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legal

Care law changes under coronavirus

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

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