Care Act statutory duties may have been “permanently undermined”, report on use of pandemic easements claims

A report on the impact of the “easements” permitted under the Coronavirus Act 2020 has suggested that Care Act statutory duties may have been “permanently undermined” by widespread breaches by councils during the pandemic.

The report, published by the National Institute for Health and Care Research, found that across both authorities that invoked easements and those that did not, carers and the family members they were supporting experienced “significant changes from their usual support”, resulting in “unmet need” during the pandemic.

The Care Act easements were created under the Coronavirus Act 2020 in March 2020, in order to help the care system to manage the pressures it faced.

Schedule 12 of the Act included an unprecedented power for local authorities in England temporarily to “water down” the majority of their adult social care duties under the Care Act 2014, the report noted.

Government guidance for local authorities on the easements said:

“Local authorities should do everything they can to continue meeting their existing duties prior to the Coronavirus Act provisions coming into force. In the event that they are unable to do so, it is essential that they are able to streamline present assessment arrangements and prioritise care so that the most urgent and acute needs are met.

“The powers in the Act enable them to prioritise more effectively where necessary than would be possible under the Care Act 2014 prior to its amendment.”

The easements came in four stages. Stages 1 and 2 highlighted existing legal flexibility. Stage 3 permitted local authorities to cease Care Act assessments, applications of eligibility and reviews. Stage 4 permitted whole system prioritisation of need to avoid human rights violations.

The report noted that triggering stages 3 and/or 4 protected local authorities in England from legal action for failure to comply with their statutory duties if they were unable to do so because of “crisis circumstances”.

However, only eight out of 151 local authorities with adult social care responsibilities triggered stage 3 or 4 easements between April and June 2020. These were Birmingham, Coventry, Derbyshire, Middlesborough, Solihull, Staffordshire, Sunderland, and Warwickshire.

The report noted that these easements however were “short lived”, one lasting just over a week and the longest, three months.

Looking at the differences in approach between easement and non-easement authorities, the study concluded that rather than this being based on the challenges they faced, it was influenced by the legal advice that they received “as to whether the actions they were taking were likely to put them in breach of statutory duty, or whether they were legally protected”.

The report said the research had revealed "a complex picture of local authorities acting under extreme pressures with greatly stretched resources in crisis circumstances, and of carers struggling without access to many pre-existing support routes while those they cared for were rapidly deteriorating mentally, physically and socially. The impact on carer health and wellbeing has been profound."

The research found that across both local authorities in the study that invoked easements and those that did not, evidence from carers and local authority social work leads revealed that carers and the family members they were supporting experienced significant changes from their usual care and support, which in many cases resulted in lower wellbeing and unmet need. "The survey results suggest a population in acute distress and suffering from very poor mental health."

The report suggested that given the evidence of reductions in support, and the apparent extent of unmet need among carers in the study, “on the face of it there appears to have been a high risk of instances where statutory duties under the Care Act towards carers were not met – including for assessment, provision, communication, and reviews. If this is the case for any individual in any given local authority, Care Act easements were likely to have been required at that time”.

The report noted that that although the experiences were similar across the local authority areas in this study, easements were differentially implemented, soon revoked, and not in force for any local authority beyond July 2020. It suggested that there appeared to have been “little consequence – whether political, legal, or regulatory – for those local authorities that did not invoke easements”. However, for those that did, there was considerable pressure from lawyers, NGOs, lobby groups and adverse media attention.

The report said: “The pandemic conditions therefore appear to have set a precedent whereby diminished provision under the Care Act has been provided to caregivers and the people they support, below the levels previously thought to be the minimum acceptable, without litigation or regulatory intervention or consequence.

“This was due to stretched resources and the complex conditions that prevailed, but if it is correct that this could have been done lawfully without Care Act easements, there is a danger that Care Act statutory duties may have been permanently undermined.”

This is because local authority resources for social care, especially staffing levels, are reported as increasingly critical, “and some suggest they are in a worse position now than in the first year of the pandemic”.

The report said: “If the pandemic conditions justified unmet social care need without needing to ease Care Act duties, it is unclear what state those duties are in now. Not recognising the strength of statutory duty in pandemic conditions runs the risk of their de facto dilution to mere powers in the circumstances now prevailing in many areas. There are critical stresses in carer support and provision.

“Carers seem unprotected with few options. They are dealing with an unclear legal situation and widespread stress and burden.”

The report argued that even though the option to seek easements expired in July 2021, understanding what happened during and beyond this unique period and what the consequences had been for local authorities remains “crucially important”.

This was for several reasons:

• the option to invoke Care Act easements has revealed ambiguities in legal thinking about what the statutory duties and Guidance mean in practice and, in crisis circumstances, what it takes to fulfil these duties, and when a breach might occur;
• there are stark differences between the treatment of rationing of healthcare, on the one hand, and social care, on the other, during the pandemic, which raises questions for future emergency scenarios;
• the research uncovers a picture of family carers behind closed doors, already struggling prior to the pandemic with insufficient support at home, stretched to or beyond breaking point;
• the emergency systems implemented to support both local authorities and carers were fraught with difficulties, suggesting that renewed thinking is needed for future Covid waves or pandemics;
• the difficulties during the pandemic were overlayed on a home care system already under extreme pressure, with multiple challenges in providing adequate support to this vital group of carers;
• many older carers have suffered greatly in the pandemic revealing a class of people given little priority and inadequate support.

A copy of the report, The Impact of Care Act Easements under the Coronavirus Act 2020 on older carers supporting family members living with dementia at home, can be downloaded here.

Lottie Winson