The Coronavirus Bill 2020 has been published and is likely to be the subject of Parliamentary consideration during this week. Amendments are being considered by the opposition parties, and so it may not be enacted in its current form. Nonetheless, it is likely to make significant changes to the operation of the Care Act 2014 duties to adults with care and support needs and their carers.
This note outlines the key changes in relation to England and Wales: updates will be provided as the Bill continues its legislative journey.
Section 14 and Schedule 11 address local authority duties
Note that the proposed legislation has different effect in relation to England and Wales (Part 1 applies to England and Part 2 applies to Wales).
The key proposed change for English local authorities in relation to assessment duties is that, by para. 2 a local authority does not have to comply with the assessment duties under:
In terms of the duty to meet eligible needs, para.4 of Schedule 11 provides for Section 18 (1) of CA 2014 (duty to meet needs for care and support) to be replaced with the following:
“(1) A local authority must meet an adult’s needs for care and support if—
(a) the adult is ordinarily resident in the authority’s area or is present in its area but of no settled residence,
(b) the authority considers that it is necessary to meet those needs for the purpose of avoiding a breach of the adult’s Convention rights, and
(c) there is no charge under section 14 for meeting the needs or, in so far as there is, condition 1, 2 or 3 is met.
In this subsection “Convention rights” has the same meaning as in the Human Rights Act 1998.”
In summary, the proposal replaces the duty to meet to meet eligible needs with a duty to meet needs only where failure to do so would result in a breach of the adult’s human rights. The human rights most likely in play are article 3 (prohibition on torture and inhuman and degrading treatment), article 8 (right to respect for home, family and private life) and article 5 (re deprivation of liberty).
The practical difficulty for local authorities is likely to be whether and how, in the absence of an assessment, it is possible to be satisfied as to whether lack of support would result in an ECHR breach: it is implicit that there must be some form of assessment to address whether an ECHR breach would result from lack of care and support. This is likely to be a different form of assessment to the care and support needs assessment, and requires particular focus on article 3, 8 and 5 ECHR and associated case-law.
The main legislation in relation to Wales is the Social Services and Well Being (Wales) Act 2014.
Part 2 of Schedule 11, paragraph 20, removes the duty to assess the needs of adult for care and support.
Para 21 removes the duty to assess the needs of an adult carer.
Para 22 removes duty to make determination of eligibility for an adult: note that the duty is maintained in relation to children.
Para 25 removes the duty to carry out a financial assessment.
By para.3, the duty to produce care and support plans for adults, or support plans for adult carers, is removed.
Para 26 concerns the central provision for providing care and support and operates to amend section 35 of the SSWB (W) Act 2014 by providing that the s.35 duty to meet care and support needs of an adult has effect as if subsection (3)(a) were omitted. Section 35(3)(a) provides that a local authority is under a duty to meet an adult’s needs for care and support that meet the eligibility criteria.
Importantly, s.35(3)(b) remains in force unamended. This provision requires a local authority to meet an adult’s needs for care and support if the local authority considers it necessary to meet the needs in order to protect the adult from abuse or neglect or a risk of abuse or neglect.
There is no equivalent of the duty to meet needs in order to prevent a breach of an adult’s human rights, however such an obligation is imposed by the Human Rights Act 1998 in any event.