Care Act easements under the Coronavirus Act 2020 and potential issues for private providers

The Coronavirus Act 2020 was brought into force last month and is designed to enable the Government to respond to and manage the effects of the Covid19 pandemic.   Part of the Act allows easements of certain parts of the 2014 Care Act.  But how could this potentially affect private care providers?

The Coronavirus Act 2020 and associated guidance emphasises that easements should only be exercised by Local Authorities where this is essential to provide the highest level of services and that Authorities should comply with their existing Care Act duties for as long as possible.  A Local Authority can only enact Care Act easements when its workforce is significantly depleted, or demand on social care is increased to an extent that the Authority cannot meet its duties under the Care Act.

The four primary areas in which easements may be exercised by local authorities are:

  • Local authorities do not have to carry out detailed assessments of care and support needs – but they must for example respond to requests for care and support as soon as possible
  • Local authorities do not have to carry out financial assessments – but can retrospectively charge people for care and undertake a retrospective financial assessment, so long as information is provided in advance
  • Local authorities do not have to prepare or review care and support plans – but still must provide proportionate person centred care planning
  • The duty of a Local authority to meet eligible care and support needs are replaced with a power to meet needs, which will allow the local authority to prioritise the most pressing needs.

These easements are subject to various protections and safeguards.  For example Local Authorities still must comply with duties under the European Convention on Human Rights, and duties under the 2010 Equalities Act remain.

So how could this potentially affect private care providers?  In dealing with injury claims made by service users/their family on behalf of private care providers, we commonly see scenarios where a service user’s care needs change and an updated care plan is required.  A service user for example might require closer supervision due to an increased falls risk, or an elderly care home resident might require a new placement in a nursing home.  In the normal course of events, it can be a protracted process for the private provider to ensure that the service user’s care plan is updated and amended suitably by the Local Authority.  The private provider can be left providing care without the proper funding or staffing in place to meet increased needs of the service user, whilst the updated care plan is awaited.

Therefore if a local authority were to enact one of the Care Act easements allowed by the Coronvirus Act 2020, it is conceivable that for example a private provider may be left caring for a service user whose increased needs they may not be able to meet.  Add to that the potential staff shortages that a private provider might be facing due to staff being off sick or self isolating as well as shortages in PPE, and one can easily see claims for injury/neglect against private providers being made.

A copy of the government’s full guidance on Care Act easements can be found here:

https://www.gov.uk/government/publications/coronavirus-covid-19-changes-to-the-care-act-2014


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Written by Jennifer Johnston at BLM

jennifer.johnston@blmlaw.com

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