usual, to comply with all of its social care duties in accordance with the Care Act 2014 #DisabilityRights @k_runswick_cole @SteveBroach https://t.co/axJNM08RQu

— Rook Irwin Sweeney (@ris_law) June 9, 2020

Suspension of duties

The Care Act easements were brought in in March under the Coronavirus Act 2020 to enable councils to deal with situations where they could not meet their core social care duties because of workforce depletion or substantially increased need during the pandemic.

They enable authorities to suspend duties to carry out needs or financial assessments, develop or review care and support plans and, in extreme circumstances, meet needs other than where this would breach human rights.

While eight authorities have operated the easements since they were enacted, just Derbyshire and Solihull have limited their duty to meet unmet eligible needs under the Care Act, reducing care packages for some of their residents.

In a council paper explaining its decision making on the easements last week, Derbyshire said it had calculated at the end of March that it had a shortfall of 682 hours a week in home care capacity, out of a total 56,016 hours, as a result of the need for additional resource to meet the NHS’s demand for swifter hospital discharge to release beds.

While the council and providers had persuaded some existing staff to work increased hours and employed more agency staff, the workforce had been depleted by 28% to 30%, in part because of sickness and self-isolation. As a result, it decided to use the easements to reduce home care packages for people with lower-level needs using its short-term home care service.

Derbyshire said it had then categorised care packages as red, amber or green by level of need, with those in the green, lowest-need, category who agreed to a temp0rary cut and faced the least risk as a result who had their packages reduced.

It said:  “If the council had not taken action to address that gap, it would have likely resulted in urgent or acute needs not being met, potentially risking life, in that the NHS would not have had the acute beds that it required and in that, without careful planning, social care staff unable to meet demand would be likely inadvertently not to meet urgent or acute needs, potentially risking life.”

This describes the threshold for making use of the easements set out in statutory guidance published by the Department of Health and Social Care. The legal challenge mounted against the council was based, in large part, by the claim that it failed to show how it had followed the guidance.

Solihull plans to reduce use of easements

Meanwhile, Solihull is planning to stop operating at “stage 4” of the easements, under which it is permitted to not meet eligible needs in full, it said in a paper to a council meeting next week.

While the council initially reduced some low-risk home care packages, as a result of increased demand and workforce depletion across the council and care providers, these have now been reinstated unless declined by the person.

However, it is still not meeting some people’s day opportunity needs, as a result of its decision to close day centres as a result of social distancing rules.

The paper said that “due to a much improved situation” for the council in managing demands and available workforce, it was now looking at sourcing alternative provision for people in order to remove this easement, and meet all eligible needs in full.

It is not clear whether the council would stop using the easements altogether at that point or whether it would operate at “stage 3”, which involves suspending needs assessments, financial assessments or the development or review of care and support plans. In the same paper, the council said that it had not enacted the easement on needs assessment and had ceased using the financial assessments one.