The Coronavirus Act 2020 has brought in changes to parts of the Care Act 2014, and to the 2012 Regulations that govern Continuing Healthcare assessments.

This note provides a brief overview as to how the law has changed relating to health and social care, including care provided by the NHS through NHS funded Continuing Healthcare.

What has changed?

The main changes to the Care Act 2014 remove some of the obligations on local authorities in terms of assessments and meeting the care and support needs of individuals and carers arising from those assessments. These changes were brought into force on 31 March 2020 by the Government, in the form of Care Act “easements”.

In particular;

• Local authorities no longer have a duty to carry out assessments, either for an individual or for a carer;
• Local authorities no longer have to provide detailed Care and Support Plans, once someone’s needs have been assessed;
• Local authorities no longer have a duty to meet the needs of someone who has been assessed as having needs eligible for care and support;
• There is no longer the duty for local authorities to give effect to a person’s preferred choice of accommodation.

It also worth noting that these changes do not have immediate effect. A local authority will need to have made a decision to implement the new provisions at a local level. Such a decision will be made by the Director of Adult Social Care and the local authority will be expected to have liaised with its local NHS bodies, when coming to that decision.

Local authorities still have the power to undertake assessments, produce care and support plans and meet eligible needs. However, if a local authority has made the decision to implement the Care Act easements, it is no longer under a duty to provide these things.  There will be no statutory basis to enforce that these provisions are carried out by the local authority.

It is important to note however that a local authority is still under a duty to meet the needs of an individual or of a carer, where failing to do so would mean that person’s human rights would be breached. These might include the right to life under Article 2 of the European Convention on Human Rights, the right to freedom from inhuman and degrading treatment under Article 3 and the right to private and family life under Article 8.

The Government has made clear in its guidance to local authorities that it expects them to continue to comply with the Care Act provisions as they were in force before the Coronavirus Act wherever, and for as long as, possible. The guidance provides that a local authority may consider operating under the new provisions, where it is no longer reasonably practicable for a local authority to continue to comply with the Care Act provisions in full, or where continuing to try and do this is likely to result in urgent or acute needs not being met, potentially risking life.

The changes to the 2012 Regulations remove the obligations on the NHS to undertake NHS funded Continuing Healthcare assessments during the period that the Coronavirus Act 2020 is in force.

Why are these provisions being introduced?

The Government has said that it expects that there will be increased pressure and demand on the social care sector because of the Covid-19 pandemic. The changes to the law are intended to try and ease some of that pressure on local authorities and the NHS, where this becomes necessary, by seeking to ensure that the most urgent and acute needs continue to be met and are met first

When will these provisions be in force and for how long?

The changes to the 2012 Regulations came into effect when the Coronavirus Act 2020 came into force on 25 March 2020.

The changes to the Care Act 2014 were brought into effect on 31 March 2020, through additional Regulations.

The Coronavirus Act 2020 is in force for two years from 25 March 2020, although the government has the power to suspend parts of the Act during that time, or to change the expiry date of the Act.

Can I still be charged for care provided during this period?

The provisions in the Coronavirus Act 2020 also remove the obligation on local authorities to carry out financial assessments immediately, while the Act is in force.

They can however carry out financial assessments later on, and may be able to charge retrospectively. They must have given reasonable information about this in advance.

Therefore you should not assume that because you are not being charged for any care arranged by the local authority now that this means you will not be charged for it in the future.

Article by the Court of Protection team.

The National Health Service Commissioning Board and Clinical Commissioning Groups Responsibilities and Standing Rules) Regulations 2012

Care Act easements: guidance for local authorities

The Coronavirus Act 2020 (Commencement No. 2) Regulations 2020