The Coronavirus Act 2020 and Social Care

The Coronavirus Act 2020 (“the Act”) came into law on 25 March 2020 and passed sweeping emergency legislation that is unprecedented in peacetime.

Whilst some provisions of the Act came into force on 25 March 2020, other sections require regulations to bring them into effect. In this blog post we shall consider some of the key provisions that relate to social care.

Care and Support from Local Authorities

The Act addresses the provision of care and support at s5 and Schedule 12. Schedule 12 effectively suspends most duties contained in the Care Act 2014. However, it must be noted that at the time of writing these provisions have not yet been brought into effect. This will, pursuant to s87(2)(d) of the Act, require regulations. These may well be brought into effect imminently.

The duties suspended by Schedule 12 of the Act include the duty to assess the eligible needs of an adult for care and support (section 9 of the Care Act 2014) and the support needs of a carer (Section 10 of the Care Act 2014). Local authorities do retain the discretion to carry out assessments under s9 or 10 of the Care Act 2014.

Most crucially Schedule 12 of the Act suspends the duty to meet the eligible needs of disabled people (Section 18 of the Care Act 2014) and their carers (Section 20 of the Care Act 2014). Local authorities will only have a duty to provide care and support to meet eligible needs if they consider it necessary for the purposes of avoiding a breach of the European Convention of Human Rights (“ECHR”). This is provided for at paragraph 4 of Schedule 12 of the Act. However, local authorities will retain a discretion to provide care and support.

Charging provisions

In normal circumstances once a Local Authority has carried out an assessment of needs and reached a determination that a person has eligible needs (see s13 of the Care Act 2014), and decided to exercise its discretion to charge for services (see section 14 of the Care Act 2014), it is under a duty to carry out an assessment of the adult’s social care financial resources (see section 17 of the Care Act 2014).

However, under paragraph 3 of Schedule 12, local authorities will no longer be required to carry out an assessment of financial resources under s17 of the Care Act 2014.

What happens where a local authority has exercised its discretion to meet a person’s eligible needs, as it may do pursuant to paragraph 1(4) of Schedule 12 of the Act, but has not carried out a financial assessment of the person’s resources? Or what if the local authority has had to take steps to meet eligible needs to avoid a breach of the person’s human rights, but, again, has not taken steps to assess the person’s finance, as the local authority is no longer required to do so? In these circumstances can the local authority carry out the financial assessment at a later date and charge the person for care and support provided? The answer is yes. Under paragraph 10 of Schedule 12 of the Act where the local authority has not completed an assessment of financial resources under s17 of the Care Act 2014 the local authority can do so subsequently and charge the person for care provided during the emergency period.

It will be worth bearing this in mind when advising clients seeking to obtain social care services from a local authority.

Human Rights and other considerations

There is no specific human right to social care or a positive obligation under the ECHR to meet care needs. The Act creates an entirely different legal landscape in relation to social care, and the law has been changed (for understandable reasons) at very short notice with minimal consultation. Depending on the approach taken by local authorities, in what will likely be very trying circumstances for them, community care lawyers may find that it becomes necessary to push the boundaries of what can be achieved in the field of social care by reliance on the ECHR. It’s easy to envisage very vulnerable people falling through the gaps as public bodies such as local authorities struggle to respond to this public health crisis.

The relevant human rights that may arise in the context of social care are likely to be the following:

• the prohibition on inhuman or degrading treatment or punishment – Article 3
• the right to liberty and security of the person – Article 5
• the right to respect for family and private life – Article 8

The existing case law sets a high bar for reliance on these rights. However, there are likely to be tests to the existing case law in the light of this current crisis.

As noted above, whilst many of the duties in the Care Act 2014 are removed by Schedule 12 of the Act, local authorities retain the power to carry out their functions under the Care Act 2014. A refusal to exercise that power could be challenged under conventional judicial review principles. Further, Schedule 12 does not affect the duty under s1 of the Care Act 2014, which requires local authorities to promote an individual’s well-being in exercising its functions under the Care Act. This may prove to be a useful prism through which to view local authority decisions about whether to exercise powers, which were formally duties.

NHS Continuing Healthcare

Where disabled persons health needs are sufficiently severe that they are classed as a “primary health need”, as opposed to a need for social care, such persons are the responsibility of the NHS and are entitled to receive support free at the point of delivery (as with all other services under the NHS).

Under s14 of the Act there is no longer a duty to carry out assessments of eligibility for NHS Continuing Healthcare. Likewise, there is no duty to comply with the National Framework for NHS Continuing Healthcare, which sets out what action must be taken before, during, and after an assessment of eligibility for NHS Continuing Healthcare.

This section of the Act is already in force from 25 March 2020.

Blog post written by William Ford, partner in the Housing and Social Care team