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A seismic shift in local authorities’ obligations under the Care Act 2014

20.03.2020

By Peggy Etiebet 

Coronavirus Bill 2019-2021

The Coronavirus Bill had its first reading in the House of Commons yesterday (19.03.20) and it is due for its second reading on 23 March 2020. There is no real opposition to the Bill and it is believed it will pass without significant amendment.

How does this affect the Care Act 2014?

Clause 14 of the Bill fairly innocuously states, "Schedule 11 contains provision modifying the powers and duties of local authorities in England and Wales in relation to the provision of care and support."

It is only when one turns to schedule 11 that one realises the extent of the modifications. There are a number of provisions, including relating to financial assessments, charging and carers, which will bear close reading but key headlines are:

  • Paragraph 2: Local authorities do not need to assess or determine eligibility – the current sections 9 and 10 assessment duties and section 13 eligibility determination duties are no more. They are powers only.
  • Paragraph 4: Local authorities do not need to meet assessed eligible needs for care and support as in the current section 18. Instead, the duty has been significantly minimised - a local authority must meet an adult's needs for care and support if "the authority considers that it is necessary to meet those needs for the purpose of avoiding a breach of the adult's Convention rights".
  • Paragraph 11: Local authorities do not need to prepare care and support plans. The sections 24 (prepare plans), 25 (duties related to plans) and 27 (review plans) duties are no more. They are powers only.
  • Paragraph 16: This applies to existing and future services users.

What does this mean for Adult Social Care?

The explanatory notes to the Bill make it pretty clear what the Government intends it to mean:

"The immediate operationalisation of these provisions will involve the ceasing of current practices and is intended to reduce operational burden so local authorities can prioritise the service they offer in order to ensure the most urgent and serious care needs are met (my emphasis)."

What is considered necessary to meet needs for care and support for the purpose of avoiding a breach of Convention rights?

This will be the key consideration. There remains a duty to make some provision for those with care and support needs. But to what level? The relevant articles are Article 2 (right to life), Article 3 (right not to be subjected to inhuman or degrading treatment) and/or Article 8 (right to family and private life which includes one's psychological and physical integrity).

Although there is no right as a matter of course to welfare support there is the possibility that articles 3 or 8 may oblige a state to provide positive welfare support. This occurs for example in cases relating to those whose immigration status means that they are without recourse to public funds and are not in a position freely to return home.

However, for those who may access mainstream welfare benefits (DWP benefits, housing/homelessness) in R(on the application of MIV and others) v London Borough of Newham [2018] EWHC 3298 (Admin) it was noted that "the European Court of Human Rights has not held that a state has infringed article 8 (or article 3) as a result of a failure to provide suitable housing or welfare support." In this jurisdiction a breach of Article 8 was found in R (Bernard) v Enfield London Borough Council [2002] EWHC 2282 but it is generally accepted that this is an extreme case.

The thresholds will be high. The Court of Appeal in Anufrijeva v Southwark LBC [2003] EWCA Civ 1406 stated: "We find it hard to conceive, however, of a situation in which the predicament of an individual will be such that article 8 requires him to be provided with welfare support, where his predicament is not sufficiently severe to engage article 3".

A breach of Article 3, by analogy with no recourse to public funds cases, is generally held to be a lack of access to food and shelter – destitution. This is less likely to be material where service users have access to accommodation and benefits.

However, the judge in MIV was that "an individual's particular vulnerability by reason of their disability will be an important factor in considering whether their predicament was sufficiently severe to engage article 3."

As such local authorities will need to consider, for example, what needs a service user has to manage and maintain nutrition or manage toileting needs. These types of needs are more likely to result in a breach.

By contrast, it is more possible that discontinuing services provided to meet needs to develop and maintain family or other personal relationships or access work, training, education or volunteering or make use of necessary facilities or services in the local community would not result in a breach.

A warning

The explanatory notes talk of the 'ceasing of current practices'. Be wary of the hype. The Bill may have changed the legislation but it has not changed case law. Local authorities cannot lawfully reduce care packages without prior lawful assessment as there remains a power to provide. There will need to be some assessment undertaken to evidence that services that are provided fulfil the new reduced duty. There will need to be a consideration whether to exercise the discretion to provide a higher level of services in light of for example, the well-being provisions which have not been affected.

Guidance

Paragraph 18 of Schedule 11 states that the Secretary of State may issue guidance and the explanatory note indicates this will be done: "In order to support Local Authorities in operating under the new powers, including making prioritisation decisions in a consistent, and ethical manner, the Government will publish guidance." Informal government guidance (17.03.20) states:

"Local authorities will still be expected to do as much as they can to comply with their duties to meet needs during this period and these amendments would not remove the duty of care they have towards an individual's risk of serious neglect or harm. These powers would only be used if demand pressures and workforce illness during the pandemic meant that local authorities were at imminent risk of failing to fulfil their duties and only last the duration of the emergency. It would ensure that local authorities will continue to be able to deliver the best possible care services during the peak and to protect the lives of the most vulnerable members of society."

Initial thoughts

With local authorities and social workers already stretched, should the Bill be passed as is, initially it may not be the best value practice to look to reviewing existing care packages.

However, with new presentations to ASC, authorities can look to introducing a new streamlined assessment process and determination of what services to provide based on legal and practical guidance as to what may constitute, in different classes of cases, a breach of Convention rights. In time, as reviews fall due, this approach may be extended.