A number of measures in the Coronavirus Act 2020 (The Act), which aimed to reduce pressures on front line NHS and Local Authority staff, also set out to relax or ease certain obligations when assessing a person’s entitlement to social care and continuing health care. The relaxation measures were termed “easements”. The potential impact of these measures in the context of social care was covered in our June 2020 blog here.
As part of a planned one year review of The Act, the government has decided to expire 12 sections of The Act, including the social care easements. These soon to be expired/suspended provisions are no longer seen as necessary to respond to the pandemic.
In contrast, the provisions allowing the NHS the option not to comply with the requirement to carry out continuing healthcare (CHC) assessments, remain.
A copy of the annual report can be found here.
Recap - The Act
The Act was designed to protect public health and ensure sufficient preparation for a worst-case scenario.
The Act introduced temporary changes to the Care Act 2014 by reducing duties on local authorities called ‘easements’ (S.15). It also allows the NHS the option not to comply with the requirement to carry out CHC assessments (S.14).
Social care assessments by Local Authorities
As a result of easements, local authorities did not have to complete all assessments or meet the social care needs usually expected of them, except in circumstances where this would breach a person’s human rights.
Easements were only to be invoked if a local authority’s workforce was “significantly depleted” or the demand had increased to the extent that it was “no longer reasonably practicable” to meet Care Act duties and trying to do so would result in urgent needs not being met.
Despite initial concerns over the impact of the pandemic, use of easements has been limited. Only 8 out of 151 local authorities in England have operated under them and none have used them since June 2020. Local authorities have coped with significant pressures over winter using the existing Care Act flexibilities. This – and the improving position with regard to control of the pandemic – has led to the decision to remove the easement.
NHS continuing healthcare assessments
NHS CHC assessments were paused once nationally, during the first wave of the pandemic, from March to August 2020. However, they were reintroduced from 1 September 2020 and action is being taken to clear the backlog of deferred CHC assessments.
In the two months prior to the one year review in March 2021, S.14 of The Act had not been used. However, it remains in force, as a last resort should NHS capacity be at risk of becoming overwhelmed and all other options have been exhausted, to support timely discharge from hospital and the effective prioritisation of NHS staff and resources.
It follows that the process of assessment by the NHS of seriously injured accident victims for continuing healthcare needs could become impacted if the Act’s easements are invoked.
Funding for catastrophic injury claimants
Whilst some practitioners have experienced difficulties persuading local authorities to initiate or continue the provision of statutory funding to catastrophically injured claimants over the last year, it seems that this has been largely down to the limitations caused by the government restrictions and lockdowns, rather the impact of The Act itself.
Difficulties in obtaining and securing statutory funding, has, in some cases resulted in the need for commercial care. However it is hoped that with the role out of the vaccination programme and the easing of restrictions these issues will subside in due course.
The partial relaxation of the easements is a step along the road to normality, though the normality of securing local authority funding and/or continuing healthcare was not always easy. It remains as vital as ever to have detailed knowledge of the provisions and entitlements as well as the right expert involvement to ensure that statutory funding is secured and brought into account in serious injury claims as well as protecting against double recovery.
Anne O'Kane is an Associate in the Care, Statutory Funding and Rehabilitation Subject Matter Group at BLM.