Councils’ Care Act 2014 duties have arguably been “permanently undermined” by widespread non-compliance during the pandemic, a study has found.
Authorities across England cut provision to people needing care and support and carers, for example, by closing day centres or reducing respite services, without making use of the so-called Care Act easements, found the research by the University of Manchester.
The easements allowed authorities to suspend their duties to carry out needs assessments, financial assessments, care planning and review and, in extreme cases, to not meet needs they would normally be required to meet, so long as they did not violate human rights.
Enacted under the Coronavirus Act 2020 in March of that year, the easements were invoked by just eight of the 151 relevant councils between April and June 2020, though the power to do so was only removed from the statute books in July 2021.
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‘Widespread reductions in support’
However, the study, which focused on the impact of pandemic practice on older carers of people with dementia, found there were widespread reductions in support, “with no discernible differences between” between easement and non-easement authorities.
Of 604 carers surveyed last year, 52% said their loved-one or they had been receiving a formal service before the pandemic, with a quarter of this group saying it was paid for by the local authority.
However, across almost all services, including day centres, residential respite, group activities, sitting services and social work, most of these respondents said they were now getting less or no support. In relation to home care, a third who previously received it were now getting no support.
Researchers said this picture was endorsed by council principal social workers and safeguarding leads across easement and non-easement areas.
“Although the easements were only invoked by eight local authorities, the professionals from the other 15 local authorities around England interviewed for this study reported similar anxieties and made similar decisions relating to reduction of services and changes in services to cope with pandemic conditions,” said the report.
Carers and council leads interviewed also reported, in line with other research, that the pandemic had led to an acceleration of cognitive and physical decline among people with dementia, suggesting carers’ needs for support and respite were increasing.
‘Significant unmet need’
The research found the suspension of day services led to “significant unmet need resulting in stress and anxiety” for carers, who were left without crucial regular breaks.
Most said they were not offered alternatives to day care, while others said their loved-ones struggled to access online groups set up instead, which they, as carers, often had to support them with, removing any respite. Of 100 survey respondents offered an online alternative to a face-to-face service, 81% said the experience was worse for one or both of themselves and the person they cared for, with 52% saying it was worse for both.
Statutory duties not met
Carers across several authorities reported contacting their local authority for assistance as needs mounted during the pandemic without being offered an assessment or review of theirs or their partner’s needs, a view that was echoed by survey respondents.
And while home care services were often stopped on the initiative of the carer – due to fears about infection – local authority leaders and carers alike said there were few instances of follow-up by councils, despite the person having previously been assessed as having eligible needs.
The report set out several instances in which Care Act duties were likely to have been breached without the easements being invoked, including:
- Increases in the appearance of need for care or support that was left unassessed (contrary to the assessment duties under sections 9 and 10 of the act);
- The eligible needs of the cared-for person only being able to be met through them attending a day service that was closed or receiving home care that could not be delivered safely or at all (contrary to the duty to meet care and support needs under section 18);
- The carer’s eligible need for respite only being able to be met by the cared-for person attending a day service, having a sitting service at home or attending residential respite where none was available (contrary to the section 20 duty to meet carer’s needs);
- Changes in circumstances that did not result in a review or revision of a care or support plan (contrary to section 27).
The report said: “Given the evidence of reductions in support to carers at a time when their needs were increasing, and the apparent extent of unmet need among carers in this study, on the face of it there appears to have been a high risk of instances where statutory duties under the Care Act towards carers were not met – including for assessment, provision, communication, and reviews.”
It added: “In all likelihood, local authorities temporarily rationed social care out of necessity, but the majority did so without legal protection.”
Differences in legal advice
The study concluded that the differences in approach between easement and non-easement authorities were the result of the different legal advice they received.
Among those that invoked the measures, the most common reasons were the actual or anticipated reduction in workforce capacity, day centre closures, the inability to offer choice of care home or preferred accommodation and the incapacity to deliver annual reviews.
These issues were common across all areas studied, but authorities saw their legal implications differently.
But while councils may have exposed themselves to legal challenge, no such litigation took place – to the authors’ knowledge – besides adverse decisions from the Local Government and Social Care Ombudsman.
The authors asked: “If reductions and stresses to provision of home care, closure of day centres, not giving written records of assessments, lack of choice for residential care, movement of assessments and services from in-person to on-line and reductions in follow-up, could all happen without breaching the Care Act, what is it that the law requires local authorities to do when their resources are stretched?”
“By not recognising past potential statutory breaches, the future strength of statutory duties under the Care Act has arguably been permanently undermined,” it added.
About the study
The impact of Care Act easements under the Coronavirus Act 2020 on co-resident carers, over the age of 70, with spouses or partners living with dementia was commissioned by the National Institute for Health and Care Research (NIHR) through its older people and frailty policy research unit. It was based on:
- 48 in-depth interviews with people over 70 who had been supporting their spouse or partner living with dementia to live at home. About one-third were in easement authorities and two-thirds in non-easement councils.
- 27 in-depth interviews with principal social workers and other local authority leaders at 20 councils, five of which had invoked the easements.
- A survey of 604 carers supporting people with dementia across the UK in April to July 2022.
- Legal analysis of the operation of the easements.