September 2020: This chapter was amended to reference advocates, as in the revised DHSC Easements guidance.
The Care Act Easements guidance sets out how the local authority can use the new Care Act easements created under the Coronavirus Act 2020 (see Coronavirus Act 2020 chapter), to ensure the best possible care for people during the COVID-19 pandemic. The easements came into force on 31 March 2020 and last for two years although they will be reviewed in Parliament every six months.
This is a summary of the information about assessments and other related information in Care Act Easements: Guidance for Local Authorities (Department of Health and Social Care). Click on the link to view the document in full. It should be read in conjunction with Responding to COVID-19: the Ethical Framework for Adult Social Care (Department of Health and Social Care).
The local authority should do everything it can to continue meeting its existing duties, prior to the Coronavirus Act provisions coming into force. The measures are time-limited and are there to be used as narrowly as possible.
2. What the Powers Change
The changes fall into four key categories, which apply when required during this time:
- assessment: the local authority will not have to carry out detailed assessments of people’s care and support needs in compliance with Care Act requirements;
- financial assessment: the local authority does not have to carry out financial assessments in compliance with Care Act requirements (see Charging and Financial Assessment chapter);
- review of care and support plans: the local authority does not have to review care and support plans in line with Care Act provisions (see Care and Support Planning and Review of Care and Support Plans chapters);
- eligibility: the duty to meet eligible care and support needs is replaced by a power to prioritise the most pressing needs (see Eligibility chapter).
3. Legal Position
In regard to assessments under the Care Act, there is no longer a duty:
- to assess adults or their carers; or
- carry out transitions assessments for young persons.
There is only a power to assess in each case. However, it is a requirement that assessments are carried out in such a manner that they comply with the Human Rights Act and / or common law principles of reasonableness, more specifically in regard to Article 8: the right to family life.
A duty to meet the needs of a disabled adult or carer does not arise unless the local authority considers that the failure to meet needs would result in a breach of their human rights. There can only be a power to meet needs for each individual case.
4. Needs and Carer Assessments
During this period, the local authority will still be expected to consider people’s needs and the easements only apply when it is no longer possible for Adult Social Care teams to carry out their Care Act duties in full.
The points in this section apply equally to people likely to be in need of care and support and carers likely to be in need of support.
The local authority 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; the right to private and family life under Article 8; and Article 14 Discrimination.
However, to ensure that the local authority is able to respond to increased pressures on the social care sector due to Covid-19, for the duration of the Coronavirus Act’s provisions, the local authority may have to reduce:
- the extent of a needs or carers assessment;
- check that people’s needs are eligible; or
- conduct a financial assessment.
The local authority should still assess people’s social care and support needs throughout this period and should make a written record of this assessment. Principal Social Workers should ensure that proportionate professional recording is maintained and may consider a single alternate document for local use.
It is crucial that the local authority is able to evidence its decision, demonstrate its professional judgement, apply the Ethical Framework for Adult Social Care, and where necessary, record that it has considered the Convention Rights.
It has been suggested that these rights could be breached by failing to provide these basic services:
- adequate toileting facilities;
- access to life-saving medications
- access to fresh food, water, and heating;
- access to assistance with personal care;
- support for communication with friends and family.
It may not be possible or necessary for assessments themselves to be face-to-face. The local authority should, therefore, consider whether assessments could be delivered through other means, taking into consideration people’s cognitive and communication needs and mental capacity, including:
- Use of a third-party / allied professional to carry out needs assessments as trusted assessors: It would also be appropriate for adults in need of care and support, or carers who are being assessed, to ask the local authority to liaise with other persons or professionals to help complete the check. Paragraph 6.99 in the Care and Support Statutory Guidance provides more information.
- Supported self-assessments: In many cases, and assuming the assessment document is in an appropriately accessible format, people, perhaps with help from family members or advocates, could complete a self-assessment form. Where existing online systems are available these should reflect any new assessment document options (see paragraphs 6.3 & 6.44 in the Care and Support Statutory Guidance).
- Assessments using the telephone or, if possible, other technology such as video calls: This is an option where available if people are comfortable with this and if they can be made available at the location where people are living (see paragraph 6.3 in the Care and Support Statutory Guidance). Click on the link to view guidance provided by NHSx: Information Governance.
The local authority should ensure that people are informed at the earliest opportunity that their needs may be assessed (or reassessed) in the future and that alternative services may then be arranged. It should be explained that the current situation is very unusual and that arrangements may be temporary and change when this period is over.
It will be important to explain to people that at a future date, a view will be taken on whether their needs are eligible under the Care Act. This may mean that at that date the local authority may no longer believe it is necessary to meet those needs, and that if this is the case, it will be necessary to agree on alternative arrangements.
The local authority needs to ensure that there is a clear and transparent pathway for people with care and support needs, carers and providers to quickly raise concerns should they believe either the decision or the care package is in breach of the European Convention on Human Rights and Section 59 of the Care Act (see Complaints chapter).
The easements also relieve the local authority of the duty to undertake assessments of children transitioning to adult social care under the Care Act (see Transition to Adult Care and Support chapter).
6. Assessments, Reviews, and Changes to Care Packages
The Care Act allows the local authority to prioritise and review in differing ways. It should continue to be as flexible as possible, and ensure it stays within Government guidelines of social distancing, shielding and self-isolating.
Decisions about assessments or reviews, and decisions to either reduce or alter care packages will have an impact on the people being supported as well as their carers. Such decisions must take account of risks both current and potential should the situation change for the person and/or their carers. Where people decide to cancel or suspend their own care and support and manage alone or with support of their own family and community networks, this will be for the most part be for the adult to decide for themselves. However, where there are concerns that this may lead to unmanageable risk or safeguarding issues, practice oversight should be applied. This should not undermine the views of the individual making the decisions about their care, but to ensure that where necessary, the local authority in conjunction with the individual and their family have considered the possible consequences and the principles of safeguarding have been upheld. (see Annex A of the Care Act Easement guidance).
The Hospital Discharge Service: Policy and Operating Model already allows for a proportionate approach to Care Act duties. However, it has not removed them and the local authority should, therefore, continue to comply with them.
For information regarding Section 4, Protections and Safeguards Annex D and Section 5 Principles to Govern Use of the Powers of the Care Act easements: guidance for local authorities (Department of Health and Social Care).
7. Interaction with other Changes
The changes to conducting assessment may also interact with: