Arinanna Kelly looks at the profound changes that the Coronavirus Bill proposes to the legal obligations of local authorities’ obligations under the Care Act 2014.
Schedule 11 of the Coronavirus Bill proposes to dramatically alter the duties of local authorities in relation to meeting the care and support needs of those who are unable to do so. Local authorities’ obligation to meet care needs would exist where failing to do so would lead to a breach of the person’s human rights. As considered in the recent case of Aburas v London Borough of Southwark  EWHC 2754 (Admin), breaches of convention rights are only likely to arise where there is ‘an imminent prospect of serious suffering caused or materially aggravated by the refusal.’
THE CARE ACT 2014
As it presently stands, the Care Act 2014 sets out obligations on local authorities to:
- Assess a person’s needs for care and support if the person may have such needs;
- If a person has needs, determine whether the person’s needs are ‘eligible’ as determined in the eligibility regulations, giving consideration to whether the person is unable meet his or her own needs; and
- Meet the person’s eligible needs (with minor exceptions for some individuals requiring care home accommodation), making charges for doing so as appropriate in accordance with the extensive charging regulations.
The Care Act also requires local authorities to assess the support needs of carers and ensure that provision is made to meet their eligible needs for support.
THE CORONAVIRUS BILL AND THE CARE ACT
The Coronavirus Bill, as presently drafted, states that local authorities are no longer required to assess whether a person has needs for care and support, nor whether carers have needs for support. This includes situations in which the carer is a child meeting the needs of a parent or sibling, or where a child or the child’s carer may be assessed under the Care Act rather than the Children Act 1989. Local authorities also do not need to comply with duties to determine eligibility for care and support. The bill is explicit in stating that local authorities retain the power to carry out assessments as they consider appropriate to determine whether services ought to be provided to a person. Local authorities would also not be obliged to prepare care and support plans, or to review existing care plans on the request of a person receiving care.
Crucially, the bill also changes who is entitled to care and support, considerably limiting the number of people who are entitled to have their care needs met by the local authority. The bill replaces the existing framework for determining eligibility, and replaces it with a requirement to meet a person’s needs only where it is ‘necessary to meet those needs for the purpose of avoiding a breach of the adult’s Convention rights.’
The issue of whether care and support are necessary to avoid a breach of a person’s Convention Rights has been considered in a number of cases (notably Limbuela and GS v Camden). At present, this is the standard to which local authorities are held for individuals with no regular immigration status who are not seeking asylum (as well as some others). As recently confirmed in Aburas, a duty to meet needs to prevent a breach of Convention Rights is not linked to the Care Act eligibility framework. To determine whether care is required to avoid a breach of Convention rights, local authorities typically undertake Human Rights Assessments, as distinct from Care Act assessments, to determine whether they are obliged to meet needs under such circumstances.
The bill does not appear to make provision for continuing to provide care to those already receiving it – thus, local authorities would appear to be entitled to simply cease to provide care to those who do not meet the new, and much higher, threshold.
The duty proposed is dramatically less than the existing duty to meet needs for care and support for those unable to meet their own needs. In reported cases, the relevant Convention rights in relation to the duty to provide care and support have almost always been Articles 3 (‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment’) and 8 (the right to a private and family life). Article 8 is a qualified right, and Article 8(2) allows for interference with this right in accordance with the law and as necessary in the interests of ‘the economic well-being of the country’ or ‘for the protection of health and morals’. Countries are typically given a wide margin of appreciation to make such determinations of necessity. There are some reported cases in which a refusal to provide care was found to result in a breach of Article 8, most notably McDonald v UK. However, the breach in McDonald arose from the fact that the local authority had failed to comply with its statutory duties, and thus the refusal to provide care (and interference with the claimant’s private life) was not in accordance with the law. I am not aware of any cases in which a claimant demonstrated a breach of Article 8 on the basis of a refusal to provide care in the absence of a breach of statutory duties.
Article 3 is not a qualified right: people have an absolute right not to be subject to inhuman or degrading treatment. The threshold for what would qualify is a high one. In Limbuela, the court found that
Treatment is inhuman or degrading if, to a seriously detrimental extent, it denies the most basic needs of any human being. As in all article 3 cases, the treatment, to be proscribed, must achieve a minimum standard of severity, and I would accept that in a context such as this, not involving the deliberate infliction of pain or suffering, the threshold is a high one…
A general public duty to house the homeless or provide for the destitute cannot be spelled out of article 3. But I have no doubt that the threshold may be crossed if a late applicant with no means and no alternative sources of support, unable to support himself, is, by the deliberate action of the state, denied shelter, food or the most basic necessities of life…
The answer must in my opinion be: when it appears on a fair and objective assessment of all relevant facts and circumstances that an individual applicant faces an imminent prospect of serious suffering caused or materially aggravated by denial of shelter, food or the most basic necessities of life.
Many factors may affect that judgment, including age, gender, mental and physical health and condition, any facilities or sources of support available to the applicant, the weather and time of year and the period for which the applicant has already suffered or is likely to continue to suffer privation…
Many of the cases which consider the scope of duties to provide care to avoid a breach of Article 3 consider the needs of individuals who faced the prospect of returning to their home countries in states of extraordinarily ill health. The fact that a refusal to provide care would be life-limiting was typically not considered sufficient to trigger a duty to provide that care under Article 3. Courts instead often focused on the manner that the person would have to live out their lives, giving careful attention to the question of whether the person’s life in the absence of appropriate care and support would be ‘degrading.’ From existing case law, the question of whether a person’s life in the absence of care would be ‘degrading’ is likely to take on considerable relevance.
Existing cases on Article 3 also tend to closely consider the person’s individual circumstances in determining whether care is required to prevent a breach of Convention rights. It would appear likely that the presence or absence of informal and unpaid carers to assist the person will be highly relevant in determining whether local authority care is required to avoid the person’s living in ‘degrading’ circumstances. If this is correct, it would represent a further departure from the existing Care Act framework, in which the presence or absence of an informal carer was to be disregarded for the purposes of determining eligibility for care and support from the local authority. R(Antoniak) v Westminster City Council  EWHC 3465 (Admin)
It is important to note that s.19 Care Act, the power to meet needs for care and support, remains in effect, and the bill makes provision for guidance to be issued, which will doubtless offer further direction to local authorities as to how they are to use their power to meet care and support needs during this period. However, the entitlement to care and support from local authorities will be dramatically less, and it appears likely that the purpose of these changes is to allow local authorities to withdraw care from some individuals currently receiving it. The detailed explanation offered appears to confirm this position, stating that the bill will:
- enable local authorities to prioritise the services they offer in order to ensure the most urgent and serious care needs are met, even if this means not meeting everyone’s assessed needs in full or delaying some assessments. During a pandemic, a lot of people who work in health and social care could be off sick or may need to care for loved ones. This could mean that local authorities, which are responsible for social care, may not be able to do all the things they are usually required to do
FURTHER POINTS OF NOTE
- Local authorities would no longer be obliged to provide an individual requiring residential care, supported living or shared lives care with the person’s preferred accommodation. As it presently stands, this obligation only arises where a number of conditions are met, including that the preferred accommodation is available, and that any additional cost of the preferred accommodation is met by a payor other than the local authority.
- Local authorities would no longer be required to take reasonable steps to secure a person’s home when the person is being cared for in hospital or in a care accommodation.
- A local authority would be allowed to retroactively conduct a financial assessment and charge a person for care provided, even if a financial assessment was not conducted at the time when care commenced.
Duties relating to children with needs for care and support transitioning to adult services would also be suspen