Breach of statutory duty, Care Act 2014, Care Act easements, care rationing, Coronavirus Act, COVID-19, domiciliary care, family care, NIHR, Older People and Frailty Policy Research Unit, Omicron, Research, social care, unmet need
“Carers already play a vital role in the care and support system and their contribution during this emergency period will be even more critical.”
Affiliation: University of Manchester, National Institute for Health Research (NIHR) Older People and Frailty Policy Research Unit
The Coronavirus Act 2020 temporarily gave local authorities the power to water down (or ‘ease’) their legal duties under the Care Act 2014 in limited circumstances. Eight out of the 151 local authorities with responsibility for adult social care in England triggered the easements. Yet most, if not all, experienced the same challenges. Did the minority do so unnecessarily? Or did the vast majority breach their statutory duties? Our research into co-resident carers of someone living with dementia reveals endemic legal uncertainty during the pandemic social care crisis.
The easements were enacted to address a foreseeable apocalyptic scenario whereby the social care workforce was so depleted, or the demand for social care was so high, as to pose a risk to life if local authorities were continually bound by their statutory duties. They enabled local authorities to temporarily reduce or withdraw care and support from some people to make sure those most in need could be prioritised during the pandemic without incurring legal liability for breach of statutory duty.
The social care apocalypse did not materialise during the initial waves of Covid-19 in 2020-21. Remote social work and families shielding from the risk of viral exposure meant that staffing was far from depleted and the demand for social care in fact fell dramatically. Understandable fears of domiciliary care bringing a deadly virus into their homes, coupled with concerns about loved ones going in but never to return from residential care, resulted in the caring burden falling typically on the shoulders of unpaid carers. Partners, furloughed members of the family or friends stepped into the breach.
Our research reveals that local authorities across England confronted similar issues, namely: (a) the closure of day services, (b) support groups closing or moving online, (c) dramatic reductions in the provision of domiciliary care, (d) significantly reduced access to care homes for carer respite, (e) inadequate personal protective equipment for some care staff, (f) diverting resources from Care Act reviews to frontline delivery, and (g) a drop in adult safeguarding referrals. Why then did some local authorities trigger their need for legal protection via the Care Act easements whilst others left themselves exposed?
Differing legal interpretations of the Care Act seem to explain the variation at least partly, coupled with what was seen as the stigma of the easements and political and lobbying pressures not to invoke easements. But what of the vast majority of local authorities that reduced service provision without triggering the legal protection? Were they arguably in breach of the Care Act if people were left with unmet need for care? And with widespread reporting of councils needing to ration care and care providers turning away requests for care the situation is now looking grave. Indeed, with the easements having been repealed in July 2021, any local authorities unable to fulfil their Care Act duties now risk legal exposure without any legal protection. Since Omicron took hold from the end of 2021, only now are local authorities facing the crisis envisaged by the 2020 easements, as furloughed family return to work and burnt-out carers seek social help whilst swathes of the social care workforce self-isolate. Unmet need is erupting now that the protection afforded by the easements seems long gone.
This blog presents independent research funded by the National Institute for Health Research Policy Research Unit in Older People and Frailty. The views expressed are those of the authors and not necessarily those of the NIHR or the Department of Health and Social Care.
Policy Research Unit Programme Reference Number PR-PRU-1217-21502
 Middlesbrough [ended 22 April 2020]; Sunderland [ended by 18 May 2020]; Birmingham [ended by 18 May 2020]; Staffordshire [ended by 26 May 2020; Coventry [ended by 1 June 2020]; Warwickshire [ended by 1 June 2020]; Derbyshire (Stage 4) [ended by 9 June 2020]; Solihull (Stage 4) [ended by 6 July 2020].