Social Welfare Update: The Care Act 2014 easements: where are we now?

Background

In order to meet the perceived practical challenges that would be faced by social services during the pandemic, significant changes were made to the powers and duties under the Care Act 2014 by Coronavirus Act 2020 s15 and Sch 12, which came into force on 31 March 2020.[1] The effect of the changes – referred to in the statutory guidance as ‘easements’ – is to reduce the level of care and support which local authorities are required to provide under the Care Act 2014 2014, and to allow local authorities to dispense with a number of the procedural requirements with which they would otherwise have had to comply. According to the statutory guidance [2] Care Act easements: guidance for local authorities:[3]

Local Authorities and care providers are already facing rapidly growing pressures as more people need support because unpaid carers are unwell or unable to reach them, and as care workers are having to self-isolate or unable to work for other reasons. The Government has put in place a range of measures to help the care system manage these pressures. Local Authorities should do everything they can to continue meeting their existing duties prior to the Coronavirus Act provisions coming into force. In the event that they are unable to do so, it is essential that they are able to streamline present assessment arrangements and prioritise care so that the most urgent and acute needs are met. The powers in the Act enable them to prioritise more effectively where necessary than would be possible under the Care Act 2014 prior to its amendment (referred to in this guidance as the Care Act). They are time-limited and are there to be used as narrowly as possible.

The guidance makes clear that local authorities are not required to implement the new easements and have the power to continue to provide support at the same level. The idea is that the easements should only be implemented as a last resort:

Local Authorities will still be expected to take all reasonable steps to continue to meet needs as now. In the event that they are unable to do so, the powers will enable them to prioritise the most pressing needs, for example enhanced support for people who are ill or self-isolating, and to temporarily delay or reduce other care provision. [4]
...
The easements took legal effect on 31 March 2020, but should only be exercised by local authorities where this is essential in order to maintain the highest possible level of services. They should comply with the pre-amendment Care Act provisions and related Care and Support Statutory Guidance for as long and as far as possible. [5]

The easements in outline

The key changes contained in the Coronavirus Act 2020 Sch 12 Pt 1 are as follows: [6]

• No requirement to carry out needs assessments under s9 Care Act 2014. [7] However, the Coronavirus Act 2020  Sch 12 para 2(4) provides that this does not prevent a local authority from ‘carrying out any assessment, or making any determination it considers appropriate for the purposes of exercising its functions under section 18, 19, 20 or 62 of CA 2014’. In addition, the guidance suggests that assessments will still be needed. [8] Presumably, in practical terms, this means that an assessment meeting the formal requirements of s9 Care Act 2014 may not be required, but some form of assessment to establish what duty is owed and what support should be provided will still be needed.
• Local authorities do not have to carry out carer’s assessments under s10 Care Act 2014.
• The Care and Support (Assessment) Regulations 2014 SI No 2827 (which deal with the procedural and substantive requirements of assessments) do not apply. [9]
• Local authorities do not have to provide written records of assessments under s12(3) and (4) Care Act 2014. [10]
• S11 Care Act 2014, which deals with the obligations on local authorities where an adult refuses a needs assessment, does not apply. [11]
• Local authorities do not need to carry out eligibility determinations under s12 Care Act 2014, provide records of eligibility determinations, or give advice and information about non-eligible needs. [12]
• Local authorities are not required to carry out financial assessments under s17 Care Act 2014 in cases where a charge could be levied. However, if they wish to charge in any given case, while the relevant provisions are in force, then an assessment must be carried out. This issue can be revisited. [13] A local authority can start meeting needs and later decide to carry out a financial assessment and levy a charge for meeting needs met during the ‘emergency period’ (i.e. the period when the relevant provisions are in force). [14] Cases where the local authority has decided not to undertake a financial assessment under s17 are to be treated as cases where no charge applies. [15]
• The duty to meet eligible needs under s18(1) Care Act 2014 is replaced with a much narrower duty to meet needs where necessary for the purpose of avoiding a breach of the adult’s rights under the European Convention on Human Rights. [16]
• The powers to meet needs under s19 Care Act 2014 s19 are amended to reflect the changes outlined above. [17] In any case where a local authority is satisfied that it is not required to meet an adult’s needs under s18 Care Act 2014, it retains a power to meet those needs under s19. 
• The duty to meet a carer’s eligible needs under s20(1) Care Act 2014 is replaced with a duty to meet needs where necessary for the purpose of avoiding a breach of the adult’s rights under the European Convention on Human Rights. [18]
• The (now more limited) duties to meet needs under ss18(1) and 20(1) do not apply if the local authority notifies a person that it may levy a charge and the person then asks the local authority to refrain from meeting his or her needs. [19] 
• Local authorities do not have to prepare care and support/support plans under ss24-25 Care Act 2014 and do not have to provide reasons for not meeting needs.
• Local authorities do not need to keep care and support/support plans under review in accordance with s27 Care Act 2014. But if they revise a care and support plan then they must still comply with the requirements of s27(2). [20]
• Local authorities do not have to comply with Care and Support and After-care (Choice of Accommodation) Regulations 2014 SI No 2670.  These deal with cases where an adult has expressed a choice about provision of accommodation. [21]
• Local authorities do not have to comply with the duty under s47(2) Care Act 2014 to take reasonable steps to prevent or mitigate loss or damage to an applicant’s property, where an adult is being cared for away from home. [22]
• Local authorities do not have to carry out a child’s needs assessment (for children with care and support needs who are making transition to adulthood) under ss58-59 2014 Care Act 2014. [23]
• Local authorities do not have to carry out a child’s carer’s assessment (for the carers of those children with care and support needs who are making the transition to adulthood) under ss60-61 Care Act 2014. [24] The power to meet a child’s carer’s needs following a child’s carer’s assessment is replaced with a general power to meet child’s carer’s needs. [25]
• Local authorities do not have to carry out a young carer’s assessment (for children making the transition to adulthood who are carers) under ss63-64 Care Act 2014. [26]
• Local authorities do not have to comply with the duties under s2A Chronically Sick and Disabled Persons Act 1970 s2A and s17ZH Children Act 1989 s relating to assessment and continuity of support for those making the transition to adulthood. [27]

The changes described above have retrospective effect in that the suspension or variation of a duty (under Pt 1 Care Act 2014, s2A Chronically Sick and Disabled Persons Act 1970 s2A, or s17ZH Children Act 1989) has effect even if the duty had arisen or the power had been exercised before 31 March 2020.[28] The Coronavirus Act 2020 will expire automatically on 25 March 2022, [29] although that date may be extended or brought forward, [30] to which end s98 provides for six-monthly reviews. Once Sch 12 ceases to have  effect and duties resume as normal, the High Court considering a judicial review regarding whether a local authority has complied with its duty to carry out an assessment or make an eligibility determination will need to consider (a) how long the changes were in force and (b) the number of assessments and decisions which the local authority is now required to carry out. [31]
 

Use of the easements

To date, use of the easements has been limited.  Only eight of 151 local authorities in England have operated under them.  In one of these authorities, Middlesbrough Council, they were in force for only a week. [32] Some local authorities, including North Yorkshire County Council, have approved the use of the easements without going on to implement them [33].

By 3 July 2020, all the local authorities which had operated under the easements had ceased doing so.

Even where local authorities did implement the easements, the extent to which they did so varied. Coventry, for example, stated that it was carrying out less detailed assessments whilst Staffordshire said that it was deferring a small number of assessments. [34] Only two councils – Derbyshire and Solihull - limited their duty to meet unmet eligible needs. [35]

However, there is some doubt as to whether the number of authorities formally triggering the easements reflects the true picture of social care provision during the pandemic. A report by the Joint Committee on Human Rights dated 21 September 2020 noted that, even though “These easements have not to date been widely triggered by local authorities, and we understand that no local authorities formally reported that they were operating at the highest level of easement”, nevertheless the Committee had:

…received evidence that local social care provision has significantly reduced, including in areas where the easement provisions have not been used. In research conducted by the British Institute of Human Rights 68% of respondents said that their care and support (or that of their loved one) had got worse during Covid-19. [36]

Legal challenges

There have not been any reported cases concerning the easements, but at least one local authority is known to have received pre-action correspondence challenging its decision to bring them into force. Derbyshire County Council took the decision to operate under the easements on 30 March 2020 after calculating that it had a shortfall of 682 hours per week in respect of its home care provision. It decided to withdraw some of the home care services it was providing for people with lower-level needs. [37] This decision was challenged by a local resident, Katherine Runswick-Cole, on behalf of her son, William, who relied on direct payments to fund the care he required. Her solicitors, Rook Irwin Sweeney, argued that Derbyshire’s decision was unlawful because:

1. There was no evidence to show that the threshold for operating under the easements, namely that it was no longer reasonably practicable for it to comply with its Care Act duties and continuing to do so was likely to result in urgent or acute needs not being met with a potential risk to life, was satisfied.
2. The decision had not been taken in accordance with the procedure set out in the guidance, which was that “the decision should not be made without consultation with local NHS Leadership, agreed by the Director of Adult Social Services in conjunction with or on the recommendation of the Principal Social Worker and informing the local Health and Wellbeing Board”.  Even the obligation to notify the DHSC of the decision had not been discharged for over three weeks.
3.  The decision had not been communicated properly to providers, service users, and carers.

Proceedings were not issued after Derbyshire made a number of concessions, including changing the way it was communicating the decision.  It also accepted that it had “learned lessons” that would inform “future best practice”. [38]

Continuation of the easements

On 18 September 2020, the DHSC published its “winter plan” for adult social care.This noted that the Chief Social Workers recommended retaining the easements for the winter period.

On 23 September 2020, the Government published an analysis of the Coronavirus Act.This commented favourably on the operation of Schedule 12:

Work undertaken by our chief social workers (CSWs) shows that LAs used the powers responsibly and complied with guidance, so there is no rush to turn off powers. Sentiments gathered from principal social workers (PSWs) and the Association of Directors of Adult Social Services (ADASS) suggest that the option to use easements in the event of a second wave is incredibly helpful. Suspending the powers would give a powerful signal of government confidence that the adult social care (ASC) sector is returning to a “new normal” and so should form part of a wider government assessment of risk to the sector. We therefore recommend waiting until we are confident of the position before turning them off, rather than turning them off quickly and then turning them back on again in the event of a second wave. [39]

On 30 September 2020, the House of Commons agreed that the temporary provisions of the Coronavirus Act 2020, including Schedule 12, should continue.

It is clear that, whilst no local authorities are currently operating under easements, the possibility of them doing so remains in place over the winter months.
 

Footnotes

[1] The Coronavirus Act 2020 (Commencement No. 2) Regulations 2020 SI No 388.
[2] Issued under CvA 2020 Sch 12 para 18.
[3] Care Act easements: guidance for local authorities (Department of Health and Social Care, 1 April 2020) section 2.
[4] Care Act easements: guidance for local authorities section 3(4).
[5] Care Act easements: guidance for local authorities section 4.
[6] CvA 2014 Sch 12 Pt 1 applies to local authorities in England. CvA 2014 Sch 12 Pt 2 applies to local authorities in Wales and makes analogous changes to the powers and duties contained in the Social Services and Well-being (Wales) Act 2014.
[7] CvA 2020 Sch 12 para 2(1)(a).
[8] Care Act easements: guidance for local authorities section 3(1) and Annex B.
[9] CvA 2020 Sch 12 para 2(1)(c).
[10] CvA 2020 Sch 12 para 2(1)(d).
[11] CvA 2020 Sch 12 para 2(1).
[12] CvA 2020 Sch 12 para 2(2).
[13] CvA 2020 Sch 12 para 10.
[14] CvA 2020 Sch 12 para 3(1)-(2).
[15] CvA 2020 Sch 12 para 7(1).
[16] CvA 2020 Sch 12 para 4.
[17] CvA 2020 Sch 12 para 5.
[18] CvA 2020 Sch 12 para 6.
[19] CvA 2020 Sch 12 para 7(2).
[20] CvA 2020 Sch 12 para 11(c).
[21] CvA 2020 Sch 12 para 8(a).
[22] CvA 2020 Sch 12 para 8(b).
[23] CvA 2020 Sch 12 para 2(3)(a).
[24] CvA 2020 Sch 12 para 2(3)(b).
[25] CvA 2020 Sch 12 para 9.
[26] CvA 2020 Sch 12 para 2(3)(c).
[27] CvA 2020 Sch 12 para 15.
[28] CvA 2020 Sch 12 para 16.
[29] CvA 2020 s89(1).
[30] CvA 2020 s90.
[31] CvA 2020 Sch 12 para 17.
[32] The other seven authorities were Birmingham City Council, Coventry City Council, Derbyshire County Council, Solihull Metropolitan Borough Council, Staffordshire County Council, Sunderland City Council, and Warwickshire County Council: Eight councils have triggered Care Act duty moratorium ini month since emergency law came into force, Community Care, April 30 2020.
[33] Legal challenge launched as more councils enact Care Act ‘easements’, Local Government chronicle, 22 May 2020.
[34] Eight councils have triggered Care Act duty moratorium ini month since emergency law came into force, Community Care, April 30 2020.
[35] One council left suspending Care Act duties as authority subject to legal challenge returns to full compliance, Community Care, June 9 2020.
[36] https://publications.parliament.uk/pa/jt5801/jtselect/jtrights/265/26507.htm#_idTextAnchor047
[37] https://democracy.derbyshire.gov.uk/documents/s3349/EIA%20in%20relation%20to%20urgent%20decisons%20Covid.pdf
[38] https://rookirwinsweeney.co.uk/challenging-derbyshires-care-act-easements/
[39] https://www.gov.uk/government/publications/coronavirus-act-analysis/coronavirus-act-analysis