Coronavirus Act 2020 social care briefing

Here we summarise the main changes introduced by the Coronavirus Act in the areas of social care and continuing healthcare

The Coronavirus Bill has now become the Coronavirus Act 2020. The Act sets out emergency laws in relation to the coronavirus crisis. This briefing is an overview of key changes introduced by the Coronavirus Act in the areas of social care and continuing healthcare (CHC).

You can read the full briefing below or download a copy here: Changes introduced by the Coronavirus Act 2020.

Changes introduced by the Coronavirus Act 2020 to Continuing healthcare and social care duties

Continuing healthcare

The Act has suspended the duties Clinical Commissioning Groups (CCGs) had to carry out an assessment for eligibility for CHC support and the duty to have regard to the national framework for continuing healthcare.  It means CCGs have much greater freedom now to decide how they will meet the needs of people on continuing healthcare support.

Suspending duties in the Care Act 2014

The Coronavirus Act’s provisions related to the suspension of the duties in the Care Act 2014 were brought into force from the 31st of March 2020, but the Secretary of State has a power to disapply them.

The Department of Health and Social Care (DHSC) has issued a guidance that local authorities have to follow when implementing these provisions: https://www.gov.uk/government/publications/coronavirus-covid-19-changes-to-the-care-act-2014/care-act-easements-guidance-for-local-authorities

This guidance also leaves decisions on when to trigger the relaxation of the Care Act framework in their area to local authorities and details the steps local authorities need to take to implement the easements.  Those are set out in part 6 of the DHSC’s Guidance.

Duties that will change

You can find detailed information about how the new regime should operate in the DHSC’s Guidance.

  • The local authority will not have a legal duty to assess needs in accordance with the Care Act, however it will have to carry out a proportionate assessment and keep a record of person’s needs. The duty to carry out transitional assessments for young Disabled people who are moving from children’s to adult social services are also suspended.
  • The local authority will not have a duty to determine which needs are eligible in accordance with the Care Act eligibility framework.
  • The local authority will not have to develop a Care Act compliant care and support plan, but it still has to develop a support plan and involve individuals concerned
  • Local authorities are no longer required to carry out reviews, but they can still do so and if so, they have to involve individuals in the process.
  • Local authorities are no longer required to carry out financial assessments, but they will be able to carry them out and charge retrospectively
  • Local authorities no longer have duties to carry out transitional assessments for young Disabled people moving form children’s to adult social services and no longer have duties to continue support in transition period, unless it is necessary to prevent the breach of a person’s human rights.
  • Most importantly, local authorities will no longer have a duty to meet eligible needs, but they still can choose to do so under the Care Act Easements guidance says Local Authorities will still be expected to take all reasonable steps to continue to meet needs as now.  

Local authorities will remain under a duty to meet needs where failure to do so would breach an individual’s human rights under the European Convention on Human Rights. These include, for example, the right to life under Article 2 of the ECHR, the right to freedom from inhuman and degrading treatment under Article 3, right to liberty under Article 5 and the right to private and family life under Article 8.  You can find more information about the Human Rights Act and how it protects Disabled people on our website: https://www.disabilityjustice.org.uk/take-action/human-rights/

It is worth remembering that even when the local authority chooses to implement the easements scheme it still needs to decide whether to exercise their powers having regard to a person’s wellbeing and having regard to The Ethical Framework for Social Care.  

Therefore although they are not legally obliged, they still have a power to continue complying with the Care Act legal framework and they have to make rational and lawful decisions when exercising this power.

Charging

If the local authority decides to meet a person’s needs and they would have been able to charge and did not carry out the assessment of finances, they can do it retrospectively as long as the person received information that stated social care is means tested and a charge may apply.  

What duties remain:

Although many duties have been suspended, it is important to remember that many duties still remain.  Some of those are:

  • The duty to promote wellbeing
  • The duty to provide information and advice
  • Duties to involve
  • Prevention duties
  • Safeguarding duties
  • Advocacy duties
  • Equality Act including public sector equality duty, which applies to policies and decisions in individual cases
  • Duties under the Human Rights Act

 1 April 2020