September 2020: This chapter has been amended to reflect changes in the Care Act Easements guidance, that is reference to advocates.
- 1. Introduction
- 2. Purpose of the Easements
- 3. What the Powers actually Change
- 4. Safeguarding
- 5. Steps local authorities should take before exercising the Care Act easements
- 6. Protections and Safeguards
This chapter outlines out how local authorities can use ‘Care Act easements’, created under the Coronavirus Act 2020 (see Coronavirus Act 2020 chapter), to ensure the best possible care for people during this exceptional period.
Whilst Care Act Easements: Guidance for Local Authorities, (published by the Department of Health and Social Care) is for Adult Social Care, it is important that partner agencies understand the changes that may take place in their local area. This chapter is a summary of the guidance.
The easements took legal effect on 31 March 2020 and will be in place for a period of two years (reviewed in Parliament every six months); they should only be implemented by local authorities where it is essential in order to maintain the highest possible level of services during the COVID-19 outbreak. They should otherwise comply with the pre-amendment Care Act provisions and related Care and Support Statutory Guidance for as long and as far as possible. See also Section 5, Steps local authorities should take before exercising the Care Act easements.
Local authorities 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 and the right to private and family life under Article 8.
2. Purpose of the Easements
Local authorities and care providers are already facing rapidly growing pressures during the COVID-19 outbreak, as more people need support because unpaid carers are unwell or unable to reach them and as care workers are having to self-isolate or unable to work for other reasons.
The Government has put in place a range of measures to help the care system manage these pressures. The local authority should do everything it can to continue to meet its duties prior to the Coronavirus Act. In the event it is unable to do so, it is essential that it can streamline present assessment arrangements and prioritise care so that the most urgent and acute needs are met.
These powers are time-limited and to be used as narrowly as possible.
3. What the Powers actually Change
The local authority will not have to carry out detailed assessments of people’s care and support needs as required by the Care Act. However, it will still be expected to respond as soon as possible (within a timeframe that would not jeopardise an individual’s human rights) to requests for care and support, consider the needs and wishes of people needing care, their advocates and their family and carers, and make an assessment of what care needs to be provided. Annex B, Care Act Easements: Guidance for Local Authorities (Department of Health and Social Care) provides more information.
3.2 Financial assessments
The local authority will not have to carry out financial assessments as required by the Care Act. It will, however, have powers to backdate charges to adults for the care and support they receive during this period. The local authority must inform adults, advocates and their families about this in advance and complete a financial assessment at a later date. Annex B, Care Act Easements: Guidance for Local Authorities (Department of Health and Social Care) provides more information.
3.3 Care and support plans and reviews
The local authority will not have to prepare or review care and support plans in line with the Care Act. It will however still be expected to carry out proportionate, person-centred care planning which provides sufficient information to all concerned, particularly those providing care and support, often at short notice. Where the local authority chooses to revise plans, it must also continue to involve people who use services, advocates and carers in any such revision. Annex B, Care Act Easements: Guidance for Local Authorities (Department of Health and Social Care) provides more information.
The duties on the local authority to meet eligible care and support needs or the support needs of a carer, are replaced with a power to meet needs. The local authority will still be expected to take all reasonable steps to continue to meet needs under the Care Act. In the event that it is not able to do so, the powers will enable it to prioritise the most pressing needs, for example enhanced support for people who are ill or self-isolating, and to temporarily delay or reduce other care provision. Annex C, Care Act Easements: Guidance for Local Authorities (Department of Health and Social Care) provides further guidance about the principles and approaches which should underpin this.
Adult safeguarding is working with adults with care and support needs to support them to keep safe from abuse or neglect. It is an important part of what many public services do, and a statutory responsibility of local authorities.
Safeguarding adults remains a statutory duty of local authorities to keep the most vulnerable safe from abuse or neglect.
The Coronavirus Act 2020 does not change the safeguarding protections in the Care Act, particularly at Section 42 of the Care Act. It is vital that local authorities continue to offer the same level of safeguarding oversight and application of Section 42. However, it is also important that safeguarding teams are proportionate in their responses and mindful of the pressure social care providers are likely to be under.
The Government recognises that safeguarding concerns and referrals may increase during the COVID-19 outbreak, with more people receiving support and support needs changing, which may prompt concerns. Safeguarding is everyone’s business, so it is important that we remain alert to possible abuse or neglect concerns. Local authorities, social care providers, the health voluntary sector and our communities must continue work to prevent and reduce the risk of harm to people with care and support needs, including those affected by COVID-19.
4.1 Prioritising responses
The immediate safety of the adult at risk and their carers must always be prioritised but where decisions are taken to prioritise responses to safeguarding concerns, the local authority Principal Social Worker / Safeguarding Lead will advise on any changes to the consideration of safeguarding types and referrals. Principal Social Workers must work with their safeguarding leads to review any local policies or procedures that may be unduly time consuming or place an undue burden on care providers during this time. For example, local authorities may make changes to those local processes and timescales that are not mandated by legislation. In addition, Principal Social Workers should reassure themselves that Section 42 decision making is proportionate and that safeguarding teams are actively communicating with partners. Any such decision will have been agreed by the Director of Adult Social Services.
4.2 The Ethical Framework
The Ethical Framework for Adult Social Care provides support to ongoing response planning and decision-making to ensure that ample consideration is given to a core set of ethical values and principles when organising and delivering social care for adults, including for safeguarding.
All providers of adult social care or health care have a key role in safeguarding adults in their care, and all agencies have a duty to ensure adults with care and support needs are not placed at risk of abuse or neglect by delays in care and support planning.
Employers must ensure that staff, including volunteers, are trained in recognising the signs and symptoms of abuse or neglect, how to respond, and where to go for advice and assistance.
A local authority should only take a decision to begin exercising the Care Act easements when:
- the workforce is significantly depleted; or
- demand on social care increased.
This should only be when it is no longer reasonably practicable for it to comply with its Care Act duties (as they stand prior to being changed 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.
Click here to view Care Act Easements – Decision-Making Tables which outlines the four possible stages of Care Act easements for local authorities (taken from Annex A, Care Acts Easements Guidance for Local Authorities).
Any change resulting from such a decision should be proportionate to the particular circumstances in the local authority. Social care varies greatly across local authorities and the decision to operate the easements should be taken locally.
It 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 and briefed as part of this decision-making process. The Health and Wellbeing Board should be kept informed. The decision should also be fully informed by discussion with the local NHS Clinical Commissioning Group (CCG) leadership.
It is important that any decisions made in relation to Care Act easements are informed by discussions with local partners, in particular local senior NHS leadership. Health and Wellbeing Boards should also be informed about a decision to start operating under the easements.
Recording by local authorities remains a priority and will them to ensure accountability and provide evidence for the thought processes behind the decisions they will be making.
6. Protections and Safeguards
The purpose of the easements is to ensure the best possible provision of care to vulnerable people in these exceptional circumstances.
In order to make sure that the easements are applied in the best possible way, with regard towards the needs and wishes of care users and their carers, the following protections and safeguards will apply.
- Assessment: all assessments and reviews that are delayed or not completed will be followed up and completed in full once the easements are terminated.
- Human rights: 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 and the right to private and family life under Article 8.
- Inspection: the Care Quality Commission (CQC) will continue to provide oversight of providers under existing legislation. Throughout this period the CQC will take a pragmatic approach to inspection and proportionate action as necessary while maintaining its overriding purpose of keeping people safe. See Coronavirus (COVID-19) information (CQC) .
Other important duties on local authorities remain in place:
- Wellbeing: Duties in the Care Act to promote wellbeing remain in place. See Annex D, Care Act Easements: Guidance for Local Authorities (Department of Health and Social Care) and Promoting Wellbeing chapter.
- Safeguarding: (see Section 4, above) Duties in the Care Act relating to safeguarding adults at risk remain in place. See Annex D, Care Act Easements: Guidance for Local Authorities (Department of Health and Social Care) and Safeguarding Enquiries section.
- Mental Capacity: Duties in the Mental Capacity Act 2005 relating to Deprivation of Liberty Safeguards (DoLS) remain in place. Guidance on the operation of DoLS during this period as been published separately. See Mental Capacity chapter and Deprivation of Liberty Safeguards chapter.
- Prevention, Advice and Information: Local authorities’ duties relating to prevention and providing information and advice also remain in place. The provision of information and advice for public reassurance will be particularly important during this period. To aid good communications, local authorities should continue to draw on relationships with trusted partners in the voluntary sector as well as on a full range of digital and other channels which help reach people with differing needs and in different circumstances during this period (for example to make up for the closure of libraries). See also Information and Advice chapter.
- Equalities: Duties imposed under the Equality Act 2010 also remain, including duties to make reasonable adjustments, the Public Sector Equality Duty and duties towards people with protected characteristics. These should underpin any decisions made with regard to the care and support someone receives during this period. See also Equality, Diversity and Human Rights in a Safeguarding Context chapter.