This note summarises some key considerations for Local Authorities ("LAs") in light of the Care Act 'easements' and the Government's Action Plan for Adult Social Care ("Action Plan"). In meeting the needs of individuals within their areas, LAs may directly provide services, including care home accommodation, community based support or information and advice services. Alternatively, they may pay for these services and/or commission them through partner organisations. We have also prepared separate guidance for adult social care providers which may assist in this regard. If you are interested in this further guidance, please contact Vikki Woodfine, Head of Regulatory, Compliance and Investigations (North West).
1. Introduction: Care Act Obligations
The Care Act 2014 reformed the law relating to the provision of adult social care and created statutory duties for LAs in respect of adult social care provision. These duties include to:
- promote individual wellbeing (which includes personal dignity, physical and mental health and emotional wellbeing, and protection from abuse and neglect) (section 1);
- promote the integration of care and support services with the NHS and other healthcare services (section 3);
- establish and maintain a service for providing people in its area with information and advice relating to care and support (section 4); and
- cooperate with relevant partners (including local NHS bodies, DWP and the police) to provide services and support (section 6).
These general duties continue to apply during the current pandemic.
Duties relating to safeguarding also remain in place. LAs must make enquiries of an adult with care and support needs where they have reasonable cause to suspect that they are experiencing (or are at risk of) abuse or neglect, and where, as a result of their needs, they are unable to protect themselves against such abuse or neglect (or the risk of abuse or neglect) (section 42).
Safeguarding Adults Boards (SABs), which LAs must establish under the Act, must conduct Safeguarding Adults Reviews (SARs) where:
- an adult has died and it is known/suspected that the death resulted from abuse or neglect; or
- an adult is alive and it is known/suspected that the adult has experienced serious abuse or neglect and there is a concern that partner organisations could have worked more effectively to protect them.
Unfortunately, there is a risk that the additional burden on the sector at this time may mean that there is an increased need for LAs to operate their safeguarding duties in respect of adults in social care settings. Guidance on the exercising of safeguarding functions during the pandemic is provided by the Department of Health and Social Care.
COVID-19 temporary easements to needs assessment duties
In normal times, LAs are under a duty to assess the needs of adults and carers (current or prospective) who appear to require care and support (sections 9 and 10). Following this, LAs must consider whether the needs meet the eligibility criteria for a provision or service (section 13) and, if they do, must consider what can be done to meet their needs (whilst ascertaining where the individual is ordinarily resident, and whether they want their needs met by the LA).
The new Coronavirus Act 2020 has introduced temporary easements to the Care Act 2014 which are intended to allow local authorities to focus on those with the most urgent or acute needs. Under these changes, LAs are no longer required (but still have the power) to assess the needs of adults and carers, make eligibility determinations, carry out financial assessments, or prepare care and support plans in line with pre-amendment Care Act provisions.
To date, seven LAs have started to use the easements. However, any decision-making must be considered alongside the guidance issued by the Department of Health and Social Care, which states that easements should only be exercised where it is essential to do so, and that LAs should comply with the pre-amendment Care Act provisions for as long and as far as possible.
As such, LAs should only take a decision to begin exercising the easements when the 'tipping point' is reached, i.e.
"when the workforce is significantly depleted, or demand on social care increased, to an extent that it is no longer reasonably practicable for it to comply with its Care Act duties (as they stand prior to amendment by the Coronavirus Act) and where to continue to try to do so is likely to result in urgent or acute needs not being met, potentially risking life".
When Care Act easements are implemented, there is an expectation that LAs will do everything they can to continue to meet needs as set out in the Care Act. Therefore, they are expected to move to a position of streamlining services, prior to taking any decision to implementing a whole system prioritising of care and support.
LAs must remember that they remain under a duty to meet needs where failure to do so would breach Convention Rights.
2. Role of Local Authorities in the Government's Action Plan for Adult Social Care
The new Adult Social Care Action Plan highlights the central role that LAs are expected to play in managing the current pandemic. This includes:
- Distributing PPE provided by central Government via Local Resilience Forums (para 1.15);
- Supporting providers in the management of outbreaks (whether or not the care provider has a contract with the LA) (para 1.25);
- Identifying and securing alternative local provision of accommodation and care for service users where care homes are unable to accommodate them, working with the NHS and in accordance with the NHS Discharge Requirements (para 1.32);
- Using funding to assist with additional costs facing the sector, including those relating to staffing (2.26);
- Continuing to support people to maintain their independence by, for example, taking a flexible approach to the use of direct payments (para 3.4 to 3.9);
- Ensuring additional funding is provided quickly to the frontline to protect providers' cash flows; monitoring the ongoing costs of care delivery; and adjusting fees to meet new costs. LAs will need to provide Government with information about the distribution of this funding to providers (paras 4.1 to 4.5);
- Taking difficult resourcing and prioritisation decisions, assisted by the Care Act easement measures (discussed above). In doing so, they must follow the principles in the Government's Ethical Framework for adult social care, and the decision to use the easements must be carefully considered, taken in line with the guidance, taken only as a last resort and must be well documented. Decisions are to be communicated as per the guidance (paras 4.6 and 4.7);
- Continuing with their duties under the Care Act 2014 in overseeing provision and ensuring continuity of care for individuals within their area. This is particularly the case given the additional pressures on care providers. LAs should work with providers, LRFs and the NHS to address local risks (paras 4.13 to 4.18);
- Playing the lead role in responding to emergencies in relation to adult social care, under the Civil Contingencies legislation (paras 4.19 and 4.20);
- Ensuring they have the "strongest possible" intelligence about risks to continuity of service. The Capacity Tracker will provide daily information about bed capacity, workforce absences, PPE levels and other risks. Further information is being collated by CQC. This will inform action taken by LAs (paras 4.23 to 4.25); and
- Engaging with Ministers through regional Directors of Adult Social Services (DASSs) to discuss challenges and support required (paras 4.25 and 4.26).