The Coronavirus Act 2020 means that disabled and vulnerable adults may be left with no entitlement or access to care, writes Jonathan Auburn.
The Coronavirus Bill is now passed and becomes the Coronavirus Act 2020. The main provisions affecting adult social care are found in Schedule 12. One headline point is that Schedule 12 relieves local authorities of the obligation to perform the following duties under the Care Act 2014 -
- s.9 assessments and s.10 carer’s assessments, and associated regulations;
- s.13 determination of eligibility;
- ss.58-65 relating to child carers;
- s.17 assessment of financial resources;
- s.18 duty to meet needs for care and support other than to the extent “necessary to meet those needs for the purpose of avoiding a breach of the adult’s Convention rights”.
The most significant impact is the last listed item: social care needs now only need to be met to the extent necessary to prevent a breach of Convention rights.
Significant concerns were raised about this aspect of the changes, when the Bill was before Parliament. Amendments were proposed by both Labour and the Liberal Democrats. None were taken up.
The threshold of only meeting needs to the extent necessary to prevent a breach of Convention rights is a very low one. Caselaw from the UK and Strasbourg sets a high bar before breaches of such rights are recognised in this context.
The risk now is that disabled and vulnerable adults may be left with no entitlement to or access to care, at a time when their need is very great, and their usual sources of familial or other support are not present.
The fact that personal contact is, at the time of writing, suspended by a lockdown, does not prevent consideration of forms of support by means other than direct physical, face to face contact.
It is not presently known how local authorities will choose to implement this new, temporary threshold. It is not known, for example, whether they will routinely be undertaking any form of assessment to evaluate whether a breach of Convention rights is likely in an individual’s case.
There are clearly many issues to be worked through in the coming days and weeks.