Did Covid-19 social care 'easements' make anything easier?

views and opinions expressed in this article are those of the author and do not necessarily reflect the official policy or position of the University of Birmingham

“The bigger issue remains the chronic underfunding and devaluing of the social care sector, of which the fleeting emergence of the social care easements was but a symptom.”

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The past year has been exceptionally difficult for just about everyone, and even more so for older people, those with disabilities, and others in need of community care. In addition to disproportionately high death rates, the lockdown and other pandemic mitigation strategies have had a profound impact on the level and quality of care received by some of society’s most vulnerable people.

In early 2020, the Government, and particularly the DHSC, appeared to be caught off-guard and ill-prepared. Once the seriousness of the situation became apparent, there was a scramble to devise new laws in response to the fast-building crisis in health and social care, the broader economy, and public health more generally. There was limited consultation and very little Parliamentary scrutiny. The emergency powers contained in the Coronavirus Act 2020 (which came into effect on 31 March 2020) included a novel legislative device called ‘easements,’ designed to ‘ease’, ‘flex’ or ‘relax’ the remit of existing laws. These were applied in the context of health and social care, to ease certain obligations on Local Authorities as stipulated in the Care Act 2014, allowing them to streamline and prioritise workforce resources and ensure the provision of the most acute and urgent care. According to the Guidance issued to Local Authorities, the easements were only meant to be activated when absolutely necessary to ensure safety; they were to be temporary, kept under review, and used as narrowly as possible.

Nonetheless, their introduction prompted widespread alarm amongst service users, social workers, and community and advocacy organisations working with older, disabled, and other vulnerable people with social care requirements. Even recognising the pressures under which Local Authorities and service providers were now operating, many viewed the new legislation as a serious threat to peoples’ fundamental rights. It was becoming clear that many of the people most vulnerable to the virus were simultaneously facing a reduction in essential care and support. By the middle of 2020, 7 in 10 people with learning disabilities had had their social care cut or significantly reduced, and 79% of family members had been forced to take on further unpaid caring duties in the face of cuts.

As it happened, only eight Local Authorities formally activated and implemented higher level easements in England and Wales, and all of these stopped using them within a few months. The lower levels of easement, however, were considered to be mere ‘flexing’ of the mandatory provisions in the Care Act; these didn’t need to be notified to the DHSC and so are very difficult to track or quantify. Service users and providers continue to report on the loss and long-term closure of day-care centres, group activities, travel training, and at-home support; and there is little clarity on how Local Authorities will catch up on reduced assessments, or how they will deal with retroactive demands for payment. Some wonder whether the catch-all “cancelled because of Covid” has become a cover for these lower-level easements, and whether such easements to the nature, quality and level of care provision will linger once the immediate danger of contagion has passed.

Sad senior woman looking out of her window with a face mask on

This concern is highlighted in an open letter of 19 March 2021 signed by at least 27 Disabled Peoples’ Organisations: “As the country moves into a ‘recovery’ phase, and the Coronavirus Act approaches its second review, now is the time to consider the impact this power has had. At such a strained and worrying time for everyone, this unnecessary power that no Council is even using hangs over the heads of disabled people, causing only anxiety. At the minimum, it should now be switched off.” Under concerted pressure from advocacy and campaign groups, social workers and lawyers, as well as MPs from across the political spectrum, Matt Hancock and the DHSC have ‘expired’ the easements from the legislation ahead of today’s Parliamentary Roadmap to Recovery debate (25 March 2021).

So, in short, the social care easements do not appear to have eased the burden for anyone. Despite the language of ‘easing’, ‘flexing’ and ‘relaxing’, to date there is little clear evidence to suggest that they made life easier for Local Authority decision-makers; for social workers; or for service providers; and certainly not for service users or their carers. As evidenced by the limited uptake nationally, and the short-lived implementation of the few authorities that activated them shortly after they passed into law, there is widespread unease at the prospect of formally rolling back the rights and obligations enshrined in the Care Act - rights and obligations that ought to serve and protect those who were already most vulnerable to the impacts of pandemic. The bigger issue remains the chronic underfunding and devaluing of the social care sector, of which the fleeting emergence of the social care easements was but a symptom.

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