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 (see Assessment chapter);
- financial assessment: the local authority does not have to carry out financial assessments in compliance with Care Act requirements;
- 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. Financial Assessment Easements and Retrospective Charging
The easements enable the local authority to meet people’s care and support needs without a financial assessment.
Assessments can be conducted at a later date and charged made retrospectively, so long as the local authority has informed people that there may be a charge for the service in the future.
None of the fundamental principles underpinning the Care Act statutory guidance on charging and financial assessment (see paragraph 8.2 – 8.9 of the Care and Support Statutory Guidance) are removed or diluted. Therefore, if people are charged retrospectively, this should be based on a financial assessment in line with the Care Act and on the basis that people should pay what they can afford, and any charges are clear and transparent.
The local authority should always ensure there is sufficient information and advice available in suitable formats to help people understand any financial contributions that adults are asked to make, including signposting to sources of independent financial information and advice. This will be especially important if easements are used and will be critical to help people understand potential future costs, particularly when they may already be anxious and needing as much reassurance as possible.
Social workers, or other people providing this information, should also consider what information can be given to illustrate estimated likely charges for different options of relevant and appropriate care so that people have a good initial understanding of the type and range of costs involved. This could take the form of a table, with tailored cost information based on illustrative averages, and form part of an upfront declaration or agreement.
The existing statutory guidance (see 8.22 of the Care and Support statutory Guidance) already notes that a local authority may ‘choose to treat a person as if a financial assessment had been carried’. The local authority must satisfy itself based on evidence that the person can afford, and will continue to be able to afford, any charges due. This is known as a ‘light touch financial assessment’. A local authority may wish to conduct more of these types of financial assessments where doing so helps the prioritisation of timely care and support and mitigates capacity pressures. Where appropriate / helpful, the local authority can use the Department of Work and Pensions data as a quick standard assessment and follow it up at a later date to look into private pensions, capital or other finances.
The emergency provisions do not change existing guidance on, for instance, complaints, deliberate deprivation of assets, administrative fees and top-ups.
Deferred payment agreements (DPAs) will still be made available for eligible people once the financial assessment is completed at a later date (see Deferred Payment Agreements chapter). DPAs do require some financial information to enable the local authority to be sure they are not taking on an unsecured risk and to place a legal charge on a person’s property. DPAs should be raised as part of the routine sharing of relevant information and advice. See also Deferred Payment Agreements chapter.
4. Mental Capacity
The local authority is always expected, where appropriate, to consult and engage with family members, advocates and / or someone who has the legal authority to make financial decisions on behalf of people who lack capacity. This consultation and engagement should still take place as part of the financial assessment, which may be deferred until after the emergency period. Where the financial assessment is deferred in this way, it will be important as a minimum, to make people aware that there may be costs associated with the care and support provided. Individuals should be assured that no charges will be made until after a financial assessment has been completed.
The existing statutory guidance (see 8.50 of the Care and Support Statutory Guidance) makes it clear that the local authority is not required to charge carers for support and that, ‘in many cases, it would be a false economy to do so’. Carers already play a vital role in the care and support system and their contribution during this emergency period will be even more critical. In line with existing guidance, the local authority should, therefore ‘ensure that any charges do not negatively impact on a carer’s ability to look after their own health and wellbeing and to care effectively and safely’.