It would be a huge shame if the Act caused distress and anxiety, or worse, or had any adverse consequences, because the intention behind the Act is obviously to provide reassurance and promote better outcomes.
The intention, or purpose, of the Act is clear from its terms and is spelled out in the explanatory notes. 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, depending on the exigencies of the coronavirus situation, for up to two years. Their purpose is to give local authorities a degree of flexibility where that is necessary to enable them to discharge their functions under the Care Act 2014 as well as they can be discharged, in the light of the coronavirus.
From a lawyer’s perspective, identifying the purpose of legislation, ie what it is seeking to achieve, is the critical first step. It is trite law that legislation must be construed so as to promote the underlying purpose, and public authorities discharging functions under legislation must do so to promote its purpose.
Consequently, to make an obvious point, if the extremely unlikely were to happen, and if a local authority was to use the Act as an excuse for not doing the very best it could to meet people’s needs, according an appropriate degree of priority to those with the severest needs, it would be acting unlawfully (as well as risking huge reputational damage and contradicting the fundamental reasons that people who have the vocation of caring for other people go into social care in the first place). This basic point really is that simple.
That is not to say that there is no reason for concern. Of course there is. The coronavirus represents an unprecedented threat to the health and welfare of those in need of care, their families and frontline staff. But the fundamental purpose of the Act plainly is to allow local authorities a degree of flexibility so that they ameliorate that threat in the most effective manner possible, bearing in mind local circumstances.
That is, in substance what the government has said in ‘Care Act easements: guidance for local authorities’, in the critical passage at the outset headed ‘Purpose of the easements’:
Local Authorities and care providers are already facing rapidly growing pressures as more people need support because unpaid carers are unwell or unable to reach them, and as care workers are having to self-isolate or unable to work for other reasons. The Government has put in place a range of measures to help the care system manage these pressures. Local Authorities should do everything they can to continue meeting their existing duties prior to the Coronavirus Act provisions coming into force. In the event that they are unable to do so, it is essential that they are able to streamline present assessment arrangements and prioritise care so that the most urgent and acute needs are met. The powers in the Act enable them to prioritise more effectively where necessary than would be possible under the Care Act 2014 prior to its amendment (referred to in this guidance as the Care Act). They are time-limited and are there to be used as narrowly as possible.
STEPHEN KNAFLER QC
3 APRIL 2020