Stephen Knafler QC, Landmark Chambers
The coronavirus is creating, and will continue to create, huge practical problems for people in need of social care and all those involved in providing it. Many of the practical issues are flagged up in an excellent article on Community Care, here.
Those at the front line of social care are every bit as heroic and as deserving of our gratitude as doctors and nurses.
The coronavirus may result in some legal issues arising, but one may hope that a spirit of goodwill, compassion, best efforts and give-and-take will mean that expensive and distracting recourse to the courts will prove unnecessary.
The purpose of the Coronavirus Bill is clear from its terms and is spelled out in the explanatory notes, here. It is to mitigate the impacts of a coronavirus pandemic, inter alia, by easing the burden on frontline staff so as to enable effective action to be taken to address the coronavirus threat. The measures are extraordinary, emergency measures of a precautionary and protective nature. They can be suspended, or revived, time and again, depending on the exigencies of the coronavirus situation, for up to two years.
The latest summary of impacts of the Bill is here.
The main provisions addressing adult social care are at section 14 and Schedule 11 of the Bill, which is here. They are straightforward. Essentially:
- local authorities will not be under a duty to assess needs for care and support, make eligibility determinations or meet eligible needs, or to undertake financial assessments, unless not to do so would be a breach of an individual’s human rights; but
- they will continue to have a power to assess and meet needs, and to undertake financial assessments; and
- they will have the power to (i) provide urgent care to individuals without a full assessment, and without a financial assessment; and to (ii) prioritise the provision of care and support.
The downgrading of duties to powers is fully retrospective, subject to any transitional, transitory or saving provisions in regulations that bring the Bill into force.
In addition, the secretary of state may issue guidance which local authorities will be required to take into account or comply with if the secretary of state so directs. Such guidance will override any existing guidance, eg the care and support statutory guidance.
It is understandable that everyone involved in social care will be highly concerned about the practical implications of the coronavirus.
Legal issues have also been raised about the Bill in various quarters. It is fair to say that the Bill could be usefully revised so that it expressly provides a more careful structure, as suggested here, for example; it could at least expressly impose a ‘best endeavours’ duty. But some concerns (not those in the blog just referred to) may be overstated.
It is obviously true that, unless the local authority considers that it is necessary to meet needs to avoid a breach of an adult’s human rights, the Bill has removed a raft of statutory duties to assess and meet needs while leaving the power to do so in place.
However, it is worth reminding oneself that, whilst statutory duties are important, they do not cast a spell that summons up social workers, care workers, physical resources and finance where, in the real world, none exist. It is, therefore, well-established that the courts will not enforce even the plainest statutory duty against a local authority in circumstances where the local authority does not have the resources to hand to discharge that duty, but is doing its very best to acquire them. Accordingly, for example, if the coronavirus resulted in illnesses amongst care workers such that a local authority was unable to find and pay enough care workers to meet all the needs it was under a duty meet, then, even without the Bill, the courts would not enforce that duty against a local authority that was doing its best to source alternative care workers.
On the other hand, it is equally the case that some powers are more potent and more amenable to judicial enforcement than others. For example, it is well established that every statutory power must be exercised on a proper understanding of the purpose for which it was conferred and so as to promote that purpose, and not tilt against it. The purpose of the powers in the Care Act 2014, as amended by the Bill, is clear. It is to give local authorities a degree of flexibility and breathing space so that they can prioritise and use whatever resources they have, from time to time, in order to do their level best to assess and meet everyone’s care and support needs. In particular, the more serious needs that require to be prioritised. In the real world, there is no prospect of any local authority doing anything less than its absolute best in the coming weeks and months to care for vulnerable individuals. Hypothetically, however, if a local authority failed to meet that standard and then put matters right, in a serious enough case, the courts will surely enforce the power.
That will likely be the most appropriate remedy, if it is ever needed; as other commentators have noted, the Human Rights Act 1998 only plays a real, effective role in social care cases in extreme or unusual circumstances. That is because the Article 3 EHRC threshold is extremely high and, under Article 8, local authorities that make decisions about the allocation of social resources are generally allowed a wide margin of judgment. That is not to say that the Human Rights Act will never count: in R (Bernard) v Enfield LBC  EWHC 2282 Admin, (2002) 5 CCLR 340 there was (just) no breach of Article 3, but there was breach of Article 8, where Enfield failed to offer suitable alternative accommodation to Mrs Bernard, who was unable to use her wheelchair at home, was confined to the living room where she had no privacy and was in discomfort, was wholly dependent on her husband, and was unable to gain access to the bathroom without great difficulty, and not always in time, although she was doubly incontinent.
There is departmental guidance (rather than guidance from the secretary of state) of a preliminary but still very useful nature here. There is also an ‘ethical framework’ for the provision of adult social care in the light of the coronavirus, which is here. This important document explains how those concerned should approach the difficulties that will likely arise, by reference to the principles (which the framework expands upon in practical and useful ways) of ‘respect’, ‘reasonableness’, ‘minimising harm’, ‘inclusiveness’, ‘accountability’, ‘proportionality’ and ‘community’. One would expect any formal guidance from the secretary of state to be along these lines and, pending any guidance, one would expect local authorities to discharge their functions under the Care Act 2014 in the spirit of this ‘ethical framework’ and the departmental guidance.
It is possible that local authorities’ responses to the coronavirus may result in some litigation and it could be that some litigation may helpfully clarify aspects of the Bill, if it becomes law, and/or provide a remedy in an extreme, unusual or intractable case. If, however, local authorities do their very best to meet the care and support needs of vulnerable adults in their area, in the manner outlined in the ‘ethical framework’, it may be that litigation can be kept to a minimum, that the maximum resources available can be devoted to meeting care and support needs and that vulnerable adults can have some assurance that local authorities are doing their best and that any difficult decisions are fair, evidence-based and proportionate.
I and/or colleagues of mine will try to post more detailed blogs/general advice on the coronavirus and social care in the coming days.
STEPHEN KNAFLER QC
24 MARCH 2020