Why having no councils formally suspending Care Act duties does not equate to nationwide compliance

By Belinda Schwehr

The Coronavirus Act 2020 has enabled local authorities to “prioritise more effectively where necessary” (Department of Health and Social Care) in adult social care than previously allowed by the Care Act 2014, in which the decisions were designed in a linear structure of individually enforceable duties, target duties and powers, all supported by public law principles.

DHSC guidance on the use of the Coronavirus Act’s ‘Care Act easements’ said that Care Act requirements “should” be followed for as long and as far as possible, even though the suspension of some of the duties, and modification of others, had come into effect for all councils; the guidance said that easements should only be adopted if that was “essential in order to maintain the highest possible level of services”.

Even if a council chose to operate under the easements, it could not simply cease to assess people for their care and support needs. Councils also remained under a limited duty to meet needs, where failure to do so would breach an individual’s human rights. Assessments were able to be refused for good reasons and made less detailed; financial assessments could be suspended, scheduled reviews could be deferred, and the duty to meet need was replaced with the general power to do so under section 19, making any application for judicial review a good deal harder than it would ordinarily have been.

The decision-making process suggested by the DHSC for the adoption of the easements divided planning and monitoring of capacity and resources for the discharge of Care Act functions into two types. The first involved ‘business as usual’ or limited changes, such as delays or alteration of ‘service types’ for meeting needs; effectively, use of flexibilities inherent in the pre-amendment Care Act, but not application of it as having been formally amended by the Coronavirus Act.

The second level involved taking advantage of the Coronavirus Act changes, so (whilst doing whatever a council could), working without any explicit legal duties or thresholds, concerning assessment; without applying the formal eligibility regulations; without creating care planning paperwork, or operating financial assessments, or actually meeting any needs, other than where the impact constituted a breach of human rights. The last stage in a worst possible scenario was to be prioritisation under the Care Act ‘easements’ where, for example, personal care could be reduced for one person so that another would get the help they needed, more, instead.

In March, CASCAIDr sent out Freedom of Information (FOI) requests to local councils, enquiring as to their stance on the Care Act easements.

We asked if councils had decided to adopt all or any part of the easements and, if not, whether they planned to do so by a certain date, planned not to do so or had not decided but were doing strategic planning.

Optional changes or binding law?

We also asked whether, given that the relevant part of the Coronavirus Act had already modified sections 18, 19 and 20, of the Care Act, councils were operating currently on the basis that the changes were optional, in accordance with the general discretion described in the easements guidance, or constituted the governing law of England, and were binding.

If the latter, (ie in force, and binding) we asked what councils had actually done to change their operating mode or instructions to staff with regard to planning budgets and packages based on avoidance of a breach of human rights, or with regard to exercising the section 19 power to meet needs, compliantly with public law and other wider legal principles, such as equalities law

We also asked councils about whether they had publicised their position on the easements, who was the point of contact for residents wishing to enquire about the easements and what route of challenge there was to any decision regarding requests for assessments, eligibility decisions and developing, reviewing or revising existing care plans.

At the time of writing, 137 councils have given their reply. One hundred and nine councils have indicated that they had not adopted the easements, but that ‘strategic planning is underway’. The vast majority of these replies were very vague about this strategic planning.

Only two replies stood out as providing more detailed answers: those of Dorset and Sefton.

Dorset stated:

“We intend not to adopt easements, but this could change depending on whether the criteria of reduced staff capacity, and increased demand, making it difficult to manage risk to individuals, is met.”

“We have sent a letter out to all of our care providers (20^th April 2020) and staff setting out:

• what the use of the easement might mean for the delivery of our statutory duties,
• what we have done to date without applying the easements and,
• inviting the public to work with us to ensure service users are properly represented.”

“What we have done to date (as referred to in the letter sent out to care providers) 

• Ensure that people who use services and support networks are included in decisions that affect them
• Work together across all the health and social care workforce to facilitate agile and collaborative working
• We will regularly review the needs and risks to individuals to prevent the likelihood of harm.
• We will work with you around the recovery period post-Covid, based upon government guidance [we] will plan how capacity and issues will be supported through a return to Business As Usual which could be a few months away.”

Reverting back to Care Act

Seven councils stated that they had indeed implemented the easements: Warwickshire, Birmingham, Solihull, Coventry, Sunderland, Derbyshire, Middlesbrough – and it was public knowledge that Staffordshire was also operating under the easements, although it was one of the non-repliers to our FOI request. All of these councils have now reverted back.

No council admitted to taking the effect of the legislation itself, at face value, as not requiring conscious adoption, ie no council had simply followed the Coronavirus Act and taken advantage of release from the normal duty-based framework. Only Sunderland, a council that had specifically adopted the easements, took up our invitation to give detail about changes to operating mode or instructions to staff about planning budgets and care plans under an easements-flavoured approach:

“The Local Authority is operating within stage 3 of the easements guidance and has taken the following steps to alter the operating model as follows:

• Consultation and working in close partnership with all stakeholders on the proposed changes and clear guidance on delivery during the emergency period
• Triage and assessment of need and prioritisation on receipt of contact from customers requesting care and support with the customer and their family
• Utilisation of citywide resources to meet need based upon triage and prioritisation of need
• Proportionate, person centred and strength-based assessment and care planning with the individual and their circle of support to ensure they remain involved in all decision making
• Application of the ethical framework for Adult Social Care
• Where services can no longer be delivered due to the effects of Covid-19 alternative methods of delivery are sought and offered so as not to breach human rights
• Continued application of statutory regulations in respect of Safeguarding, Deprivation of Liberty and Mental Capacity Act
• Removal of barriers that may delay the immediate delivery of support required
• Each customer contact will also be revisited and reviewed.”

Ironically, apart from asserting a duty only to meet needs so as to prevent a breach of human rights, which is definitely an easements-related approach, and also subject to the meaning of the word ‘prioritisation’, CASCAIDr would say it was arguable that most of these stances were flexibilities under the Care Act in its unamended form, not stances requiring adoption. It is noteworthy, however, that no actual detail as to avoidance of a breach of human rights is actually given.

Other councils’ replies simply stated ‘not applicable’ to the above enquiry (because not adopting) or did not elaborate on what measures were being put in place and referred us to their websites for further research (eg Derbyshire). Other specific adopters, such as Birmingham and Warwickshire, gave only yes or no answers, and they both reverted back to full Care Act compliance in May, in any event.

Changing care plans to deal with social distancing

Being on the right side of the Care Act connotes a position in which needs are still being met, albeit by different means, if current means cease to be available. Even if councils have reverted back to pre-amendment Care Act duties, their service content or type may still be temporarily different from the formal care plans, because of social distancing effects rather than a council’s own in-house or general workforce resources, as long as they are still meeting the previously assessed needs.

For example, Coventry was not offering any day services for adults with disabilities, and residential respite care remained unavailable, presumably because of both purchaser and provider wishes to keep people out of care homes where outbreaks are more likely, and the space being needed for distancing of existing residents.

It is, however, a moot point as to how long a care plan can lawfully remain different on paper to what is actually happening on the ground before it needs to be reviewed and revised, consistently with section 27 of the Care Act, after due involvement of all relevant parties.

We have reason to believe that some councils have regarded the closure of a given service as a justification for cutting the direct payment or budget, without consideration of other uses to which the funds could have been put, to meet the same needs; so we are unsure whether more councils should have adopted the easements, for the purposes of the legal protection it would have offered them.

Pre-Covid non-compliance

And quite separately, the very high level of Local Government and Social Care Ombudsman reports upholding complaints on the basis of non-compliance with the Care Act, over the last year, would suggest that many more should have adopted the easements, for self-protection in any event. Redbridge must be thinking about that too, we would suggest, given Mr Justice Fordham’s recent excoriating judgment in the Administrative Court [2020] EWHC 1456 about its failure to react to a carer at the end of her tether, and the exceptional finding that there was a ‘sole, justifiable’ response of night time support, pending conclusion of a long drawn-out assessment.

We can only surmise that what stalled that possibility was the difficulty of tying general budget-driven constraints probably being experienced by most councils and providers, over that much lengthier period before Covid-19 actually struck, to the specific impact of the pandemic and lockdown rules.

Since the modification of the Care Act remains in place for up to two years (March 2022), barring a possible governmental decision to restore it to its form some time before that point, on six-monthly reviews, it will be interesting to see how the LGSCO (now open again, for normal business, after temporary closure to new complaints) will grapple with the status of the Care Act at any given point, for any complaint about the last three months, or the future 21.

A complaint may allege breach of the Care Act and the council in question may not have adopted the easements, and be tempted to say ‘Well, it was all modified anyway, so we weren’t at fault…’. In addition, the LGSCO will have to decide how to interpret the statutory provision of ‘retrospective latitude’ that was provided for by paragraph 16 of the Coronavirus Act’s schedule 12, the basis for the easements:

16(1) A provision of this Part of this Schedule that provides that a local authority does not have to comply with a relevant duty, or modifies a relevant duty of a local authority, applies in relation to duties arising before the commencement day as it applies in relation to duties arising on or after that day.”

Belinda Schwehr is chief executive of legal advice charity CASCAIDr (www.CASCAIDr.org.uk) and owner of consultancy Care and Health Law. She has been a barrister, solicitor advocate, presenter, writer and university law lecturer.