The emergency Coronavirus Act 2020 came into force on 25 March 2020. It introduced wide-ranging governmental powers and changes to legislation in response to the pandemic. The new law allows the mandatory, enforceable duty to meet a person’s needs in the Care Act to be suspended. This has effectively downgraded the duty to a power only, with the one exception where meeting these needs is necessary to prevent a breach of human rights. This covers all assessment, eligibility and review duties for service users and carers.
The Department of Health and Social Care has issued guidance to the law, saying councils can individually choose whether to adopt this easement but have to follow a process of very thorough consideration before doing so.
As of late May, only six councils were known to have easements in place. Asking your council where it stands is essential if you are undergoing a review or are new to adult social care. Despite the lack of parliamentary opposition to amendments to the law, there is genuine political concern over the implications of this move, which sweeps away 25 years of progress towards a rights-based approach. The fear is that carers, already weighed down with the stress of the crisis, will feel they have no practicable way of saying “no” to requests for even more help – on top of that squeezed from an already-underfunded social care system.
Some protection from legal liability for breach of statutory duty is provided for, retrospectively, for an unspecified period, and also going forwards (even when the worst is over) given the time it will take to catch up and resume normal service.
A shortage of money is not thought behind this law but issues such as staff shortages, access to buildings and social distancing. However, the act – by removing the bottom-line legal duty on councils to meet needs – means care providers will have no leverage at all in relation to protecting their legitimate business interests by setting fees that properly compensate them for the risk they take, even after a period of intense contribution in the national interest.
What will happen after the crisis?
The act stipulates that, in any future proceedings to determine whether a local authority has complied with its duty to carry out a relevant assessment within a reasonable period, a court must take into account (among other matters): the length of time for which the new provisions had effect; and the number of relevant assessments that need to be carried out by the local authority following the end of this period.
We interpret this to mean that the downgrading of duties into discretions and the unlikelihood of any court feeling able to say findings of unlawfulness or restitution must follow breach of Care Act duties will last for a lot longer than two years.
Courts are specially obliged to look at the difficulty of a return to normal before declaring a breach of statutory du
ty. The difficulty, of course, depends on what becomes of social services and funding in the longer term.
We do understand that the Care Act has had to “give” a bit during the crisis. We do not actually envisage issuing proceedings against any councils where there are gaps in services due to coronavirus but where best endeavours are genuinely being made.
Any sane person who is remotely switched on to what is happening right now would likely have understood these are difficult times – and have better things to do than seek redress for its own sake. The British public is not unreasonable or money-grubbing in our experience.
So, for now, all bets are off. To us, these measures look like opportunistic power grabbing to suspend vital legislation that has been extremely hard won; we were relieved the Commons and Lords debates made the enormity of what could happen under this law clear to MPs and peers on all sides.
CASCAIDr believes these measures could operate against the public interest and are not necessary in a democratic society. However, we want to support councils to do the best they can and to do it as lawfully as possible, and trust them to at least try to operate ethically.
It remains to be seen whether the vision for coping in this act will constitute a decent stab by the government at doing whatever it takes to support vulnerable people though this crisis. Efforts do not seem to have worked so far for care home residents, whichever client group one considers.
● Download CASCAIDr’s full guide to the new law at: https://tinyurl.com/wb772gj
● To see the full act: https://tinyurl.com/ y7wrwt6r
Belinda Schwehr is chief executive of legal advice charity CASCAIDr (www.CASCAIDr. org.uk)