The social care sector is under the spotlight like never before. It has even beaten its noisier colleague, the NHS, to a brand new dedicated app designed to unite the 1.5 million strong adult social care workforce in England. Nevertheless, social work is not used to the attention it has been receiving during the coronavirus pandemic.
As the crisis developed, it was clear that the government had high expectations. Hospital beds would be needed for patients infected with the virus, and social workers were tasked with freeing up 15,000 hospital beds. The chancellor promised £1.6bn for councils to manage the impact of Covid-19 on their services, and Social Work England was given emergency powers which allowed them to include previously registered social workers on a temporary register.
Rapidly growing pressures
The Government also anticipated that local authorities and care providers would face “rapidly growing pressures” as more people needed their support. Informal support networks began to creak under the weight of the virus, and as social distancing measures kicked in. One of the range of measures to help the care system in these extraordinary circumstances are the temporary changes – known as ‘easements’ – to the Care Act 2014. These took effect on 31 March and mean that local authorities do not have to complete all the assessments or meet all the needs usually expected of them.
Easing measures sounds sensible: clearly, local authorities will need to manage workforce shortages and the extra pressures brought about by the public health crisis. But these decisions have consequences, a point which is at the forefront of practitioners’ minds. Interim chief social worker for adults, Mark Harvey recently told Community Care that “enacting the easements is a last resort and we’ve tried to make that clear”.
Government states that the Care Act should only be eased when workforce challenges mean that it is “no longer reasonably practicable” to meet care duties – perhaps when the virus has led to a significant increase in referrals, and then duties are simply beyond reach, to the point where life is at risk.
Local authorities must document and evidence their decision. Even with this caveat, clarity and transparency is proving to be an issue for one local authority: Derbyshire County Council has suggested that people with lower-level needs who are supported by family, friends or the community may experience changes in the length, time or frequency of home care services. Certain services may also be suspended, and care workers or providers may be subject to change. This represents stage 4, the final stage in the government’s decision making table, and to date Derbyshire and Solihull are the only local authorities to have said this might be a necessary step.
Derbyshire could now be facing a legal challenge over its use of the Care Act easements. Lawyers Rook Irwin Sweeney tweeted: “We've sent a letter before claim to Derbyshire CC regarding their decision to operate under the Coronavirus Act easements, which allow LAs not to meet their adult social care duties under the Care Act 2014 during the #coronavirusuk pandemic if specific conditions are met.
“It’s very unclear even from Derbyshire County Council's own website when the decision was taken and who will be affected by this decision – serious concern about lack of transparency.”
A legal challenge was also brought on the grounds that the new, much higher threshold for receiving care may constitute a breach of the individual’s human rights. In April, a neuropsychiatric inpatient, MB, brought a case against an NHS Trust when they applied to take possession of her hospital room to make it ready for Covid-19 patients. The Trust was successful in its argument it was appropriate to discharge MB, in spite of concerns around the effect it might have on her mental health. Arianna Kelly, a barrister at Kings Chambers, advises local authorities to bear this judgment in mind. She warns that Care Act easements “should not be exercised until a depletion of the workforce or a surge in demand for care is so great that local authorities are unable to comply with their Care Act duties”. In MB’s case, the Trust maintained that she would always have support available to her, which would prevent “serious suffering”. Nevertheless, Kelly cautions that “the existence of an effective provision of social care for people who are not afforded hospital care will be vital” to ensuring that their human rights are upheld.
Work goes on
Meanwhile, frontline staff are still dedicated to working with the people who need support in every community. Key workers are coping with an increased workload while they manage their own challenges in and among social distancing measures.
Work also continues at Social Work England as they launched their first corporate strategy and latest business plan this week. Chief executive, Colum Conway recognises the need to avoid “placing any unnecessary burdens on social workers … so that they can work flexibly to support those in society during this time of unprecedented need”.
Obviously the coronavirus outbreak is a disaster. But by attempting to mitigate some of its effects, the government has appears to have significantly increased the threshold for breaching the human rights of the most vulnerable. And at a time when many local authorities were only just coping. Additionally, local authorities have been presented with an implementation process which is well within reach. Surely, from both moral and legal standpoints, local authorities must resist the temptation to ease Care Act duties without due cause – and ensure their justification and accountability will stand up to scrutiny.
Currently, seven local authorities have decided to use the easements. An eighth, Middlesborough, did so for a week, and then reverted to business as usual. No one knows what the lasting effect of these changes will be. Front line social workers are used to protecting their clients and service users – and will no doubt work hard to ensure the decisions taken by local authorities are clear and transparent and most importantly, do as little harm as possible.