29 May, 2020
The stresses upon and the challenges faced by Social Care in the current environment are multitude. The social restrictions created by lockdown, as well as the effect of the virus on staffing create a situation of unprecedented demand for services and intervention. This was anticipated by Government, hence the inclusion of section 15 and schedule 12 of the Coronavirus Act 2020 which essentially free Local Authorities of certain duties under the Care Act 2014.
Schedule 12 frees Local Authorities from their duty to complete assessments of adults in need of care and support, and children expected to have such needs on attaining 18, including carers. It also releases Local Authorities from their duty to complete care plans and meet needs for care and support unless it is necessary to meet those needs to avoid breaching the persons human rights.
The guidance provided by the Government in support of the legislation clearly states an expectation that Local Authorities should do everything they can to continue to meet their duties and should only decide to depart from the pre COVID-19 position when it is no longer reasonably practicable to do so. The fact that so few Local Authorities have thus far informed the DHSC of their intention to invoke the easements provided by the Act strongly suggests that this unprecedented step is not being used lightly. But what risks remain to a Local Authority taking this step?
The huge caveat within schedule 12 is the reference to Local Authorities being released from duties unless it is necessary to meet those needs to avoid breaching a person's human rights. The question for Local Authorities taking this step is therefore, how will they know without the benefit of assessments?
People who may have been coping well and been relatively independent or appropriately supported pre- COVID19 may not now be in the same position. State mandated restrictions on their ability to gain community access and support will inevitably make needs greater in some case and increase vulnerability. Both the vulnerable adult and potentially their carers, being deprived of services, will create tension within households.
As there would no longer be a duty to continue to provide Children's Services when the adult process has not been completed by the time the child turns 18, this potentially creates a cliff edge for those children requiring ongoing support.
To defend any challenge around article 8 ECHR it is likely that some consideration around transition requirements for children entering adult care will be needed and evidence of involvement and consultation with the vulnerable adult will be required with regards to withdrawal or reduction in care, even if there is no longer a duty to prepare care and support plans.
There is a general need to balance the needs of those seeking provision with the needs of the wider community along with the staffing and ability to provide such support. However, the Courts may not be tolerant of a Local Authority that is challenged, seeking merely to say how difficult the situation is/was generally. This is unlikely to be accepted as a blanket reason that can be applied to all decisions.
Any decision therefore to withdraw or reduce care and support will need to be documented. Although the general position and the status of the Local Authority generally will be relevant, the effect of the restrictions and decisions to be taken with regards to each individual case will still need to be recorded. This should include all options that have been considered to support the person and why such were not available or suitable. Although reduced staffing level is a reason why a Local Authority might invoke schedule 12, I do not believe that it will be an excuse accepted by the Courts for not recording reasons and decisions in each individual case.
The purpose of the Act was to reduce pressure on Social Care departments in a time of unprecedented demand. However, the need to avoid blanket policy decisions and consider individual needs to avoid HRA challenges may result in a limited reduction in workload in reality.