1. This note has been prepared by an ad hoc group of specialist barristers (names as below). It sets out some initial ideas to amend Schedule 11 of the Coronavirus Bill to avoid a wholesale removal of duties to provide adult social care. We consider that Schedule 11 as currently drafted is likely to have a serious negative impact on adults with care and support needs and their carers.
2. Part I of Schedule 11 (as introduced to Parliament) essentially suspends the Care Act 2014 duties in England to assess and arrange services to meet the needs of disabled adults. The only exception is where a failure to provide services would result in a breach of the ECHR. The caselaw on ECHR breaches in the realm of social care sets a high threshold in relation to both Article 3 and Article 8, so the proposed Bill risks leave many disabled adults with no entitlement to care (at a time when their need for care may be considerable).
3. Part II of Schedule 11 similarly suspends key provisions in the Social Services and
Well-being (Wales) Act 2014 unless services are needed to protect an adult from abuse or neglect or a risk of abuse or neglect. There is no express requirement to avoid breaches of the ECHR included.
4. We suggest the following possible paths to amending the draft Bill to protect the interests of disabled adults in England and Wales:
a. Retaining the relevant social care duties but amending their application so that local authorities are only required to implement them as far as reasonably practicable. Where the draft Bill says the local authority does not have to comply with a duty, the new drafting would say that the local authority has to comply with the duty only to the extent reasonably practicable. The ‘reasonably practicable’ rider would not apply where there were anticipated ECHR breaches.
b. Alternatively, requiring the local authority, before treating the relevant social care provisions as disapplied, to be satisfied that compliance with the duties is incompatible with either compliance with other statutory duties or with the efficient use of its resources.
c. In any event, adding an express requirement to carry out an assessment to verify whether there would be any ECHR breach. This would most likely be implied as a matter of law on the basis of the current drafting, but it would be clearer for local authorities for it to be spelled out on the face of the legislation – the current draft requires local authorities to be satisfied there would be no ECHR breach but says they have no duty to assess any individual’s needs, which would be the only way to ascertain this.
Jenni Richards KC, Victoria Butler-Cole KC, Sian Davies – 39 Essex Chambers
Jonathan Auburn, Joanne Clement – 11KBW
Steve Broach – Monckton Chambers