Guidance

Care Act easements: supporting guidance

Updated 29 June 2021

This guidance was withdrawn on 22 July 2021

The Care Act easements provision in the Coronavirus Act 2020 expired on 16 July 2021 and is no longer in force.

Applies to England

Regulations to expire the Care Act easements were laid on 21 April 2021 using the draft affirmative procedure. These regulations will come into force when approved in Parliament.

This guidance will be withdrawn when the regulations come into force.

Applies to: England

1. Introduction

This supporting guidance is aimed at local authorities in England and should be read in conjunction with the Care Act easements: guidance for local authorities.

2. Purpose of the easements

The Care Act easements were introduced by the Coronavirus Act 2020 so that local authorities could streamline assessment arrangements and prioritise care so that the most urgent and acute needs are met.

When to use easements

A local authority may choose to operate under easements when the pressures caused by a COVID-19 related increased demand for care and support and/or a reduced workforce availability due to illness and self-isolation are such that the local authority can no longer meet their existing Care Act 2014 duties. However, in doing so, the Director of Adult Social Services and the Principal Social Worker have a clear process to follow to ensure open and appropriate decision making. This includes the need to discuss with the accountable local elected member and local NHS leadership. They should also engage with providers and individuals with care and support needs.

What to do when a service is unavailable

If a service is not delivered to a person, for instance because the care worker is unwell or the services are not open due to social distancing guidelines, a local authority’s duties to that person’s needs remain under the pre-amendment Care Act if they are not operating under easements. Therefore, if someone’s eligible needs cannot be met by their usual service provider, the local authority must endeavour to arrange alternative support to ensure that the individual’s needs are being met.

PPE shortages and easements

A local authority may only choose to operate under easements if they have reduced workforce availability due to COVID-19 related illness and self-isolation. Local authorities cannot operate under the easements due to limited availability of PPE. If the local authority is running out, we encourage them to contact their business as usual (BAU) supplier where possible. If local authorities are unable to obtain PPE through their BAU supplier, they can contact their Local Resilience Forum (LRF) to request emergency PPE. The government has delivered millions of items of PPE to LRFs to help them respond to urgent local spikes in need across the adult social care system and other frontline services. If local authorities are unable to obtain PPE through their BAU supplier or LRF, and can show an immediate urgent need for PPE, they can call the National Supply Disruption Response (NSDR) system. The NSDR does not have access to the full lines of stock held at other large wholesalers or distributers but can mobilise small priority orders of critical PPE to fulfil an emergency need.

3. What the powers actually change

The provisions introduced by the Coronavirus Act amend some parts of the Care Act 2014 to ease certain local authority duties to allow them to cope with COVID-19 related increased demand for social care and / or reduced workforce.

Changes to Care Act 2014 duties

The provisions introduced by the Coronavirus Act 2020 only affect certain parts of the Care Act 2014, particularly those outlined in the guidance concerning streamlining assessments, care and support planning and prioritising care and support. Many local authority duties under the Care Act 2014 remain in force, including the duty to provide independent advocacy (s.67 and 68), the duty to promote an individual’s wellbeing (s.1), the duty to consult an individual before revising their care and support plan (s.27), safeguarding (s.42) and market shaping (s.5). Continuing to uphold these duties will be integral to support the recovery of the sector. Detailed information on these duties can be found in the Care and support statutory guidance.

Further Care Act duties eased by the Coronavirus Act

The guidance does not discuss paragraphs 12 and 13 of schedule 12 of the Coronavirus Act. Under paragraph 12 and 13, a local authority does not have to comply with duties of notification and assessment when a person moves into a different local authority area.

Why market shaping is important

Local authorities have a duty to develop and support responsive and sustainable markets. This duty is not changed by the Coronavirus Act. Local authorities need to stimulate a wide range of care and support services to ensure people and their carers have a choice over how their needs are met, to have contingency plans for provider failure and to step in if any provider fails. COVID-19 has driven up costs of adult social care through PPE, staffing, transport and IT to support remote working. By fulfilling their market shaping duties, local authorities can ensure that care providers are not placed in a position where their operation is threatened by financial pressures. This will be crucial to support the recovery period in the sector and further advice on market shaping is available in the Adult social care market shaping guidance.

4. Protections and safeguards

The overriding purpose of these easements is to ensure the best possible provision of care to people in these exceptional circumstances. For this reason, not all local authority duties under the Care Act are eased and the duty to meet eligible needs remains if not meeting these needs would be a breach of an individual’s human rights.

The European Convention on Human Rights (ECHR) baseline

If not meeting an individual’s care and support needs would result in a breach of the individual’s human rights, local authorities have a duty to meet these needs even if they are operating under easements. As outlined in the guidance, the human rights under ECHR include: Article 2, the right to life; Article 3, the right to freedom from inhuman and degrading treatment; and, Article 8, the right to respect for private and family life, home and correspondence. Failing to meet an individual’s needs may result in a breach of their human rights if, for example, they need assistance with preparing and eating food, or communicating with friends and family. There are other situations which may also result in a breach of human rights and local authorities must take account of the professional judgement and analysis of social workers, occupational therapists and other professionals to determine this. Further information on the ECHR is available.

Complaints about the care and support received during this period

Complaints and escalation procedures remain the same as under the Care Act. In the first instance, these complaints should be raised with the local authority themselves. If the complaint cannot be resolved it can be escalated to the Local Government and Social Care Ombudsman, which has resumed normal service following a change in operation during the peak of the pandemic. Any feedback on social care can be shared through the Care Quality Commission’s (CQC) feedback campaign, although it is important to note that CQC cannot take up complaints on behalf of an individual. Under the Coronavirus Act, once the emergency period has ended, if local authorities do not comply with their duty to carry out a relevant assessment within a reasonable period, action can be taken in court.

5. Principles to govern use of the powers

The Care Act embodies a principled, person-centred and values-based approach to all aspects of the provision of social care. It is essential that these principles and values, including co-production and personalisation, are maintained during this period.

Principles and values of the Care Act 2014

The general principle of the Care Act is to promote wellbeing. In addition, there are a number of other key principles and standards which local authorities must have regard to when carrying out their activities or functions. These are:

• the importance of beginning with the assumption that the individual is best-placed to judge the individual’s wellbeing
• the individual’s views, wishes, feelings and beliefs
• the importance of preventing or delaying the development of needs for care and support and the importance of reducing needs that already exist
• the need to ensure that decisions are made having regard to all the individual’s circumstances
• the importance of the individual participating as fully as possible
• the importance of achieving a balance between the individual’s wellbeing and that of any friends or relatives who are involved in caring for the individual
• the need to protect people from abuse and neglect

Further detail on these principles and values can be found in the Care and support statutory guidance.

6. Steps local authorities should take before exercising the Care Act easements

A local authority should only take a decision to begin exercising the Care Act easements when the workforce is significantly depleted or demand on social care increased through COVID-19 to an extent that it cannot comply with its Care Act duties in full. The decision should be made locally by the Director of Adult Social Services in conjunction with or on the recommendation of the Principal Social Worker.

Who to consult before deciding to operate under easements

Any lead member with the health and social care portfolio or senior leadership of the local authority should be involved and briefed as part of this decision-making process, although leadership structure will vary locally. The Health and Wellbeing Board should be kept informed and the decision should be informed by discussion with the Local NHS CCG leadership. The local authority should also discuss with providers, people in their area with care and support needs and organisations representing these individuals. The local authority should keep a record of all discussions that have helped inform their decision.

Who to communicate the decision to operate under easements with and how

The Care Act easements guidance states that local authorities should notify the Department of Health and Social Care using the Care Act Easements Notification Form and communicate the decision to all providers, service users, carers and local MPs. This decision should also be communicated internally. Local authorities should ensure this is communicated accessibly and should personally contact individuals affected by the easements, care providers operating in the area, and local MPs. In addition, this decision could be published on the local authority’s website and communicated to national organisations representing individuals with care and support needs.

7. Interaction with other changes

Local authorities should be aware of other changes in social care which may interact with the Care Act easements, such as the COVID-19 Hospital Discharge Service Requirements and arrangements and continuing healthcare.

Hospital Discharge Guidance and the Care Act easements

Under the discharge requirements, hospitals must follow the discharge to assess model to discharge patients as soon as they are clinically safe to do so. The Government agreed that the NHS would fully fund the cost of new or extended out of hospital health and social care support packages begun between 19 March and 31 August for the extent of the emergency period. This applied for people being discharged from hospital or who would otherwise be admitted into it, for a limited time, to enable quick and safe discharge and more generally reduce pressure on acute services.

This meant that somebody who is moved into a social care setting through this process from 19 March and 31 August 2020 cannot be charged retrospectively for care received under these arrangements. They may be charged for ongoing care they receive after relevant assessments, including a financial assessment as part of the Care Act.

On 21 August 2020 updated guidance was published. From 1 September 2020, the NHS will fund up to six weeks of follow on additional care and support following discharge from hospital. A comprehensive care and health assessment for any ongoing care needs, including determining funding eligibility, should take place during the first six weeks. The Government is making additional funding available to support the health and social care systems to implement this approach during the financial year 2020/21. This means the discharge support fund will cover additional costs of post-discharge care and support for up to a maximum period of 6 weeks.

If for some reason a decision on the future provision of care and support is not reached within the 6 week period, costs from week 7 cannot be charged to the discharge support fund and must be met from existing budgets. As set out in the guidance, CCGs and local authorities should agree an approach to funding of care from the seventh week. In the absence of an existing locally agreed approach for funding from week seven onwards, the CCG remains responsible for costs until the NHS CHC or FNC assessment is completed. After this, where the individual is assessed as not eligible for NHS CHC or FNC, responsibility should sit with the local authority in line with existing procedures until the Care Act assessments are completed, after which normal funding routes will apply.

Under the Care Act easements, an individual may have their care and support needs met without a financial assessment of their means. Local authorities can then conduct assessments at a later date and retrospectively charge for meeting needs subject to those assessments, provided that the local authority informs the individual, or their family member / unpaid carer, at the time the service is carried out or before, that there may be a retrospective charge subject to a delayed assessment.

Care Act easements and continuing healthcare (CHC)

Provisions in the Coronavirus Act 2020 allowed NHS bodies to postpone NHS CHC assessments until the end of the emergency period. From 1 September 2020, the Government requests that local health and social care systems reintroduce the NHS CHC processes. CCGs and Local Authorities will have to manage two streams of work:

• NHS CHC work deferred between 19 March and 31 August 2020
• routine NHS CHC referrals, starting from 1 September 2020

NHS CHC assessments for work deferred between 19 March and 31 August 2020 should consider whether the needs met during the CHC easements period were mainly health needs, although circumstances may have changed by the time of the assessment and a range of evidence may need to be used. If the individual is found to be eligible for CHC funding, the relevant CCG should fund their care according to the following principles as outlined in the guidance:

• where an NHS CHC Checklist has been used, the costs of the services from day 29 of the CCG receiving the NHS CHC Checklist should be reimbursed (see the National Framework - Annex E, paragraph 9)
• where an NHS CHC Checklist has been used and the individual’s needs have changed by the time the full assessment is completed (due to the time passed), then the CCG will need to reimburse back to the point in time from which the individual was determined to have a Primary Health Need
• if, during the period above only, no NHS CHC Checklist was used then the CCG will need to reimburse back to the point in time from which the individual was determined to have a Primary Health Need

Assessments should be done as soon as possible after the emergency period. Any costs should be reimbursed in a timely manner according to the above principles as outlined in the guidance.

8. Oversight

The Department of Health and Social Care will keep adherence to this guidance under regular review to ensure compliance with the Coronavirus Act. Secretary of State has the power to direct local authorities to comply with the guidance and the Ethical Framework.

Use of notification information

DHSC keeps records of this information internally and shares it with CQC, the Association of Directors of Adult Social Services (ADASS) and the Local Government Association (LGA) to ensure that there is transparency concerning the use of easements. A list of local authorities operating under easements is available.

Oversight of the impact of easements on individuals with care and support needs

Work has been undertaken by TLAP, ADASS, CQC and partners to understand the impacts of the Care Act easements on individuals. Chief Social Workers have had conversations with Principal Social Workers to provide assurance that the guidance has been applied as intended, and to offer support if needed. TLAP and ADASS have had discussions with the local authorities who have operated under easements to consider the reasons for this and the impact on adults with care and support needs.

A TLAP Insight Group meets regularly to coordinate intelligence of TLAP partners on the impact and experience of people with care and support needs and unpaid carers during the COVID-19 crisis, including in areas operating under easements. A full report of their findings was published on 13 October 2020: ‘A telling experience – understanding the impact of COVID-19 on people who access care and support’. There is insufficient evidence to conclude that the easements have impacted on care and support. In order to build a person centred approach to monitoring care quality going forward, CQC have mapped Making It Real statements onto their 5 Key Questions. This will help CQC make use of the information that comes from the activities of the TLAP Insight Group in their Independent Voice publication activity.

Oversight of the impact of easements on providers

CQC are working with providers to understand the impact of Care Act easements on them, to complement their Emergency Support Framework activities. This information will not be published.

Annex A: local decision-making relating to the easements

Local authorities may need to make difficult decisions concerning care and support in this period and should have clear professional oversight of this. Decisions on whether to operate under easements and on how this will affect individual care and support packages will require professional judgement.

Restarting a voluntarily suspended care package

Some individuals may choose to suspend or cancel their care package due to worries about coronavirus and wish to reinstate this at a later date. The process for reinstating a care package should be determined locally and it is suggested that local authorities agree a simple process for this which should be discussed when the care package is suspended or cancelled, or communicated to individuals who have already suspended or cancelled their care package in a timely manner. If an individual needs to restart their care package, local authorities must ensure that a care package is put in place to meet the individual’s eligible needs, in line with their duty under the Care Act to meet eligible needs. If the local authority is operating under easements and prioritising care and support, the individual’s package should be prioritised in line with the local authority’s prioritisation procedure.

Further information on the stages of easements

Stage 1 and 2 as outlined in the easements guidance mean the local authority is operating under the pre-amendment Care Act (i.e. not operating under easements) and does not need to notify the Department of Health and Social Care. The local authority must ensure that a care and support package is put in place to meet an individual’s eligible needs. At stages 3 and 4, the local authority is operating under easements and should notify the Department of Health and Social Care.

They should continue to do everything possible to meet the most urgent and acute needs. There is nuance within the easements and local authorities operating under easements will determine which aspects they need to use to be able to meet the most urgent care and support needs. For instance, one local authority might operate under easements because the closure of day centres has put pressure on other services while another local authority might operate under easements because a major home care provider in their area has a high number of staff who are affected by COVID-19. Easements will not look the same for 2 local authorities:

• stage 1 refers to business as usual
• stage 2 reflects the way local authorities can be more flexible in certain scenarios. For example, current flexibilities in the Care Act ensure that if there is provider failure the local authority makes sure people who need care most or are prioritised. These do not allow a fundamental change to the care and support plans over a period of time, but offer a small degree of flexibility in exceptional circumstances. It also means local authorities can delay reviews and assessments where it is safe to do so in order to respond to more urgent needs and situations
• under stage 3 easements are enacted and the local authority is able to streamline assessment processes to respond to increased demand and / or reduced workforce related to COVID-19 in the most appropriate way
• under stage 4, the local authority can prioritise care and support being delivered. This is a separate decision that needs to be considered by the local authority. These decisions can be sequential or taken at the same time. Local Authorities only need to advise the Department of Health and Social Care when they enact the easements as set out in stage 3 or 4, and when they stop using these easements

Annex B: guidance on streamlining assessments and reviews

Under the Care Act easements, local authorities can postpone or streamline assessments and are relieved of the duty to revise care and support plans. This allows local authorities to focus resources to ensure the most urgent and acute care and support needs are met.

Including unpaid carers in the care and support planning process

Under the Care Act 2014, unpaid carers have parity of esteem with the people they support and this is not changed by the Coronavirus Act. This means that local authorities should consult unpaid carers about the individuals in receipt of care and support and consider their capacity and wishes to provide support as part of the planning process. If the unpaid carer also has eligible needs, these should be considered and supported. They should also have had a carer’s assessment previously which may need to be reviewed. If the local authority is not operating under easements, they have a duty to meet the eligible care and support needs of both the individual and their carer. If they are operating under easements, this duty is replaced with a power.

Revising care and support plans while operating under easements

If a local authority decides to revise an individual’s care and support plan during this period, they must continue to involve people who use services and their carers in decisions about their care and support in accordance with the Care Act. Local authorities and the individual at the centre are best placed to determine what this involvement should look and feel like to individuals, since it will vary on a case by case basis. It is important to consider the accessibility of communication and Making It Real may be useful as a tool for positive discussion.

Changing a care package

Local authorities and providers should work together to agree the circumstances in which, and by how much, current care packages and direct payments can be varied without the need for a formal Care Act review. This should offer providers and people who manage their own care a degree of flexibility within their existing care packages to respond to changing circumstances. There should be a record of this decision with the rationale behind it. Variation within certain parameters set in advance is not the same as reviewing a care package, in which case individuals must be involved. Significant variation in a care package or direct payments require a formal Care Act review.

Streamlined assessments under stage 3 of the easements

Streamlined assessments will vary between local authorities, as full Care Act assessments do. It is expected that under these circumstances the assessments will be sufficient to ensure that individuals receive appropriate care and support while reducing the administrative burden on local authorities. This may mean that the assessment process itself is largely unchanged for the individual but that the paperwork is reduced while a local authority is operating under easements. It might make better use of information held by other parties (trusted assessments) and the person’s own view (self assessment). Any assessment, whether performed under the pre-amendment Care Act or the provisions in the Coronavirus Act, must also consider current social distancing guidelines and may need to make use of technology, while considering an individual’s specific needs.

Completing delayed assessments after the easement period

Local authorities should determine the way in which they complete the assessments and ensure that all assessments which were streamlined or delayed during the easement period are completed as per the pre-amendment Care Act over an appropriate and reasonable timeframe, taking into account the urgency of the needs or situation and consideration of any fluctuating needs. This does not necessarily mean that a full face to face assessment should take place if, with the agreement of the person, the local authority can make use of existing Care Act flexibilities to satisfy themselves that they have all the necessary information.

Annex C: prioritisation process

Under the easements, the local authority duty to meet eligible needs is replaced with a power to meet eligible needs, underwritten by a duty where a failure to meet these needs would result in a breach of an individual’s human rights. If necessary, this enables local authorities to prioritise care and support to meet the most urgent and acute needs.

Mapping care packages

As the guidance mentions, local authorities are well practised in prioritisation and most will have mapped existing packages for complexity and need. Mapping processes are determined by local authorities who are best placed to make decisions about their communities. This ensures that local authorities are aware of those most at risk from not receiving care and support and this must be kept under constant review.

Alternative support for individuals affected by easements

An individual’s care and support package should not be reduced without their involvement. Local authorities should provide individuals with a list of voluntary organisations who can help during this time. There is a range of other support available, including NHS volunteer responders. NHS Volunteer Responders can be asked to help individuals with tasks such as delivering medicines from pharmacies, driving patients to appointments, bringing them home from hospital and regular phone calls. Individuals can call them directly on 0808 196 3382. Local authorities may wish to establish a system of welfare checks for low risk individuals who have had their care and support reduced during the easements period, including individuals who may be continuing to shield voluntarily.

Annex D: safeguarding guidance

Adult safeguarding is working with adults with care and support needs to support them to keep safe from abuse or neglect. The safeguarding duties under s.42-46 of the Care Act relating to safeguarding adults experiencing, or at risk of, abuse or neglect are not changed by the easements and local authorities must continue to comply with this.

COVID-19 and safeguarding

The immediate safety of an adult at risk, and their carer, must always be prioritised. Where decisions are taken to prioritise safeguarding concerns, the Principal Social Worker / Safeguarding Lead should advise on any changes to how responses to safeguarding concerns will be managed. Any changes to usual safeguarding arrangements should be agreed by the Director of Adult Social Services.

Other

Some topics have not been covered in the guidance. Information on these topics can be found below.

Easements and young carers

The needs of young carers are assessed under the Children and Families Act 2014. This is not changed by the Coronavirus Act 2020. Local authorities should continue to support the needs of young carers.

Easements and young people transitioning to adult social care

Although the local authority duty to undertake assessments of children transitioning to adult social services is eased, the duty under the Care Act to support children transitioning to adult social services is not eased. Local authorities and NHS organisations should give particular thought to the continuity of support for young people with special educational needs and disabilities (SEND) and an education, health, and care plan (EHC) that are transitioning to adult social care.

Easements and self-funders

If an individual funds their own care and arranges it privately without involving the local authority, providers may set their own fee rate and payment schedule. Since this care is not provided under the Care Act, the package cannot be modified or de-prioritised under the easements. If an individual wholly or partly funds their own care and it is arranged through the local authority during the easements period, discussions must be had locally with providers concerning the fee rate. It may be that all care is purchased at the local authority rate and then charged retrospectively at the self-funder rate, with the difference going to providers. This is an unprecedented time and local discretion is necessary. Any care which has local authority involvement can be deprioritised in a local authority operating under the Care Act easements, including that of self-funders.

Easements and individuals who receive direct payments

Under the easements, assessments and reviews of or which may result in a direct payment to meet eligible needs could be streamlined and care and support prioritised. No changes were made to the operation of existing direct payments by the Coronavirus Act and councils are directed to operate with minimum restraints on flexibility and innovation in how needs can be met using direct payments. Guidance on direct payments says that the use of direct payments to meet people’s care and support needs should remain a priority for local authorities.

Easements and rough sleepers

Local authorities are expected to ensure that the most acute care and support needs are met and should use their judgement in line with the ethical framework in applying easements. They must meet needs where not meeting them would result in a breach of human rights. This is particularly important when individuals are being moved out of temporary accommodation.

Easements and offenders discharged from prison

Local authorities are expected to ensure that the most acute care and support needs are met and should use their judgement in line with the ethical framework in applying easements. They must meet needs where not meeting them would result in a breach of human rights.

Easements and local authority employees

Local authorities should ensure their employees are kept informed about easements using appropriate communication channels. Leader should promote staff wellbeing at this difficult time while workloads are likely to be increased. Guidance has been published on how to improve the health and wellbeing of the adult social care workforce.