The former Coronavirus Bill is now the Coronavirus Act 2020. The bill was not significantly amended in relation to the proposed changes to the Care Act – however, per s.87(2) of the Coronavirus Act, the changes relating to the Care Act will not come into force until further regulations are made to that effect. Arianna Kelly outlines the key points.
Outline of the key points
Assuming such regulations will be made, the changes to the Care Act would be, in brief outline:
- Local authorities are not obliged to assess the needs for care and support of those who may have them, and nor to assess a carers’ need for support
- The existing framework for the entitlement to adult social care would be suspended for the Emergency Period, and a person would be only entitled to care and support if it is necessary to avoid a breach of the person’s human rights. This would apply to all people with care and support needs, not only people newly presenting to the local authority – from the date on which the changes come into force, the obligation to continue to provide existing care plans is subject to the new legal framework.
- The new and lower obligation to provide care would be extinguished if the person (or if the person lacks capacity, a person authorised under the Mental Capacity Act or ‘in a position to’ arrange care on ‘the adult’s behalf’) asks the local authority not to meet his or her needs where the local authority has notified the person that a charge may be made. I would sound a particular note of caution about this provision, discussed in relation to Safeguarding Duties below.
- Carers would be only entitled to have their needs met if it is necessary to avoid a breach of the carer’s human rights.
- The Act also allows local authorities to postpone financial assessments to determine what charge would be made for the person’s care during the Emergency Period, and to complete the financial assessments and assess charges at a later date.
- During the Emergency Period, people would not be entitled to receive care at their preferred accommodation in residential care or supported living accommodation if they require care of that nature.
Where does a failure to provide care violate Article 8?
In my previous post on 20 March (available at: https://lawinthetimeofcorona.wordpress.com/2020/03/20/the-coronavirus-bill-and-the-care-act-the-profound-implications-for-local-authority-obligations-to-meet-care-needs/), I discussed the Limbuela test and where a failure to provide care may lead to a breach of Article 3 rights. Some have noted (where I had not in my previous post) that R(Bernard) v Enfield  EWHC 2282 (available at: https://www.bailii.org/ew/cases/EWHC/Admin/2002/2282.html) may also be of relevance as an example of a breach under Article 8 (the right to a private and family life) due to a local authority’s failure to provide appropriate assistance to the claimant.
The facts Bernard are striking. The claimant, who was doubly incontinent, had significant needs around her mobility, and required full assistance with her personal care, lived with her husband and six children. As a result of being allocated inappropriate housing, she was limited to living in one room of the family’s home. She was unable to access the shower of the house, and was frequently unable access the toilet in time, causing her severe distress and requiring her and her husband to spend considerable time and effort working to help keep her clean. The claimant was also unable to fully participate in bringing up her children as she wished, as she was unable to access most of the house.
The court found that while her Article 3 rights (that she should not be subject to torture or inhuman or degrading treatment) had not been breached, her Article 8 rights had been breached by the failure to provide her with appropriate housing. The local authority conceded that there had been a breach of statutory duty to provide the claimant with suitably adapted accommodation under the National Assistance Act. The court found that the local authority was obliged to:
..take positive steps, including the provision of suitably adapted accommodation, to enable the claimants and their children to lead as normal a family life as possible, bearing in mind the second claimant’s severe disabilities. Suitably adapted accommodation would not merely have facilitated the normal incidents of family life, for example the second claimant would have been able to move around her home to some extent and would have been able to play some part, together with the first claimant, in looking after their children. It would also have secured her “physical and psychological integrity”. She would no longer have been housebound, confined to a shower chair for most of the day, lacking privacy in the most undignified of circumstances, but would have been able to operate again as part of her family and as a person in her own right, rather than being a burden, wholly dependent upon the rest of her family. In short, it would have restored her dignity as a human being.
Applications for local authorities
The difficulty in the applying Bernard and, as discussed in the previous post, McDonald, is that both of them found Article 8 breaches for failure to provide following on a breach of statutory duty. The local authority’s failing to provide appropriate care and/or housing was not in accordance with the law, and thus the interference caused to the person’s life by the absence of that care was impermissible under Article 8(2).
From the date on which the changes to the Care Act come into force, what will be required under the statutory scheme and what is required to protect a person’s Convention rights are the same – a decision to refuse care is in accordance with the law if and only if it does not breach a person’s human rights. Local authority social workers would no longer have the relative clarity of the Care Act’s eligibility regulations and rubric of domains, and instead will need to take a much more amorphous decision, likely by reference to existing human rights assessment frameworks conducted for people without regular immigration status.
The Department of Education yesterday published guidance in relation to vulnerable young people – hopefully further guidance for adults with needs for care and support will soon follow. The Council of Europe has published a statement of principles in relation to the treatment of people deprived of their liberty during the pandemic; while it does have direct legal effect, it is a helpful document in setting out ways in which human rights can be protected at this time: https://rm.coe.int/16809cfa4b
It is notable that the Coronavirus Act would not alter the s.42 Care Act duty on local authorities to make necessary enquiries when they have reasonable cause to suspect that an adult with needs for care and support is experiencing or at risk of experiencing abuse or neglect from which the person is unable to protect him or herself. This obligation applies whether or not the local authority is meeting the person’s needs for care and support (which may now encompass individuals whose care may be withdrawn during the Emergency Period).
The Care and Support Statutory Guidance at 14.17 notes that neglect may include self-neglect. The guidance notes that ‘This covers a wide range of behaviour neglecting to care for one’s personal hygiene, health or surroundings’. The Guidance also specifically defines ‘neglect and acts of omission’ as including:
- ‘ignoring medical emotional or physical care needs
- failure to provide access to appropriate health, care and support or educational services
- the withholding of the necessities of life, such as medication, adequate nutrition and heating’
Particularly in cases where care packages have been purposefully withdrawn or become unavailable due to staff shortages, local authorities will need to consider what enquiries will need to be made to ensure that people with care needs are not experiencing neglect, or failing to have their health needs met. A decision that care is not required to prevent a breach of a person’s human rights is highly dependent on individual circumstances, and could easily require urgent review if the person becomes unwell, or if the withdrawal of the care package has more severe impacts than projected.
Finally, local authorities will need to treat the provisions which allow a third party to refuse care on behalf of an eligible person (and extinguish the duty on the local authority to meet a person’s needs) with caution. Paragraph 7(2) of Schedule 12 states that a local authority is not obliged to provide care which is necessary to prevent a breach of the person’s human rights if a ‘relevant person’ asks the local authority not to do so – and specifically where the local authority has notified the ‘relevant person’ that ‘it may make a charge for meeting needs.’ Where the requirement to conduct financial assessments will be suspended and financial assessments may be postponed to and charges made at a later date, social workers will likely have to broadly caution people that a charge may be made for care delivered (even if ultimately no payment is due).
The relevant person may be either:
- The person with needs for care and support, or
- If the person with needs for care and support lacks capacity to arrange for care and support, the relevant person is ‘a person who is authorised under the Mental Capacity Act 2005 to arrange for such provision or is otherwise in a position to do so on the adult’s behalf.’
The Care Act, as it stands until these changes are brought into force by regulations, makes specific provision regarding the circumstances under which an adult who may have needs for care and support can refuse assessment. S.11 Care Act currently obliges local authority to consider whether a person’s refusal was capacitous, and whether the person was at risk of abuse or neglect before the local authority could consider its duty to assess needs to be extinguished – the local authority is currently obliged to assess if:
- the person lacks capacity to refuse the assessment and the local authority considered that the assessment is in the person’s best interests, or
- whether or not the person has capacity to refuse the assessment, the person is experiencing, or was at risk of, abuse or neglect.
When the changes are brought into force, the assessment duty would be generally suspended, and this provision would no longer binding on local authorities.
Again, until the changes are brought into force, the current s.18 Care Act duty to meet needs does not contain any provision whereby a third party could refuse care on behalf of the person with needs for care and support, even if they had no authority under the Mental Capacity Act to take decisions on behalf of the person. The s.18 duty to meet a person’s eligible needs is only discharged where the person’s needs were being met by an informal carer, and only for such time as the informal carer is meeting the person’s needs. While an eligible person (or an MCA-authorised decision-maker on the person’s behalf if the person lacked capacity) could opt out of local authority provision, the duty to the person remained. The new provision appears to allow the s.18 duty to be ended without explicit provision for it to be reinstated.
When the amended Care Act is brought into effect, the s.42 safeguarding duties would be highly relevant where a third party has refused care on behalf of a person whose need is great enough to meet the new, and very high, threshold for eligibility. Local authorities would need to make appropriate enquiries to ensure that alternative care arrangements had been made and the person was not experiencing neglect. I would also consider that where the person lacked capacity, local authorities would need to satisfy themselves that the decision taken on behalf of the person to refuse local authority care was being taken in the person’s best interests. Guidance on situations in which a person with no authority under the Mental Capacity Act to conduct a person’s financial affairs is nonetheless ‘in a position’ to make arrangements for a person’s care on behalf of the person (and thus to refuse care on the person’s behalf) would likely be of considerable benefit in applying this provision practically.