Care Act duties ‘permanently undermined’ by widespread breaches during Covid, argues study

Authorities cut services for adults with dementia and their carers despite not invoking Care Act 'easements' that allowed councils to relax statutory duties, finds research

Care Act front page
The BASW proposals would likely require changes to the Care Act (photo: Gary Brigden)

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.

‘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.

“She went to a day centre, you know, for five hours. And that was just like a release valve to me, you know. Just getting five hours was like two weeks.” (male carer, 76, from easement area)

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.

…”he gets quite tired quite quickly with Zoom. If he’s in a room and other people are there, and they have a cup of coffee in the middle of it, and somebody’s laughing and talking, he would be far more responsive for longer.” (female carer, 70, non-easement area)

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.

The authors were Neil Allen, Jane Astbury, Phil Drake and Debbie Price.

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2 Responses to Care Act duties ‘permanently undermined’ by widespread breaches during Covid, argues study

  1. Chris Sterry January 11, 2023 at 5:00 pm #

    While the Care Act 2014 was a very welcomed addition to the UK legistlation, it went nowhere as far as it should have, as those areas shown as guidance should have been musts.

    For then theseTories allowing Local Authorities (LAs) to apply for easements under Coronavirus Act 2020 was also so wrong, for what is the point bof legistlation which didn’t go far enough and then at the first signs of problems allow for easements to be made, when it reallitymore was needed not less.

    So it was good that only a few LAs applied for easements, but for some who didn’t to underhandedly do what they didn’t apply for was more wrong and should be illegal.

    But due to the Tories also making it harder to go for Judical Reviews by their tightening of the criteria for Legal Aid means that the majority of persons with unmet needs are being left ‘high and dry’, this is scandalist.

    But it is more of a scandal that these Tory Governments have since 2010 severely reduced LA Budgets by the dreaded Austerity Cuts which have never been reversed and to some extent still being enforced more and more.

    If LAs are not allowed to fund and more than ever before fully social care thereby increasing drastically the social care crisis then the NHS crisis will have no hope of being solved. For solve the social care crisis and that will be a long way to improve the NHS crisis.

    While this Tory Government is starting to fund more some aspects of social care it is far too little and far too late. For at least £13 billion is required for social care and not the fractions of £millions forthcoming.

    More people have to be encouraged to come into the care profession and that needs massive increases in the rate of pay for care workers, at least around £14/15 per hour, well in excess of the current £10 and the promised £11 in April 2023 with the increase in the National Living Wage.

    But pay is just one element for there are many more including increased travel expenses, much improved working conditions and much more.

    Whether we know it or not and a large proportion of the UK population don’t Social care is a very essential emergency service, up there with all the others, NHS, Police, Fire etc.

    A Government needs to take action, but I don’t see this or any Tory Government doing so and currently not even any forthcoming Labour Government.

    We are all dying through lack of sufficient needs being actioned, perhaps this is what UK Governments wish for.

  2. Not My Real Name January 16, 2023 at 8:31 am #

    Does anyone understand the legal situation here? If a Day Centre shuts because the provider goes bankrupt or has it’s central funding cut is that ‘unlawful’ unless you have a review? What would a review do if it was the only provider?

    I don’t think the law will help us here. Only money can solve these problems.