Five councils start bypassing Care Act duties under pandemic pressures

The government’s coronavirus Bill gave local authorities the power to suspend their legal duties to provide social care. The ‘easements’ to the Care Act 2014 remove the legal duty to meet certain needs unless it would breach human rights to do so. However, concern has been expressed about lack of transparency and the impact on vulnerable service users if councils used this power.

The Local Government Chronicle reports that Adult social care directors at Birmingham and Sunderland city councils, Warwickshire CC, Solihull MBC and Middlesbrough Council have implemented the ‘easements’ to help the care system manage rapidly growing pressures. Staffordshire CC has also said it is planning to ‘switch on’ Care Act easements in the future.

Under the easements, councils no longer need to fulfil their previous duty to carry out assessments of individuals’ and carers’ needs, the provision of detailed care plans, or the duty to meet the needs of someone assessed as eligible for care and support.

Local authorities implementing the easements do not have to carry out financial assessments, but can charge people retrospectively for the care they receive and undertake a later financial assessment. Councils also do not need to prepare or review care and support plans.

The decision to implement the Care Act easements has already drawn criticism on social media from disability activists and comes at a time of increasing concern about the legal implications of emergency decisions made by public sector bodies grappling with the crisis.

Polly Sweeney, partner at law firm Rook Irwin Sweeney that focuses on social care and judicial review, criticised councils for not publicising their decisions to enact the easements.

“The [government] guidance is clear, authorities have to go through a formal decision making process and make public their decision, and that has to be done in such a way that it is accessible to carers and people with disabilities,” she told LGC. “It is a very serious decision to dis-apply legal duties and there is currently no real transparency around it.”

To apply easements, councils need to use a four-stage decision-making process laid out in guidance. Any council at stages three or four must notify the Department of Health & Social Care it is operating some or all of the allowed easements.

Birmingham has posted a notice on its website, but Ms Sweeney claims this does not go far enough and according Local Government Chronicle other councils have not yet posted statements publicly online.

The Local Government Association claims that the new legislative changes put councils in “uncharted territory” and warn that councils may be challenged on their decisions.