20 March, 2020 Open access
20 March, 2020 Open access
Leading community care law practitioner says that the Bill is the ‘most draconian legislation enacted since the Second World War’
The Coronavirus Bill 2019-21 includes provisions that will 'effectively suspend or downgrade almost all social care duties’, according to leading community care law practitioner Luke Clements.
The Explanatory Notes to the Bill - that received its first reading yesterday - advise that its provisions are ‘extraordinary measures’ that do not apply in normal circumstances and that -
‘For this reason, the legislation will be time-limited for two years and it is neither necessary nor appropriate for all of these measures come into force immediately. Instead, many of the measures in this Bill can be commenced from area to area and time to time, so as to ensure that the need to protect the health can be aligned with the need to safeguard individuals’ rights. These measures can subsequently be suspended and then later reactivated, if circumstances permit, over the lifetime of the Act.’
In relation to measures in the Bill affecting social care duties during the COVID-19 crisis, paragraph 174 of the Notes advises -
‘The effect of [Clause 14 and Schedule11] is that various duties on Local Authorities in Part 1 of the Care Act 2014 or Parts 3 and 4 of the Social Services and Well-being (Wales) Act 2014 (SSWWA) to assess needs for care and support, and to meet those needs, are replaced with a duty on Local Authorities to meet needs for care and support where for England, not to do so would be a breach of an individual’s human rights, and a power to meet needs in other cases. In Wales the test is aligned with the existing SSWWA provision where an adult or adult carer may be experiencing or at risk of abuse or neglect.’
NB - Clause 15 of the Bill makes similar provision to that for England and Wales in relation to downgrading duties to assess needs of adults and carers in Scotland.
However, commenting on the Bill, Professor of Law at Leeds University, and author of LAG’s publication, 'Community Care and the Law', Luke Clements has said -
‘The Government has published the Coronavirus Bill. It is the most draconian legislation enacted since the Second World War and suspends a whole raft of legislative duties - not least in relation to health, social care, social security and education.
Schedule 11 of the Bill effectively suspends / downgrades almost all adult social care duties (including charging duties). As the explanatory notes (at para 175) explain, the various duties to assess and meet eligible needs of adults and carers in the Care Act 2014 and the Social Services and Well-being (Wales) Act 2014 (SSWWA) are downgraded to powers.
A briefing note prepared by the barristers chambers at 11KBW expresses significant concern about the suspension of key social care provisions.’
Luke Clements’ note on the Coronavirus Bill is available from his website.
NB - for more information on the social care measures in the Bill, see the House of Commons Library briefing on health and social care and the Coronavirus Bill from parliament.uk