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

Story updated 26 March

Coronavirus-inspired legislation, which would allow ministers to suspend key duties under the Care Act and its equivalent Welsh legislation, has passed into law.

The changes in the Coronavirus Act 2020 are intended to enable authorities to prioritise resources, if necessary, should they be unable to meet their statutory duties in full should demand spike and staffing resources shrink significantly as the Covid-19 pandemic reaches its peak.

The government has insisted that the provisions in schedule 11 of the act – which would come into effect through regulations – will only be applied if required. However, they have triggered significant concerns about the undermining of key entitlements to care and support.

The legislation as a whole will be in place for an initial period of two years, though this could be shortened or lengthened by regulations, and it will be reviewed as a whole every six months.

Suspension of Care Act and Welsh duties

Were the emergency powers triggered, the act would suspend the duties on English local authorities to assess the needs of adults, adult carers, disabled children in transition and their carers and young carers who appear to have needs for care and support – or support in the case of carers – and to determine whether such needs were eligible. Councils would also not have to carry out financial assessments though would not be able to charge for care and support without having done so.

More on the Coronavirus Act Community Care Inform Adults subscribers can read a full outline of what the act means for practitioners written by legal editor Tim Spencer-Lane.

The provisions would also weaken the duty under section 18 of the Care Act to meet adults’ unmet eligible needs for care and support, which would only be required if it were necessary to prevent a breach of the person’s rights under the European Convention on Human Rights. The same would apply in relation to the duty to meet carers’ eligible needs under section 20 of the act.

The act also allows for the suspension of the requirement to prepare or review care and support plans for adults, or support plans for carers, and the duty to provide continuity of care when a person moves between local authority areas.

It would also suspend similar duties on Welsh local authorities under the Social Services and Well-being (Wales) Act 2014 in the event of an emergency, as determined by Welsh ministers.

Emergency powers

Explaining the rationale for the provisions in a letter to social care organisations, Department of Health and Social Care director general, prevention, community and social care Jonathan Marron said: “I know that you will be committed to delivering on all your existing duties during the coming period. However, we need to prepare for the possibility that during the peak of an epidemic a greater number of people will need social care and many staff may be unavailable due to illness or the need to care for loved ones.

“This could mean that you need to focus your resources on ensuring the most serious and urgent care needs are met, and defer meeting some other, less acute or pressing needs.”

Alongside the legislation, the DHSC has published an ethical framework designed to guide local authorities in the event that they need to prioritise between competing needs. This states that decisions need to be made in a way that ensures people are treated with respect, minimises harm and is inclusive.

The act also provides for the government to issue guidance, which councils would have to have regard to, in relation to applying the Care Act provisions.

However, the proposals have triggered widespread concerns about the impact on people with needs and their carers.

BASW England: better ways to manage crisis

The British Association of Social Workers England said that while it strongly supported the government’s aim of enabling local authorities to prioritise services so they could meet the most serious and urgent needs, there were better ways of doing so.

It said it was “concerned that the significant level of legislative change proposed in the bill is likely to delay actions, because of the scale of the changes and the resources it will require to implement them. New administrative systems will be required, and social workers and other staff will require training in applying these systems and adapting their ways of working.”

‘Serious risk to life’

Speaking before the act became law, Campaign group Disabled People Against Cuts (DPAC) said: “As it stands the bill poses a serious risk to the lives of many disabled people, especially those of us who need social care support.

“The bill will effectively free local authorities of their duties to provide social care support under the Care Act 2014 and will only oblige local authorities to provide support in cases where the human rights of Disabled people will be breached.

“We know from experience that in order for human rights to be breached in social care context the situation has to be very critical or severe.”

Helen Walker, chief executive of Carers UK, said: “We recognise these are temporary measures which should help local services better deal with coronavirus – but it is essential that councils continue to assess the risks and vulnerabilities affecting carers and the people they support.

“Unpaid carers will be under huge stress currently, taking extra precautions and going above and beyond what they normally do to ensure their loved ones are safe. If they are not clearly recognised and supported during this emergency then more people will become unwell and need support.”

‘A dogfight for resources’

Legal experts were also critical. The legal advice charity CASCAIDr, headed by lawyer and trainer Belinda Schwehr, has produced a highly critical clause-by-clause analysis of the act’s impact on the Care Act.

In relation to the provision commuting the duty to meet needs under section 18 of the Care Act 2014, CASCAIDr said: “We fear that the only staff who know how to do a human rights assessment in adult social care are those who manage the case load made up of people with nil recourse to public funds – people with an immigration status, and there won’t be many of those around, for much longer!

“Most social work colleges will not have taught the newly qualified social work students how to do this, we have to say, in our experience. This is a recipe for turning social care into a dogfight for resources, determined by the principle ‘S/he who shouts loudest gets the services’.

It is not what the public deserves, having been told that the government will do whatever it takes.”

Alternative approaches

Three barristers from 39 Essex Chambers, all with significant experience of social care law, proposed alternative approaches to managing the impact of demand and workforce pressures on local authorities statutory duties than that proposed by the government in schedule 11 of the act.

Jenni Richards QC, Victoria Butler-Cole QC and Sian Davies said that the government’s objectives could be met by:

“Retaining the relevant social care duties but amending their application so that local authorities are only required to implement them as far as reasonably practicable. Where the draft Bill says the local authority does not have to comply with a duty, the new drafting would say that the local authority has to comply with the duty only to the extent reasonably practicable. The ‘reasonably practicable’ rider would not apply where there were anticipated ECHR breaches.

Alternatively, requiring the local authority, before treating the relevant social care provisions as disapplied, to be satisfied that compliance with the duties is incompatible with either compliance with other statutory duties or with the efficient use of its resources.

In any event, adding an express requirement to carry out an assessment to verify whether there would be any ECHR breach. This would most likely be implied as a matter of law on the basis of the current drafting, but it would be clearer for local authorities for it to be spelled out on the face of the legislation – the current draft requires local authorities to be satisfied there would be no ECHR breach but says they have no duty to assess any individual’s needs, which would be the only way to ascertain this.”