The provisions of the emergency legislation passed into law on 25 March 2020 and allow for suspension of all the mainstream duties in the Care Act, downgrading them all into powers – other than in the one situation, where meeting needs is necessary to avoid a breach of human rights.
Regulations were passed on 31st March bringing the suspension into force.
Confusingly perhaps, the DHSC issued Guidance under the new law, saying councils could each choose whether or not to adopt this easement but had to follow a process of very careful mapping and thinking beforehand.
That is confusing because the Act already suspended the duties as soon as the regulations were triggered; the Guidance is guidance only and said ‘should’ do this or that, but can’t change the fact that the duties do not have to be complied with.
Regardless of whether one’s own local council has made its decision as yet, and regardless of how long it might take the management team to follow the process and decide, the legal issue is thta nobody is really sure therefore whether councils are bound unless or until they do what the DHSC has asked them to, (which process, itself, they could mess up, in a public law sense) or whether they are not bound, but must try to exercise all functions under the Care Act lawfully and rationally in any event.
One thing is clear, councils are and were already able, without fear of legal redress, to start doing a bit less than their normal duties or doing them differently, if that is considered necessary, because there is an element of retrospectivity provided for, for easing transition to the new era, in para 16 of the relevant schedule in the Act (sched 12).
CASCAIDr wants to support councils to excel at this very difficult time. We know that social work staff did not sign up to do the minimum for vulnerable adults and will do their best to stretch scarce staffing resources.
So here’s some good news, we think.
All the Assessment, Eligibility and Review duties for service users and carers can be suspended, except for sections 27(2) and (3) – the REVISION section.
Those sections contain the mandatory duty to INVOLVE adults and carers before making a cut to any existing care or support plan.
We’re not sure that councils’ management teams would necessarily understand the implications of that non-suspension, and we’re already hearing that cuts (even if understandable in themselves) are simply being notified in the post or on the phone.
‘Notification’ is not ‘involvement’ and won’t be enough to comply with this unamended ongoing duty, we can confidently predict.
It’s there (and unamended) because of public law and the all-pervasive contribution of human rights law in the law of this country already. Involvement was always essential, and still will be.
Protection from legal liability for breach of statutory duty is only being provided (albeit both before as well as during formal periods of suspension) for aspects of the Care Act that HAVE been modified or suspended by this Act. Section 27(2) and s27(3) are not in that category.
For those who are considering how to operate, here’s a section by section analysis, for use in the days to come. Click here for that document.
If your job is in social work, please look out for our webinar/webinar recordings training offer, here, on how to operate the Act in a human rights and public law compliant way – for councils and Care trusts everywhere. Email email@example.com if you need to organise access to those webinar recordings urgently.
And please donate to CASCAIDr to keep our comments and analysis coming! CASCAIDr is keeping calm, and carrying on in a crisis. We are locking down into a different mode, in relation to individual cases, but have made a separate announcement about that on our site, here.