There has long been a tension between the public law statutory duties owed by local authorities in relation to meeting the needs of disabled and vulnerable children and adults, and the ability of the defendants to prevail upon claimants, and the local authorities themselves, to exercise such duties particularly in claims involving catastrophically injured claimants.
The Coronavirus Act 2020 [The Act] brings additional focus to this tension because it introduces changes to the Care Act known as easements which reduce the duties on local authorities in relation to the provision of care and funding, by converting those duties to powers.
The Act addresses the conflicting challenges raised by an increased requirement for care especially among vulnerable individuals and groups in the context of a depleted social care workforce itself impacted by illness and self-isolation.
The Act’s specifics are beyond the scope of this blog but the guidance notes states that the easements should only be invoked when a local authority's workforce is ”significantly depleted" or the demand is increased to the extent that it is "no longer reasonably practicable" to meet Care Act duties and trying to do so would result in urgent needs not being met, potentially risking life.
Whilst the guidance notes emphasise that local authorities are expected to continue operating on a "business as usual" basis until their resources are significantly depleted, once the easement provisions have been triggered individual's families and care providers may feel left at the mercy of local decision-making and local policies developed on the hoof on the basis of broad-brush general principles.
The Department of Health and Social care is required to issue a bi-monthly report detailing where and how provisions of the Act are being relied upon. The first report was issued on the 29 May. In the context of local authority duties, it states that seven local authorities have notified reliance on the easements in the Act with the aim of ensuring that most urgent and acute care needs are met. However, a consequence is likely to be a suspension or reduction in social care duties to disabled adults in those authority areas. The civil rights campaign group Liberty has already written to them seeking justification for invoking these "easements" of their duties.
Already at an anecdotal level I am finding that it is more difficult to persuade local authorities to initiate or, where already in place, continue, provision of statutory funding and services to catastrophically injured claimants. This may be due to a combination of the Act and practical limitations imposed by the lockdown resulting in the support having to be purchased from commercial providers which increases the overall cost
It is likely that these difficulties will persist for the foreseeable future and claimant's solicitors may be increasingly reluctant to seek – and local authorities unable to provide – statutory funding and support which has hitherto formed part of care and rehabilitation packages notwithstanding the decision in Peters.
It is also likely that local authorities themselves will experience claims against them alleging inappropriate exercise of these easement provisions and whilst the outcome of these challenges may be uncertain, what is not is that they will result in further cost and impact on local authorities and their insurers.
It is well recognised, however, that there can be cases where it is very much in the claimant’s interests to pursue statutory funding and assistance (for example cases of contributory negligence) and always a need to avoid double recovery, that the extent of public law entitlement under the Care Act and how, if at all, the Act permits changes in the way in which a local authority approaches their obligations must continue to be a central part of catastrophic injury claims planning.
As the impact becomes clearer more information on this subject will be posted in future articles.