for better mental health

Coronavirus and social care rights

The Coronavirus Act 2020 is a new law to help deal with the coronavirus (Covid-19) outbreak. It applies across the UK, including in English and Welsh law.

The new Act includes some changes to laws which affect the rights of people with mental health problems.

This information is about legal changes which affect social care rights. It is for adults who receive care from local authorities in England and Wales.

These legal changes give local authorities the power to prioritise certain parts of their adult social care services. This is so they can support the people with the most urgent and severe care needs. 

If local authorities choose to use the new powers, the powers only apply for a certain period of time. This is known as the 'emergency period'. 

This information covers:

Changes to social care rights

If you:

  • already receive social care
  • already receive social care but your care needs have changed, or
  • need to start receiving social care

there may be changes to how you receive your care during the emergency period. This includes the level of service that your local authority is legally required to provide.

You may also find it helpful to read our pages on social care, to find out how this works outside the emergency period.

The changes that affect you during the emergency period will depend on your social care situation:

Your local authority should try to meet all of your care needs whenever they can.

But their legal duty to meet your needs depends on whether your local authority is in England or Wales:

  • In England: Your local authority only has a duty to meet your needs if not meeting your needs would be a breach of your human rights. These rights are outlined in the Human Rights Act 1998, and are sometimes known as your 'convention rights'.
  • In Wales: Your local authority only has a duty to meet your needs if this will protect you from abuse or neglect.

If you receive social care in England, you must be involved in any decision to change your support. This must happen before any changes are made.

Your local authority should still try to:

  • assess your new care needs
  • decide if your needs are eligible for social care support
  • plan your care and support
  • meet your assessed needs.

But their legal duty to meet your needs depends on whether your local authority is in England or Wales:

  • In England: Your local authority only has a duty to meet your needs if not meeting your needs would be a breach of your human rights. These rights are outlined in the Human Rights Act 1998, and are sometimes known as your 'convention rights'.
  • In Wales: Your local authority only has a duty to meet your needs if this will protect you from abuse or neglect.

If you receive social care in England, you must be involved in any decision to change your support. This must happen before any changes are made.

Your local authority should still try to:

  • assess your care needs
  • decide if your needs are eligible for social care support
  • plan your care and support
  • meet your assessed needs.

But their legal duty to meet your needs depends on whether your local authority is in England or Wales:

  • In England: Your local authority only has a duty to meet your needs if not meeting your needs would be a breach of your human rights. These rights are outlined in the Human Rights Act 1998, and are sometimes known as your 'convention rights'.
  • In Wales: Your local authority only has a duty to meet your needs if this will protect you from abuse or neglect.

 

Changes to support for carers

If you are a carer and you:

  • already receive support for your caring role
  • already receive support for your caring role but your needs have changed, or
  • need to start receiving support for your caring role

there may be changes to how you receive your support during the emergency period. This includes the level of service that your local authority is legally required to provide.

You may find it helpful to read our page on carers' social care rights alongside this information, to find out how it normally works.

The changes to your support during the emergency period will depend on your situation:

Your local authority should still try to meet all of your needs whenever they can.

But their legal duty to meet your needs depends on whether your local authority is in England or Wales:

  • In England: Your local authority only has a duty to meet your needs if not meeting your needs would be a breach of your human rights. These rights are outlined in the Human Rights Act 1998, and are sometimes known as your 'convention rights'.
  • In Wales: Your local authority only has a duty to meet your needs if this will protect you from abuse or neglect.

If you receive support in England for your caring role, you must be involved in any decision to change your support. This must happen before any changes are made.

Your local authority should still try to:

  • assess your new support needs
  • decide if your needs are eligible for social care support
  • plan your support
  • meet your assessed needs.

But their legal duty to meet your needs depends on whether your local authority is in England or Wales:

  • In England: Your local authority only has a duty to meet your needs if not meeting your needs would be a breach of your human rights. These rights are outlined in the Human Rights Act 1998, and are sometimes known as your 'convention rights'.
  • In Wales: Your local authority only has a duty to meet your needs if this will protect you from abuse or neglect.

If you receive support in England for your caring role, you must be involved in any decision to change your support. This must happen before any changes are made.

Your local authority should still try to:

  • assess your support needs
  • decide if your needs are eligible for social care support
  • plan your support
  • meet your assessed needs.

But their legal duty to meet your needs depends on whether your local authority is in England or Wales:

  • In England: Your local authority only has a duty to meet your needs if not meeting your needs would be a breach of your human rights. These rights are outlined in the Human Rights Act 1998, and are sometimes known as your 'convention rights'.
  • In Wales: Your local authority only has a duty to meet your needs if this will protect you from abuse or neglect.

If you receive support in England for your caring role, you must be involved in any decision to change your support. This must happen before any changes are made.

What do the social care changes mean in practice?

During the emergency period, local authorities should still try to meet everyone’s eligible social care needs under the Care Act or the Social Services and Well-being Act, unless it is no longer possible because of:

  • increased demand for social care
  • reduced availability of people working in social care.

If a local authority can no longer meet everyone’s eligible social care needs, the changes to the local authority's legal duties mean they can prioritise certain parts of their adult social care services. These changes are also known as ‘easements’.

Only a small number of local authorities have used these changes since they were introduced. 

The Care Quality Commission has a webpage where you can check if your local authority is currently using these changes, if you are in England. 

Scroll down the page to check the list of ‘Local authorities that have exercised the easements,’ and see if your local authority is included in this list. You should check it from time to time as local authorities could start or stop using the changes at different times.

If you are in Wales, you should check your local authority’s website or call their adult social care team to find out if they have made the changes. The Welsh Local Government Association (WLGA) website has a list of links to local authority websites across Wales.

If your local authority is in England, they only have a legal duty to meet your needs if not meeting them would be a breach of your human rights. These rights are outlined in the Human Rights Act 1998, and are sometimes known as your ‘convention rights’.

Some of the human rights that local authorities will need to think about include: 

The types of service you have a legal right to will depend on your individual circumstances and needs. But these are some examples of services which your local authority may need to provide to meet your human rights:

  • Assistance with your personal care.
  • Support getting food and other essentials.
  • Assistance with managing your finances or maintaining your tenancy.
  • Support to stay in touch with your friends and family.

If your local authority is in Wales, they only have a legal duty to meet your needs if this will protect you from abuse or neglect.

There are lots of different types of abuse, but in this context it can mean:

  • physical abuse
  • sexual abuse
  • psychological abuse
  • emotional abuse
  • financial abuse, including having your money or property stolen or misused, being put under pressure to use your money or property in particular way, or being defrauded.

Abuse can take place in any setting including your home, in a care home, in supported living or in a hospital.

Neglect means a failure to meet your basic physical, emotional, social or psychological needs, which is likely to result in an impairment of your wellbeing.

Local authorities do not have a legal duty to do a full assessment of your needs during the emergency period. But they should still try to find out what your needs are.

There are lots of different ways that a local authority can find out your needs. For example:

  • A face to face meeting with you.
  • A telephone or video meeting.
  • Asking another professional involved in your care to find out about your needs. For example, this could be an occupational therapist, community nurse or GP.
  • Finding out about your needs from other people or professionals who support you.
  • Ask you to complete a self-assessment.

Whichever way your local authority uses to find out about your needs, they should keep a record of what they find out.

Either during or after the emergency period, there should be a full assessment of your needs so they can determine what your ongoing care should be.

Your local authority should have a clear method for you to contact them if you don’t think you are receiving the right level of care. This may be their standard complaints process. You right to challenge unlawful decisions through judicial review remain unchanged.

Changes to direct payments

Direct payments can still be paid to meet your needs during the emergency period. Your local authority should still try to meet all of your needs whenever they can.

But their legal duty to meet your needs depends on whether your local authority is in England or Wales:

  • In England: Your local authority only has a duty to meet your needs if not meeting your needs would be a breach of your human rights. These rights are outlined in the Human Rights Act 1998, and are sometimes known as your 'convention rights'.
  • In Wales: Your local authority only has a duty to meet your needs if this will protect you from abuse or neglect.

If you receive direct payments in England, you must be involved in any decision to change your support. This must happen before any changes are made.

What do the changes to direct payments mean in practice?

Where possible, you should continue to use your direct payments in the way you used them before the emergency period. But where this is not possible, you will be allowed to use your direct payments in a different or more flexible way during the emergency period.

For example, if your normal paid carer is unavailable, you may be able to pay family members in your household to meet your care and support needs.

The Government recommends making a contingency plan for how to use your direct payments during the emergency period, in case you can’t use your direct payments in the normal way.

Before you start using your direct payments in a different way, you should try to speak to the organisation that pays them. This is usually your local authority, but in some cases the NHS may also make direct payments.

If you can’t speak to your local authority or the NHS about this, you should think about the following before using your direct payments differently:

  • Is it necessary for you to use your direct payments in a different way to keep yourself safe and out of hospital?
  • Do you need to make the decision to use your direct payment in a different way immediately, or can you wait to hear back from your local authority or NHS?

If you decide to use your direct payments differently, you should keep a record of why you used them in this way and how you spent them. You should also keep any receipts or evidence of expenditure.

You may be asked to justify why you spent your direct payments differently during or after the emergency period.

If you usually use your direct payment to pay a personal assistant, there may be employment and tax law implications of changing how you use the direct payment. 

The Low Incomes Tax Reform Group has produced a Disability Tax Guide, which has helpful information about this.

If you are unable to meet your needs using your direct payments and you have no alternative arrangements, you should contact your local authority or the NHS who will have policies in place to respond to these types of emergencies.

The UK Government and Social Care Wales have lots of information to help explain how you can use your direct payments during the emergency period.

This information applies in England:

This information applies in Wales:

See our information on direct payments to find out more about how these work outside the emergency period.

Other changes during the emergency period

There are several other areas of social care which are affected by legal changes from the Coronavirus Act 2020. These changes only apply during the emergency period.

This information explains these changes:

Most people have to pay something towards the costs of their social care. 

Your local authority decides this based on your financial circumstances. But the way this happens may be affected during the emergency period:

If you already receive support

If a local authority already provides you support, they can continue to charge you for the costs of meeting your needs during the emergency period.

If your financial circumstances change during the emergency period and cannot afford your social care contributions, you should speak to your local authority to explain the situation as soon as possible.

If you need to start receiving support

If you are asking the local authority to provide you support for the first time during the emergency period, they can assess your financial circumstances. This is to help them decide whether to charge you for some of the costs of meeting your needs.

If they are unable to assess your financial circumstances, they can still start providing you support. For example, they may be unable to do the assessment at this time because they are short of staff. They cannot charge you without completing a financial assessment to see what you can afford.

But if they cannot do a financial assessment right now, they will be able to complete one at a later date. This may not happen until after the emergency period has ended.

Once they have completed a financial assessment, they may decide to charge you for the costs of providing support.

This may include charging you for the costs of any previous support you received, including support you received during the emergency period. But they can only charge you if they inform you that you may be charged for your support before you start to receive it. 

No matter when you are asked to pay, you should only be asked to pay what you can afford and your local authority should clearly explain how the charges have been calculated.

See our page on financial assessments to find out more about how these work outside the emergency period.

You may be planning to move house to live in a different local authority area. If you do this, your current and future local authorities should be in contact with each other about your social care. This is so they can work together to make sure your care and support aren't interrupted when you move.

But there is no legal duty for the local authorities to do this during the emergency period.

See our information on moving house and social care to find out more about how this works outside the emergency period. This includes information on contacting your current and future local authorities about your care.

Local authorities are responsible for providing safeguarding in social care. These safeguarding responsibilities will not change during the emergency period.

See our information on safeguarding in social care to find out more about this.

If a local authority decides that it will meet your needs by placing you in care home accommodation, your right to choose which care home you go to may be affected during the emergency period:

  • Outside the emergency period, if your local authority assesses your needs and decides you should go into a care home, you have a right to accept or refuse that support. If you accept this support, you generally have a right to choose which care home you go to.
  • During the emergency period, if your local authority assesses or reassesses your needs and decides you should go into a care home, you still have a right to accept or refuse that support. But if you accept this support, you don't have a right to choose which care home you go to. Your local authority should try to take your preference into account.

This information also applies to supported living placements in England.

After the emergency period

Once the emergency period is over, there will be lots of people whose needs have to be assessed or reviewed. Some of these people may who require additional social care support.

Your social care rights will return to normal but it may take longer than usual for local authorities to meet your needs. See our information on social care to find out what your rights are outside of the emergency period.

If your needs have not been assessed once the emergency period has ended, and you want to take a legal challenge against a local authority, the court will need to take into account:

  • how long the emergency period was, and
  • how many other assessments the local authority needs to complete.

Further support

This information was published on 14 October 2020. 

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