May 2020: Changes as a result of the Coronavirus Act 2020
New legislation and guidance have been issued by the Government in response to the Coronavirus / COVID-19 outbreak. The Coronavirus Act 2020 and the Care Act Easements: Guidance for Local Authorities outline changes policy and practice as a result.
Local authorities should continue to follow Care Act 2014 guidance (the Care and Support Statutory Guidance) unless it is essential to make changes in order to maintain services and manage pressures.
The changes are temporary, will be regularly reviewed and removed as soon as possible.
The Care Act 2014 came into effect on 1st April 2015.
The Care Act unites a number of different acts into one single legislative framework for adults with care and support needs and their carers.
It also introduced duties and requirements of local authorities in a number of areas, including safeguarding adults. It provides, for the first time, a legislative framework for those working in adult safeguarding. Each local authority must:
- make enquiries, or ensure others do so, if it believes an adult is experiencing or at risk of abuse or neglect (see Local Authority Duties under the Care Act 2014);
- set up a Safeguarding Adults Board (SAB);
- arrange, where appropriate, for an independent advocate to represent and support an adult who is the subject of a safeguarding enquiry or safeguarding adults review (SAR) where the adult has ‘substantial difficulty’ in being involved in the process and where there is no other appropriate adult to help them (see Independent Advocacy and Safeguarding Adult Reviews);
- cooperate with each of its relevant partners in order to protect adults experiencing or at risk of abuse or neglect (see also Integration, Cooperation and Partnerships).
2. Statutory Guidance
The Department of Health and Social Care issued the Care and Support Statutory Guidance for local authorities and partner agencies. From 1 April 2015 Chapter 14, Safeguarding, of the guidance replaced the previous statutory guidance No Secrets: Guidance on Developing and Implementing Multi-Agency Policies and Procedures to Protect Vulnerable Adults from Abuse (Department of Health, 2000).
3. Delegated Functions
See also Delegating Local Authority Functions
The Act does not allow certain functions to be delegated; safeguarding is one of those functions. Since the local authority must be one of the members of the Safeguarding Adult Board (SAB) and it must take the lead role in adult safeguarding, it may not delegate these statutory functions to another party.
4. Implications for Safeguarding Practice
The Care Act signals a major shift in safeguarding practice with a move away from a process led culture, to ensure a person centred approach which achieves the outcomes that people want. This should avoid the rigid application of a process and encourage practitioners to use the approach which best suits the adult involved.
As everyone has different preferences, histories, circumstances and lifestyles, it is not helpful to prescribe a single process that must be followed in all circumstances whenever a concern is raised.
5. Clauses of the Care Act
Below is a summary of the main clauses and whether these are new in legislation and / or policy, or consolidation or refresh of existing legislation. This is taken from the Care Act Clause Analysis, Local Government Association.
Creates a new statutory principle which applies to all functions under Part 1 (including care and support and safeguarding). Whenever a local authority makes a decision about an adult, they must promote the adult’s wellbeing.
The local authority is required to ensure provision of preventative services which help prevent / delay development of care and support needs, or reduce such needs (including carer support needs).
There is a duty on the local authority to carry out care and support functions with aim of integrating services with those provided by NHS or other health-related services.
Information and advice:
Provides for an information and advice service to be available to all people in the local authority area regardless of eligible care needs.
There is a general duty for the local authority to promote diversity and quality in the market of local care and support providers. The local authority must ensure a range of providers is available; shaped by demands of individuals, families and carers; services are of high quality and meet needs and preferences of those wanting to access services.
Cooperation general and specific:
There is a general duty to cooperate between the local authority and other relevant authorities which have functions relevant to care and support. It also supplements the general duty to cooperate with a specific duty where cooperation is needed for an individual who has needs for care and support.
How to meet needs:
This relates to adults who need care and carers; it is an illustration of how needs could be met to ensure flexibility.
This creates a single legal basis that requires the local authority to carry out an assessment, referred to as ‘needs assessment,’ where it appears an adult may have care and support needs. It also sets out what is to happen where adult or a carer refuses to have a needs or carer’s assessment.
Creates a single duty to assess carers. It requires the local authority to carry out an assessment (‘carer’s assessment’) where it appears a carer may have needs for support now or in future.
This applies to needs assessment and carers assessment, allows for regulations to specify further detail about assessment process, including requiring assessment to be appropriate and proportionate, specialist assessments, self-assessment, and considering needs of whole family.
This requires LAs to determine whether a person has eligible needs after a needs assessment or carer’s assessment has been completed. It provides for regulations which set out eligibility criteria, including minimum level of eligibility at which the local authority must meet care and support needs.
This gives the local authority a general power to charge for certain types of care and support, at its discretion.
Cap on care costs:
This allows for a limit to be established on the amount an adult be required to pay towards costs of meeting eligible needs over their lifetime. It also prevents the local authority from charging to meeting needs (other than daily living costs) once the limit has been reached. It provides for annual adjustments to the cap and adult’s accrued costs in line with level of average earnings. Please note: the Government will no longer progress with a cap on care costs in 2020, delayed from 2016.
This requires the local authority to undertake a financial assessment if they have chosen to charge for particular service under the power in the clause above.
Duty to meet needs:
This sets out circumstances establishing entitlement to public care and support for adults who need care. It describes conditions which must be met for duty on LAs to meet eligible needs.
Power to meet needs:
This provides broad power for the local authority to meet care and support needs in circumstances where a duty to meet needs (as above) does not arise. It also allows for the local authority to temporarily bypass carrying out assessment of needs, where care and support is needed urgently.
Duty to meet carers’ needs:
This establishes legal obligation to meet carer’s needs for support.
Exception for immigration:
This applies to adults subject to immigration control. It provides that the local authority may not meet care and support needs of such adults solely because they are ‘destitute’ or physical effects or anticipated physical effects of being destitute. If needs have arisen for other reasons (for example a disability rather than solely destitution), prohibition does not apply.
Exception for provision of healthcare services:
In meeting an adult’s or carer’s needs, the local authority may not provide healthcare services which are NHS responsibilities.
Exception for housing:
This provides the local authority may not meet adult’s care and support needs by providing general housing, or anything else required under other legislation specified in regulations.
Steps to take:
This sets out steps the local authority must take after carrying out needs assessment or carer’s assessment (and financial assessment where relevant).
Care and support / support plan:
This details requirements for inclusion in care and support plans (assessed adult) / support plan (carer).
This defines the personal budget as statement and set out financial information to be included in statement.
Review of care and support / support plan:
This requires the local authority to keep plans under review generally, and to carry out assessment where the satisfied person’s circumstances have changed. The adult can also make reasonable request to have review.
Independent personal budget:
This establishes the concept of independent personal budgets for adults with eligible needs, who choose not to have those needs met by the local authority. An independent budget is a statement recording how much of adult’s spending on care will count towards the cap.
This requires the local authority to keep a care account for adults whose care costs are counted towards the costs cap.
Choice of accommodation:
This provides the framework and powers to set regulations regarding choice of accommodation and other matters. Please note: the Government will no longer progress with a cap on care costs in 2020, delayed from 2016.
This consolidates existing legislation on direct payments. People with capacity can request a direct payment and where they meet conditions set out the local authority must provide direct payments to meet their assessed eligible needs.
This allows regulations to state when the local authority may or must enter into Deferred Payment or loan agreement which will allow people to avoid selling property or possessions.
Continuity of care:
This sets out the duties the local authority is under when an individual, and potentially their carer, notifies the local authority of the intention to move to another local authority area. It applies when a second local authority has not carried out assessment before the person moves. It requires the second local authority to provide services based on care and support plan provided by the first local authority. The second local authority must continue to provide this care until it has undertaken its own assessment.
This helps the local authority identify a person’s Ordinary Residence for purposes of providing care and support. It also provides a mechanism for the local authority to reclaim money spent providing care and support to someone for whom they were not in fact responsible.
This sets out the local authority’s responsibility for adult safeguarding: responsibility to ensure enquiries into cases of abuse and neglect; establishment of Safeguarding Adults Boards on a statutory footing; Safeguarding Adults Reviews on a statutory footing and information sharing. It repeals section 47 of the 1948 National Assistance Act, which confers power to remove someone from his or her home in certain circumstances. Also updates the duty to protect property of adults admitted to hospital or residential care.
This provides all care and support providers regulated by the Care Quality Commission are required to act in a way which is compatible with the European Convention on Human Rights.
This sets out the duty of English local authorities when providers fail. The local authority is required to temporarily meet the adult’s needs for care and support where they are no longer met as a result of provider failing. It applies to all individuals present in the local authority area whose needs the local authority is not already meeting, that is self-funders and those whose services funded by another local authority.
This introduces duties on the Care Quality Commission to assess financial sustainability of the most difficult to replace provider, and support the local authority to ensure continuity of care when providers fail.
Transition from childhood:
This places a duty on the local authority to assess a child, young carer or child’s carer before they turn 18, in order to help them plan if likely to have needs once they (or the child they care for) turn 18 and if will be ‘significant benefit’.
Places a duty on the local authority in specified circumstances to arrange an independent advocate to facilitate involvement of an adult or carer who is subject of assessment, care or support planning or review.
Recovery of charges, transfer of assets:
This allows the local authority to recover as debt any sums owed, such as unpaid charges and interest.
This requires the Secretary of State for Health to review how capped cost system is operating every five years. Review results can inform decisions on changing level of cap or other system parameters, for example general living costs.
This sets out the process for notification of discharge when an adult has care needs, and a requirement for assessment. It amends the mandatory system of fining / reimbursement where the local authority has not carried out its’ duties by the day of discharge, to discretionary.
Mental health after-care:
This clarifies after-care services provided under section 117 of the Mental Health Act 1983 to meet need arising from / related to mental disorder of person concerned. It aims to reduce the likelihood of deterioration in a person’s mental disorder (and therefore reduce risk of hospital admission for treatment).
This sets out responsibilities for provision of care and support for adult prisoners and people residing in approved premises (including bail accommodation). Such adults should have needs assessed by the local authority, and where they meet eligibility criteria services are provided by the local authority. Prisoners’ non-eligible needs will be met by prison.
This requires the local authority to continue to establish and maintain register of sight impaired people. It also enables the local authority to establish and maintain a similar register of those who need care and support or are likely to do so in future.
This gives the Secretary of State power to issue guidance to local authorities on how to exercise functions under the Care Act, following consultation.
This provides a power for local authorities to authorise a third party to carry out certain care and support functions.
Cross border placements:
This makes provision for a person ordinarily resident in England, with care and support needs and requires residential accommodation to meet those needs, to be provided with accommodation in another part of UK. It also allows for such placements in England for people ordinarily resident in Wales, or whose care and support is provided under relevant Scottish or Northern Irish legislation. Also there are similar arrangements for cross border placements not involving England i.e. Wales / Scotland, Scotland / Northern Ireland and Northern Ireland / Wales.