The pandemic threat to the Care Act

A tweet from Jamie Burton and Adam Wagner 20 3 20 

A rapid response to the Coronavirus Bill and the govt’s plans for adult social care during the crisis. It is serious stuff with potentially enormous implications in an already overstretched sector. They should be controversial.  

The Bill proposes to amend the Care Act 2014 by stripping it bare. Currently local authorities (LA) “must” assess any adult if it appears s/he “may” need “care and support.”  This is a low threshold and care and support can include any kind of help, bar healthcare, housing and subsistence (which are the responsibility of the NHS/homelessness services and DWP respectively).   

The Bill will remove the duty to assess. LAs simply won’t be obliged to determine if someone needs help. The consequences of this are profound. It is rarely obvious that someone has needs or what they are. That is the point of assessing them. But this is just the start.   

LAs only have a duty to meet “eligible” needs. This is a very high threshold. The adult must because of a mental/physical impairment/illness be “unable” to achieve at least 2 of 10 specified outcomes and there must be a “significant impact” on their wellbeing as a result. These are very serious needs – the outcomes include an inability to maintain a healthy diet, personal hygiene or a habitable home or stay safe in the home. They also include needs related to loneliness – inability to maintain relationships or access the community for example.  

The Care Act also requires LA to support carers (e.g. family & friends) who provide care to people with needs. This is a critical component of the care system and without it the number of people who would need care directly from the LA would increase massively. Significantly, LAs can and do charge for meeting these needs (although they cannot make a profit). A lot of private companies depend on LA arranged care. This is not a free service by any means.  

Nevertheless, the Bill will terminate the duty. For everyone. Whether or not the duty pre-existed, the coming into force of the Bill and whether or not the person is making a financial contribution. And it is not clear for how long proponents of the Bill will doubtless highlight the replacement obligation on LAs to provide care if “it considers that it is necessary” for the purposes of avoiding a breach of European Convention of Human Rights. But this offers almost nothing because there is no human right to social care or positive obligation under the ECHR to meet care needs. At the highest, Article 3 requires that essential needs for food and shelter are met, but those forms of support fall outside the meaning of care and support anyway.  

(It is possible to argue about the precise parameters of the right not be subjected to inhuman or degrading treatment but, on any view, it falls a very long way short of what has come to be understood as being necessary for a dignified and meaningful life.)   

This is of course a serious health crisis. But it is hard to think that these changes won’t make it worse. Critically, the link between current failures to meet care needs and pressure on the NHS is well established. Now does not seem like a good time to test that evidence.  

And even when the crisis is over it seems care needs still won’t be met. Not only does the Bill include a ‘backlog’ clause (accepting that it will take time to catch up with needs not assessed during the crisis), the damage to the care sector could be irreversible. 

These proposals have the potential to affect all of us in profound ways and for some time to come. I have barely touched the surface in this thread. The fear is that in the shadow of the crisis they will not get the scrutiny they deserve.

 

11:20, 21 Mar 2020 by Brian Fisher
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