Social care, COVID-19 and scrutiny

Posted on 27/03/2020 by Ed Hammond.

One of the aspects of the Coronavirus Act which has caused most concern has been the loosening of local authorities’ legal obligations in the Care Act.

Powers exist for local authorities to derogate from these obligations temporarily at the peak of the crisis – when that arrives. Government has said,

“it is crucial that local authorities should be able to prioritise care in order to protect life and reach rapid decisions over the provision of care without undertaking full Care Act compliant assessments. These provisions, which would only be brought into operation for the shortest possible time at the peak of the coronavirus outbreak, would allow local authorities to do this by temporarily releasing them from some of their duties under the Care Act 2014.”

You can find the full impact assessment for the Coronavirus Act, which contains commentary on the social care elements alongside the wider implications, here.

There is no suggestion that councils would willingly use this loosening of formal obligation as an excuse for seeking to withdraw or suspend people’s rights arbitrarily. But this prioritisation (and I recognise how loaded this otherwise neutral word could become), when it happens, is something that will have significant, direct impact on vulnerable people’s lives. It is right that it should be subject to scrutiny.

The decision about making changes to people’s entitlements should be subject to oversight. In our other blogpost published today we explore wider implications for scrutiny of the COVID-19 outbreak but in respect of this issue, particular care is needed.

A decision by a council to derogate from its duties should, we think, be accompanied by a public statement to this effect. Councils should set out what other options they have considered and what steps they have taken to discuss these options with partners and service users – not just immediately before a decision comes to be made.

A notification of this kind could act as a cue for the establishment of a standard task panel, meeting weekly and involving the relevant cabinet member(s) alongside a politically balanced set of scrutiny councillors. A scrutiny/cabinet hybrid, such a panel could give direct, real time support and challenge to executive councillors and senior officers. It could provide a space in which concerns about the implementation of such decisions could have, and could actively involve vulnerable people and others in need, as well as “mutual aid” and other voluntary groups picking up certain social care duties in consequence of the council’s decision. The Cabinet member could be required to report to this panel when it meets (perhaps fortnightly) to assert that prioritisation measures were still necessary, and to report on the steps they had taken to assure themselves that no other options were still available.

Once the immediate crisis has receded scrutiny could play a role in debriefing on the impacts of the decision. There may well have been negative consequences. How were they identified and managed? How were risks minimised, and by whom? What lessons can be learned for the design of care services in the future?

We continue to consider the kinds of “enhanced” scrutiny that may be required for critical, life and limb services as disruption has the potential to identify. In particular we intend to keep a watching brief over councils’ exercise of these powers, and the scrutiny response. If you have any insights on the approach which might be taken in your authority – either immediately or in the coming weeks – please let us know.

About the Author: Ed Hammond

Ed leads CfPS's work on devolution, transformation and on support to councils and other public bodies on governance and accountability.