Coronavirus Act amendments to the Care Act now in force and guidance on adult social care duties published

Arianna Kelly looks at the newly-published guidance on social care during the Emergency Period.

Arianna Kelly

 

The Secretary of State made regulations on 31 March to bring into force extensive changes to the Care Act 2014. Guidance on the application of these changes has also been published: https://www.gov.uk/government/publications/coronavirus-covid-19-changes-to-the-care-act-2014/care-act-easements-guidance-for-local-authorities

Per Schedule 12 of the Act, local authorities are obliged to ‘have regard to’ this guidance, and ‘must comply with such guidance issued under this paragraph as the Secretary of State directs.’ It is not clear whether the Secretary of State has directed compliance with the guidance, which states that the Secretary of State has such a power and that ‘the Department will keep this under review.’

The guidance states that while the ‘easements’ of the Coronavirus Act have now taken effect, they ‘should only be exercised by Local Authorities where this is essential in order to maintain the highest possible level of services’ and local authorities ‘should comply with the pre-amendment Care Act provisions and related Care and Support Statutory Guidance for as long and as far as possible.’ The guidance notes that the ‘easements’ will be terminated as soon as possible.

KEY POINTS OF THE GUIDANCE

The following excerpts from the guidance are of particular relevance:

  • ‘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…are time-limited and are there to be used as narrowly as possible.’
  • ‘Local Authorities will not have to carry out detailed assessments of people’s care and support needs in compliance with pre-amendment Care Act requirements. However, they will still be expected to respond as soon as possible (within a timeframe that would not jeopardise an individual’s human rights) to requests for care and support, consider the needs and wishes of people needing care and their family and carers, and make an assessment of what care needs to be provided.’
  • ‘Local Authorities will not have to prepare or review care and support plans in line with the pre-amendment Care Act provisions. They will however still be expected to carry out proportionate, person-centred care planning which provides sufficient information to all concerned, particularly those providing care and support, often at short notice. Where they choose to revise plans, they must also continue to involve users and carers in any such revision.’
  • ‘All assessments and reviews that are delayed or not completed will be followed up and completed in full once the easements are terminated.’
  • ‘’The fundamental principles of personalisation and co-production underpinning the Care Act should not be removed as a result of emergency guidance.’

The guidance states that local authorities should only exercise the ‘easements’ to the Care Act when it is proportionate to do so and:

  • ‘the workforce is significantly depleted, or 
  • demand on social care increased, to an extent that it is no longer reasonably practicable for it to comply with its Care Act duties (as they stand prior to amendment by the Coronavirus Act) and where to continue to try to do so is likely to result in urgent or acute needs not being met, potentially risking life.’

THE PROCESS

The guidance sets out a formal process by which such a decision should be taken, and includes that providers, service users, carers and the Department of Health should be informed of such a decision. It also contemplates the possibility of reorganising services more broadly to support portions of the service under pressure.

The guidance repeatedly emphasises that services should be conducted under the normal Care Act framework to the greatest extent possible, and notes that:

  • ‘Local Authorities should still assess people’s social care and support needs throughout this period and should make a written record of this assessment.’ The guidance notes that there exists flexibility within the Care Act to allow for proportionate assessments, and this flexibility may be used in a variety of ways to allow the service to continue. It notes that assessments may be subject to future reassessments, and different determinations may be taken on eligibility 
  • While Care Act-compliant care plans are not required, local authorities ‘should provide sufficient information to potential providers to allow them to make an informed decision as to whether to accept a referral…The Local Authority should ensure that providers receive enough information to develop a care plan with the person. This should give an overview of the person’s wishes and feelings, and outcomes that need to be considered and achieved.’
  • If local authorities revise care plans during the emergency period, they are obliged to involve the people for whom the care plans have been produced and their carers. 

THE ETHICAL FRAMEWORK

The guidance states that local authorities are expected to observe the previously published Ethical Framework for Adult Social Care, available at: https://www.gov.uk/government/publications/covid-19-ethical-framework-for-adult-social-care/responding-to-covid-19-the-ethical-framework-for-adult-social-care

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