A party seeking to restrict another's commercial activities must consider whether such terms are normal in similar, factual and contractual circumstances.
The Coronavirus Act 2020 (Coronavirus Act) sets out the temporary emergency measures that enable public bodies such as local authorities, NHS and the police to respond to the coronavirus pandemic. The measures are wide-ranging and impact on both existing legislation and regulations.
This high-level summary looks at what the emergency changes mean to adult social care in England, what the temporary suspension of duties are under the Care Act 2014, and regulations and the implications for those individuals who are reliant on care and support provisions from their local authority.
The impact of a severe coronavirus outbreak can result in a significantly reduced workforce due to sickness, imposed isolation, caring responsibilities, and a surge in social care enquires, making it potentially impossible for local authorities to fulfil their statutory duties under the Care Act 2014. In response to the pandemic, several duties under the Care Act 2014 have temporarily been suspended and some modified, to prioritise care and support packages for people with the most urgent and serious social care needs. Government guidance states that such powers should “only be used if demand pressures and workforce illness during the pandemic meant that local authorities were at imminent risk of failing to fulfil their duties and only last during the duration of the emergency”.
Changes to the Care Act 2014
The Care Act 2014 places explicit legal duties on local authorities to provide or arrange services for individuals and their carers with care and support needs in their local area. However, given the emergency period, temporary changes have been made to the Care Act 2014, which mean local authorities do NOT have to comply with the following duties in the normal way:
- Duties to assess the needs of the adult under section 9.
- Duties to assess carers needs under section 10.
- Duties to give written record of adult’s needs and carer’s assessment under section 12.
- Duties to determine eligibility for care and support under section 13.
- Duties to carry out financial assessment under section 17.
- Duties to meets adult’s needs under section 18 and carer’s need for support section 20.
- Duties to prepare care/support plan under sections 24, 25 and 27.
- Duties where an adult expresses a preference for accommodation.
- Duties to assess a child’s needs for care and support under Section 58 and 59.
- Duties where an adult moves from one local authority area to another under section 37 and 38.
- Duties for the transitioning of children to adult care and support.
The Coronavirus Act confirms that a local authority must still meet an adult’s needs for care and support under section 18 of the Care Act 2014, where necessary to avoid a breach of the adult’s human rights. Carers’ needs for support under section 20 of the Care Act 2014, must also be met where necessary to avoid a breach of the carer’s human rights. The Government gives examples of which rights could potentially be breached, that is, Article 2 ‘Right to Life’, Article 3 ‘Prohibition of torture’ and Article 8 ‘Right to respect for private and family life’ of the of European Convention on Human Rights (ECHR).
Safeguarding vulnerable adults
It is important to note that the Coronavirus Act does NOT affect the safeguarding protections in the Care Act 2014. This means that local authorities still owe a duty of care, under section 42 of the Care Act 2014, towards an adult who is experiencing or is at risk of abuse or neglect.
Implications and key points
These easements took legal effect on 31 March 2020, but should only be exercised by local authorities where the workforce is significantly depleted, or demand on social care increased, to the extent that it is no longer reasonably practicable for it to comply with its Care Act duties (as they stand prior to amendment 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.
The emergency measures in the Coronavirus Act are only temporary. They will be reviewed by Parliament every six months, and all assessments and reviews that are delayed or not completed will be followed up and completed in full once the easements are terminated.
Any change resulting from such a decision should be proportionate to the circumstances in a particular local authority. It is clear that they should comply with the pre-amendment Care Act provisions and related Care and Support Statutory Guidance for as long and as far as possible.
Prioritisation decisions made by local authorities must be made consistently and ethically, and by law, they must have regard to the Guidance – Responding to COVID-19: the ethical framework for adult social care issued by the Department of Health and Social Care.
If you are an individual and have a query about how this may impact your care and support package, then please contact Nsiem Akhtar, who specialises in complex community care legal disputes.
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