27/04/2020
The Coronavirus Act 2020 (the ‘Act’) came into force on 25 March 2020. The legislation is extensive and amends many duties and responsibilities of public bodies in existing legislation across the board.
Section 15 and schedule 12 of the Act makes extensive changes to Local Authority (the ‘LA’) powers and duties under the Care Act 2014 (the ‘CA 2014’), in particular to how they conduct care and financial assessments and to allow for changes in the way a LA prioritises care to children and adults in each area.
This Article addresses the key changes for LAs under the Act, however its scope is also relevant to CCGs, hospital discharge teams, home care providers, residential and nursing care providers and community social and health care workers.
Commencement regulations, published on 31 March 2020, have brought section 15 and schedule 12 of the Act into force in England. The Department of Health and Social Care has also published further guidance - ‘Care Act easements: guidance for local authorities’, (the ‘Care Act Easements Guidance’). Within the Care Act Easements Guidance, it states that LAs must comply with this guidance. However, the Act itself only requires LAs to have ‘regard’ to guidance issued. The Secretary of State has the power to direct LAs compliance with the Care Act Easements Guidance but has not, as at the date of writing proceeded to take such steps. In addition the Government has confirmed that the Ethical Framework for Adult Social Care also falls under schedule 12 and that LAs must also comply with this Framework.
Section 15 and schedule 12 of the Act need also to be considered alongside the Guidance “COVID-19 Hospital Discharge Service Requirements” published on 19 March 2020 (the “Discharge Guidance”) which sets out 4 pathways to facilitate an individual’s discharge from hospital into community based care.
The Impact Assessment accompanying the legislation provides that the provisions in S15 and sch12 have been introduced to ensure that LAs provide support to some of the most vulnerable people in society during the emergency period. In response to the increasing demand LAs will face to carry out assessments under the CA 2014, the provisions introduced aim to relax LAs’ extensive duties under the CA 2014 to ensure LAs can prioritise whose and what types of needs it will meet.
At What Point Can LAs modify their duties?
The Act, as in force from 31 March 2020 enable LAs to ease the relevant CA 2014 duties. However the Care Act Easements Guidance makes it clear that a Local Authority should only take a decision to begin ‘exercising the easements’ (relaxing the rules) when it is no longer reasonably practicable for it to comply with its CA 2014 duties 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 Care Act Easements Guidance states that any easements to the CA 2014 duties made by a LA should be proportionate to the circumstances and suggests that a LA could consider easements when, for example, the workforce is ‘significantly’ depleted, or there is increased demand.
The Care Act Easements Guidance (not the Act) sets out a clear process to be used by a LA when deciding if it should exercise any easements. The decision should be agreed by the Director of Adult Social Services in conjunction with or on the recommendation of the Principal Social Worker. The Director of Adult Social Services and the Principal Social Worker must ensure that their lead member has been involved as part of this decision-making process. The Health and Wellbeing Board should be kept informed and the decision should also be fully informed by discussion with the Local NHS CCG leadership.
If, at any time, the Government suspends provisions contained within the Act, public bodies will need to revert to their duties under the CA 2014. The Care Act Easements Guidance makes clear that the emergency legislation is temporary.
Of importance, the provisions of the Act which provides that LAs do not have to comply with a duty or modifies a duty, applies in relation to duties arising before Section 15 came into force i.e. it applies to any request for assessment that has already been made but for which the assessment has not yet taken place. It also applies if the section is “revived” in the future.
Assessments under the CA 2014 – What are the Changes?
Duty to Assess Care and Support Needs:
Under the Act, LAs are not required to comply with the duty to assess adults, children and young persons who may have care and support needs – and where applicable, the individual’s carer’s need for support. It is important to note that LAs are still required to undertake these assessments if a failure to do so may infringe ECHR Rights.
The Act does not prevent LAs from carrying out these assessments or making a determination in respect of an individual if the LA considers it appropriate to do so for the purposes of exercising its duties and powers in respect of sections 18 (duty to meet care and support needs), 19 (power to meet needs for care and support), 20/62 (duty and power to meet carer’s support needs) of the CA 2014. The Care Act Easements Guidance makes it clear that LAs should only deviate from their CA 2014 duties if it is no longer practicable for them to comply with these duties.
Should a LA identify an adult, child or young person who may have needs for care and support and for example, those needs appear to be urgent or severe, as well as patients ready for hospital discharge, a LA is entitled to prioritise those individuals and carry out its assessment duties.
Assessment of Financial Resources and Implications for funding care and support
LAs do not need to comply with the duty to undertake assessments of an individual’s financial resources under the CA 2014 where the LA has assessed an individual as requiring their care and support needs to be met.
It should be noted that LAs cannot charge for any care/support needs it is meeting under sections 18, 19, 20 or 62 of the CA 2014 whilst the LAs duties/powers to meet needs are suspended under the Act unless it has undertaken a financial assessment in accordance with section 17 of the CA 2014. However, there are provisions under Schedule 12 of the Act which enable LAs to carry out subsequent financial assessments whether during or after the emergency period and decide to charge under the CA 2014 (please see below).
The Government has confirmed that the cost of new or extended out-of-hospital health and social care support packages will be funded from the NHS COVID-19 budget during the emergency period in order to help the swift discharge of patients out of acute beds and into the community. CCGs are to co-ordinate the financial arrangements for the NHS Covid-19 spend and are to work in partnership with LAs, making use of existing pooling arrangements (such as section 75 NHS Act pooling and partnership agreements) and existing LA social care contracting routes.
It is well known that the social care sector is funded differently from the health care sector. Adult social care is means tested and those individuals with savings above the current threshold (£23,250), in normal circumstances, are required to pay for their social care costs themselves. Moreover, self-funders often pay a higher amount for their care than local authority funded service users. If LAs make use of the Act to modify their duty to conduct financial assessments, then the NHS COVID-19 budget may pick up packages of health and care support for both those who would have been LA funded individuals and those who would have been self-funders. It is not currently clear how transitional arrangements will address this in the future and how arrangements made during the emergency period will be treated in the future.
The Discharge Guidance acknowledges that CCGs and LAs, in applying the budget for care and support packages in the community, will reflect the appropriate market rate given that some individuals and some of the capacity being used would previously have been self-funded.
The schedule and the Care Act Easements Guidance, make it clear that where LAs are meeting the needs of an individual’s care and support without having conducted a financial assessment, a financial assessment will take place at a later date and the LA can then retrospectively charge that individual for its costs of meeting those needs, provided that the LA has made this clear to the person at the time the care is initially arranged or provided.
Alternatively the Government notes that the existing CA 2014 statutory guidance states that a LA may choose to treat a person as if a financial assessment had been carried out (see paragraph 8.22). In order to do so, the LA must be satisfied on the basis of evidence, an individual can afford and will be able to afford any charges due. The Care Act Easements Guidance suggests that LAs may wish to conduct more of these types of financial assessment to help the prioritisation of timely care and support and to mitigate capacity pressures. The LA would need to make sure it clearly records any light touch assessments.
A person, or their attorney or representative can of course ask an LA to not meet needs and can make their own private arrangements.
Neither the Act, nor the guidance changes the policy on the use of top ups (where a family may contribute an additional amount to the cost of someone’s care to facilitate personal choice or an enhanced service). However the Discharge Guidance makes clear that an individual’s preferences towards a particular care provider or service will be dealt with after discharge from acute settings, and must not delay swift discharge and may not be considered while the emergency act is in force.
Care and Support Plans:
During the enforcement of the Act, LAs do not have to comply with their duties to prepare care/support plans under sections 24 or 25 CA 2014. However, there is nothing to prevent an LA creating care/support plans if it considers it for example, necessary/imperative to the individual’s needs being met. The Care Act Easements Guidance states that LAs should continue with the CA 2014 duties unless it is unreasonably practicable to do so.
LAs are not required to comply with their duties under s.27 CA 2014 to keep care/support plans under review, carry out assessments due to a change in circumstances or reach agreement with individuals about any changes the LA proposes to implement to meet their needs. However LAs are not able to amend an existing care plan without consultation from the person to whom it relates, (or their representative).
Continuity of Care and Support when a Person Moves:
Under schedule 12 paragraphs 12 to 13, there are a number of variations to LA duties to notify when an individual informs the LA that they intend to move to the area of another LA under sections 37 and 38 CA 2014. These changes are not considered here but should you require advice, please get in touch with us.
Transitional Care:
Schedule 12 paragraph 15 of the Act, makes a number of variations to LA duties in relation to transitional arrangements for children to adult care and support. The CA 2014 requirements in this area have been relaxed resulting in a return to the scenario where there may be gaps in provision between services if the children’s services have ended before the adult social care packages have been put in place. These changes are not considered here but should you require advice, please get in touch with us.
Changes in Relation to Discharge of Hospital Patients with Care and Support Needs
Previously, Schedule 3 of the CA 2014 required an NHS body to give an assessment notice to a relevant LA where it was responsible for a hospital patient and considered that it would not likely be safe to discharge the patient unless arrangements for care and support were in place. Under the Act, a number of changes have been made to Schedule 3 of the CA 2014 – these changes are considered in our guidance on Continuing Healthcare and Funded Nursing Care and on the Hospital Discharge Guidance.
Whist changes have been made to discharge requirements, the Act still requires an NHS body responsible for a patient to provide an assessment notice to a relevant LA. On receiving an assessment notice, the LA must inform the NHS body:
- whether the patient has needs for care and support;
- whether carer has needs for support (where applicable);
- which, if any, of the patient’s needs the LA intends to meet; and
- how the LA plans to meet those needs.
Practical Tips
- It is likely that some form of assessment process will be required to allow LAs to implement care packages- such assessments will need to be proportionate.
- LAs should take active steps to record decision making in respect of care and need assessments- clear justification is required to support decisions.
- LAs need to ensure it continues to comply with its common law duties to act rationally and fairly in its decision making and document that it has done so.
- LAs should make decisions in accordance with Article 8 of the European Convention of Human Rights i.e. it should continue to involve individuals in decisions that affect them.
We will be issuing separate guidance notes on:
- Coronavirus Act 2020 – Hospital Discharge
- Coronavirus Act 2020 – NHS Continuing Healthcare and Funded Nursing Care
For specific advice please get in touch with:
For further support and advice relating to the impact of COVID-19, please view our COVID-19 Advisory Service Page.
