COVID-19: A ‘draconian’ Act?
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Marc Bloomfield
Steve Broach and Alice Irving summarise the main impacts of the Coronavirus Act 2020 on the rights of disabled people and those with mental health conditions.
The current public health crisis is impacting disabled people and those with mental health conditions disproportionately. The pandemic is heightening social and health care needs in many cases, as care workers become unavailable through ill health, services close, and mental and physical health conditions are exacerbated during lockdown. On top of this, as public services come under pressure, the government has enacted the Coronavirus Act 2020 (CvA), which in many contexts downgrades the duties owed to vulnerable individuals. During its rapid passage through parliament, Baroness Tanni Grey-Thompson described it as ‘draconian’ legislation in relation to its impact on disabled people (Hansard HL Debates vol 802, col 1660, 24 March 2020).
Social care
The headline is that the CvA suspends or modifies core duties owed by local authorities to adults in need of social care. However, it leaves the social care duties owed to children largely untouched, save in relation to transition to adult services.
The Department for Education (DfE) issued Coronavirus (COVID-19): guidance for local authorities on children’s social care on 3 April 2020. It suggests that local authorities may not have to fully meet their statutory duties during the crisis. However, this is at odds with the CvA, which leaves social care duties in relation to children in full force. On 17 April 2020, a coalition of children’s charities wrote to the secretary of state asking for the guidance to be amended.
For adult social care, the relevant provisions of the CvA are s15 and Sch 12, which were brought into force by regulations from 31 March 2020. Schedule 12 removes the obligation on local authorities to comply with, among others, the following social care duties in the Care Act 2014:
the duty to assess an adult’s needs for care and support (s9);
the duty to determine whether a person has ‘eligible needs’ (s13); and
the duty to prepare a care and support plan where a person has ‘eligible needs’ (s24).
Under the CvA, a local authority is no longer under an obligation to discharge these important duties. Nevertheless, local authorities still have the power to carry out these functions.
Normally, where an adult has ‘eligible needs’, Care Act 2014 s18 places a duty on a local authority to meet those needs (and s20 does the same in relation to carers’ eligible needs). CvA Sch 12 significantly modifies these obligations:
in England, local authorities are now only under a duty to meet an adult's (or carer’s) needs for care and support if ‘the authority considers that it is necessary to meet those needs for the purpose of avoiding a breach of the adult’s [rights under the European Convention on Human Rights (ECHR)]’ (Sch 12 paras 4 and 6); and
in Wales, there is no longer a duty to meet the care and support needs of an adult, unless the local authority considers this to be necessary ‘in order to protect the adult from abuse or neglect or a risk of abuse or neglect’ (see Social Services and Well-being (Wales) Act 2014 s35(3)(b)).
The most relevant ECHR rights will be article 2 (right to life), article 3 (prohibition of inhuman or degrading treatment) and article 8 (right to private and family life). In normal times, there was a degree of judicial reluctance to find that a failure to provide care had led to such serious consequences that human rights had been breached. In the present crisis, though, a different approach might be taken. However, even if judges start to apply a more generous approach, there can be no doubt that the threshold for the court to identify a human rights breach through the non-provision of care will remain high.
Further, while the CvA appears to give effect to a wholesale downgrading of core social care duties, the statutory guidance issued under the Act takes a very different approach. The key features of Care Act easements: guidance for local authorities (Department of Health and Social Care (DHSC), updated 1 April 2020) are:
Local authorities should comply with the pre-amendment Care Act 2014 provisions and related Care and support statutory guidance (DHSC, updated 2 March 2020) for as long and as far as possible:
A local authority should only take a decision to begin exercising the Care Act easements when the workforce is significantly depleted, or demand on social care increased, to an 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.
In particular, the guidance mandates that local authorities should apply a specific local decision-making process in relation to the decision about whether to ‘switch on’ the downgraded statutory scheme in their area. This process is set out in detail in Annex A to the guidance and comprises four stages, of which stage 3 is ‘Decision to operate under Care Act easements as laid out by the Coronavirus Act’. The guidance states that:
The relevant assistant director/senior manager will need to consult the principal social worker and be clear about the: reason the decision needs to be taken; impact of the decision on the people who ordinarily use the service; and impact of the decision on families and carers of people who ordinarily use the service.
If the principal social worker is satisfied that the Care Act easements need to be enacted, a meeting of the senior management board should be called for a final decision. The decision should also consider and be informed by a conversation with the local NHS leadership.
The director of adult social services and the principal social worker should ensure that their lead member has been involved and briefed as part of this decision-making process.
DHSC should be notified.
In making decisions to streamline and prioritise provision of services, local authorities should observe Responding to COVID-19: the ethical framework for adult social care (DHSC, 19 March 2020) (although the principles in the ethical framework do not seem to provide any specific guidance as to how to prioritise the provision of care).
While the duty to carry out detailed assessments is suspended, local authorities will still be expected to respond as soon as possible to requests for care and support, and to make an assessment of what care needs to be provided. Similarly, while there is no longer a duty to prepare care and support plans, local authorities are still expected to carry out proportionate, person-centred planning.
Currently, local authorities are only required under the CvA to ‘have regard’ to the guidance (although the secretary of state – the health and social care secretary – has the power to direct local authorities to comply with the guidance). As such, the guidance (including the process by which the ‘easements’ are to be given effect locally, as set out above) does not appear at present to be mandatory for local authorities as a matter of law, although no doubt there will be huge pressure on local authorities to follow it as a matter of policy.
At the time of writing (22 April 2020), it is thought that a small handful of local authorities have triggered the ‘easements’, although the DHSC has not yet responded to requests to publish the list of local authorities who have notified it that they are at ‘stage 3’ under the guidance (see above).
A few further important points in relation to the implications of the CvA for adult social care are:
The CvA does not alter the Care Act 2014 duty to promote individual wellbeing (s1), the safeguarding duties (including s42) or the duty to involve adults needing care in any review of care provision (s27(3)). The latter duty means that an individual’s care package should not be reduced during this crisis without their involvement in the decision-making process.
The duty to carry out a financial assessment, to determine whether a person should be charged for care and support, is suspended by the CvA. Where a financial assessment has not been carried out, a local authority cannot charge for social care. However, when the public health crisis ends, the local authority may choose to carry out a financial assessment and retrospectively charge for services provided during the crisis.
The Care Act 2014 provisions that deal with the transition from child to adult social care are suspended. This means that a disabled child who turns 18 shortly may lose their services and not immediately benefit from adult services, unless the failure to provide adult services would amount to a breach of human rights.
Most recently, the DHSC published Coronavirus (COVID-19): guidance for people receiving direct payments (21 April 2020). Among other things, this guidance suggests that people who employ personal assistants or carers via direct payments should urgently review their support arrangements, to ensure there are contingency plans should an assistant or carer be unable to work due to sickness. It advises individuals who find themselves without support and without alternative arrangements to contact the adult social care team or clinical commissioning group (CCG) team that provides their direct payments, who will assist in arranging support.
The guidance further confirms that ‘local authorities and CCGs should adopt a flexible approach to how direct payments are utilised during this period, to ensure that appropriate care is delivered’. It recognises that it may be necessary, in some circumstances, for family members to step in and provide support. Accordingly, local authorities and CCGs ‘should consider requests to pay a close family member to provide care if deemed necessary’.
NHS Continuing Healthcare
The distinction between local authority-funded social care and NHS Continuing Healthcare is not altered by the CvA. Accordingly, where an adult has a ‘primary health need’ (see NHS Commissioning Board and CCGs (Responsibilities and Standing Rules) Regulations 2012 SI No 2996 reg 21), the relevant CCG remains responsible for funding their care.
CvA s14 suspends the duties on CCGs and NHS trusts to assess adults for NHS Continuing Healthcare and the duty to have regard to the National framework for NHS Continuing Healthcare and NHS-funded nursing care – October 2018 (revised) (DHSC, March 2018). However, CCGs and NHS trusts still have the power to carry out assessments.
Again, the effect of this is that the CvA strikes at the core process by which adults access NHS Continuing Healthcare. Without an assessment that finds they have a ‘primary health need’, an individual will not be eligible for NHS Continuing Healthcare. However, unlike in the social care context, where a person has been or is assessed as having a ‘primary health need’, the CvA does not alter the CCG’s responsibility to meet their needs.
Mental health
CvA s10 and Sch 8 modify mental health and capacity legislation. However, they have not yet come into force. The general thrust of Sch 8 is that safeguards in the Mental Health Act 1983 will be loosened if it is brought into force. For example:
The admission and detention of a patient for assessment (s2) or for treatment (s3) will only need to be founded on the written recommendation of one registered medical practitioner, instead of two.
The procedure to be followed when medicine is administered to a patient, without their consent, is relaxed in two regards:
The usual requirements under s58(1)(b) for the practitioner certifying the medication to be someone other than the responsible clinician in charge of the patient’s treatment need not be complied with if the clinician considers this is ‘impractical or would involve undesirable delay’ (Sch 8 para 9(1)).
The usual requirement under s58(3)(b) for the certifying practitioner to consult two other professionals involved in the patient’s treatment need not be complied with where the practitioner considers that this is ‘impractical or would involve undesirable delay’ (Sch 8 para 9(2)). In these circumstances, it will be sufficient to consult with one other person.
There is no express mention in Sch 8 of ECHR rights. Nevertheless, because deprivation of liberty and bodily integrity are at stake in the context of mental health detention and the administration of medication, ECHR articles 5 and 8 will be highly relevant here. Further, the CvA does not in any way suspend or modify the Mental Health Act 1983: code of practice (DHSC, 15 January 2015).
Special educational needs
Finally, in relation to special educational needs, CvA s38 and Sch 17 empower the secretary of state (the education secretary) to make a notice disapplying or modifying a number of key provisions in the Children and Families Act 2014 for a specified period, not exceeding one month (although subject to renewal). At the time of writing (22 April 2020), no such notice had been made and so these provisions of the CvA were not in force.
The provisions that can be disapplied include:
the duty on schools and other institutions named in a child’s education, health and care plan (EHCP) to admit that child (s43); and
the duty on local authorities to review an EHCP (s44).
The provisions that can be modified include the duty on local authorities to secure special educational and health care provision for a child or young person with an EHCP (s42). The secretary of state (the education secretary), by notice, may modify this so that the duties under this section are ‘to be treated as discharged if the person has used reasonable endeavours to discharge the duty’ (CvA Sch 17 para 5(6)).
While no notice has been made by the secretary of state under the CvA, on 19 April 2020, the DfE issued Coronavirus (COVID-19): SEND risk assessment guidance. This guidance correctly states that the law in relation to EHCPs currently remains unchanged. However, it suggests that changes are likely to be forthcoming.
The guidance begins by underlining that, ultimately, it is for parents/carers or a young person to decide whether the child or young person should continue to go to school or college. Nevertheless, the guidance recommends (although does not direct) local authorities to carry out risk assessments in relation to children and young people with EHCPs, to determine whether they will be able to have their needs met at home and be safer there than attending an educational setting. The guidance sets out what factors should be considered when carrying out a risk assessment. If the risk assessment determines the child or young person will be safer at home, the guidance advises that they should stay at home. The local authority responsible for maintaining a child or young person’s EHCP will be responsible for commissioning any at-home provision.
The DfE has also published Help children with SEND continue their education during coronavirus (COVID-19) (19 April 2020). This points parents and carers to a range of resources to assist them in providing home education.
Conclusion
The parts of the CvA that are already in force have significantly altered legal duties that are fundamental to securing the rights of disabled people and those with mental health conditions. It is possible, indeed likely, that further changes will be brought into force. Nevertheless, it is important to recognise that a number of core legislative duties remain intact. In particular, the Equality Act 2010 and the Human Rights Act 1998 are untouched. These are likely to play a significant role in ensuring that vulnerable members of our society are protected and supported during this unprecedented period.

About the author(s)

Description: Steve Broach - author
Steve Broach is a barrister at 39 Essex Chambers in London.
Description: Alice Irving - author
Alice Irving is a junior barrister with a commitment to social justice and a particular interest in protecting and furthering the rights of disabled...