First edition, 9 April 2020

It’s difficult to critique the Coronavirus Act without appearing impervious to the tremendous personal and professional challenges those working in public services face right now. But the legislation has the potential to seriously diminish social protection way beyond the demands of the health crisis we are currently in.

Just a week after the Prime Minister and his chief scientists told us we were adopting a ‘herd immunity’ strategy to fight Covid-19, with a target infection rate of 60% of the population (the strongest among us), emergency legislation was published dismantling adult social care rights and duties. 

The Coronavirus Act has removed local authority duties to assess and meet the care and support needs of disabled adults unless this would breach the person’s rights under the European Convention on Human Rights / The Human Rights Act (Schedule 12). The human rights backstop provides little comfort, as the disability rights organisation Inclusion London explains: “We know from experience that in order for human rights to be breached in [the] social care context the situation has to be very critical or severe”. 

The explanatory notes to the Act describe the intention as: “reduc[ing] operational burden so local authorities can prioritise the service they offer in order to ensure the most urgent and serious care needs are met”. We’re in the middle of a global pandemic, with local authorities under extreme pressure, though ‘operational burden’ still sticks in the throat. 

In children’s social care, local authority duties to provide welfare services to disabled children who are moving to adult services (requirements under both the Children Act 1989 and the Chronically Sick and Disabled Persons Act 1970) are disapplied (Schedule 12). The Act also removes assessment duties relating to children in need and young carers approaching adulthood. Like the suspension of Care Act duties towards adults, these changes took effect from 31st March.

Other provisions in the Act which have not yet come into force include a watering down of the duty in the Children and Families Act 2014 to secure special educational provision and health care provision, with authorities only having to make ‘reasonable endeavours’ (Schedule 17). Mental health detention will be possible on the recommendation of a single doctor, and the time limit for compulsory detention of people who would otherwise be in hospital voluntarily extends from 72 hours to 120 hours (Schedule 8). 

Department of Health and Social Care guidance quaintly describes the suspension of social care duties as ‘easements’, as if something favourable is taking place. To be fair, the guidance appears to have been drafted with the intention of scaring off local authorities from implementing the Act. It sets conditions which don’t appear in the statute which means they are not directly enforceable:

A Local Authority should only take a decision to begin exercising the Care Act easements when the workforce is significantly depleted, or demand on social care increased, to an extent that it is no longer reasonably practicable for it to comply with its Care Act duties (as they stand prior to amendment by the Coronavirus Act) and where to continue to try to do so is likely to result in urgent or acute needs not being met, potentially risking life. Any change resulting from such a decision should be proportionate to the circumstances in a particular Local Authority.

Guidance issued last Friday by the Department for Education in respect of children’s social care risks legal challenge for entirely opposite reasons. It wrongly suggests that local authorities no longer need meet their statutory duties to all care leavers. Under a section titled ‘Principles’, relating to children’s social care generally, the guidance appears to actively encourage councils to dispense with their legal obligations:

We know that local authorities and local safeguarding partners will want to continue to meet their statutory duties as far as they can, but there will be times in the current circumstances when this is not possible.

The guidance goes on to suggest that it is lawful to deviate from statutory requirements in children’s social care so long as detailed records are kept:

Where authorities need to deviate from standard practice and statutory requirements, we expect that they will keep clear records to capture the rationale and risk assessment for that.

Unless statutory duties have been removed, they remain the law and this coronavirus guidance does not change that. As with the children’s social care ‘myth-busting’ guide removed last year after my charity’s legal action, the risk is that local authorities and social workers will follow inaccurate parts of the guidance assuming they correctly apply the law. 

There is recent form on trying to destabilise the legislative basis of children’s social care. Exemption clauses in the 2016 Children and Social Work Bill, had they been passed, would have allowed local authorities to opt-out of their statutory duties in children’s social care for up to six years. Ministers were to be empowered to exempt struggling local authorities from the very legal obligations they were failing to meet – whether the local authority wanted this or not. The then Shadow Children’s Minister, Emma Lewell-Buck MP, herself a former social worker, asked the House of Commons Library for a list of the legislation which councils could opt out of; it ran to more than 11 pages. There was no crisis facing the country when these wholesale opt-outs from children’s social care statutory duties were imagined.

The latest state of local government finance report, published by the Local Government Information Unit in February, found that 10 per cent of councils fear being unable to meet their statutory duties this year, and one in seven anticipate an increase in legal challenges. Children’s services and education was the top immediate pressure for local authorities, with “councils [un]able to shield children from the worst of the budgetary pressures”, and adult social care was the primary long-term pressure. 

A decade of welfare retrenchment has wreaked havoc on social protection and the Coronavirus Act makes it a whole lot easier for the rights of the most vulnerable to be further denied. Described as emergency legislation, it lasts for two years (with six-monthly reviews) though ministers have the power to extend it beyond that – for six months at a time for however long they determine (Section 90).

Carolyne Willow is a social worker and founder Director of Article 39 children’s rights charity.