Social Welfare Update: How the Coronavirus Act affects migrants entitled to adult social care

Section 15 and Schedule 12 of the Coronavirus Act 2020 may affect adult migrants with care and support needs and migrant children leaving care. It gives local authorities the option not to comply with key legal duties if they are unable to do so due to the effects of Coronavirus. In England, local authorities are now only under a duty to meet an adult's (or carer’s) needs for care and support if ‘the authority considers that it is necessary to meet those needs for the purpose of avoiding a breach of the adult’s [rights under the European Convention on Human Rights (ECHR)]’ (Sch 12 paras 4 and 6).

Adult social care

Normally, under section 9 of the Care Act 2014, if it appears that an adult may have needs for care and support, the local authority must assess them to ascertain what those needs are. This is a low threshold that applies irrespective of the person’s immigration status.

Schedule 12 removes this duty to assess, along with several other core Care Act duties such as the requirement to determine whether a person has ‘eligible’ care and support needs and to prepare care and support plans unless this would amount to a breach of their ECHR rights.

But the accompanying guidance , as well as general public law principles, makes clear that there cannot be blanket refusals. The Care Act Easements, Guidance for Local Authorities of 1st April 2020 at Part 6 details specific decision-making steps that a local authority must take before opting into the lesser duties, including involvement with the Director of Adult Social Services and the local NHS. Local authorities will need to justify in each case why they are unable to exercise their usual duties.

Annex A of the guidance states:

“The Coronavirus Act does not give authority to block, restrict or withdraw whole services. It enables Local Authorities to make and apply person-centred decisions about who is most in need of care, and who might need to have care and support temporarily reduced or withdrawn in order to make sure those with highest need are prioritised.

Such decisions... should be taken only where demand pressures and availability of staff in the coming period mean that the full range of services under the Care Act can no longer be delivered.”

Therefore, in deciding not to exercise the duty to assess in accordance with section 9 (and other duties) local authorities, “should still assess people’s social care and support needs... and should make a written record of this assessment”. The guidance also says that “It is crucial that Local Authorities are able to evidence their decision, demonstrate their professional judgement[,] apply the Ethical Framework for Adult Social Care, and where necessary, record that they have considered the Convention Rights.”

Therefore, whilst the assessment will not have to comply with the requirements under section 9, where the local authority cannot comply there will need to be an assessment nonetheless. That assessment will need to include consideration of whether there would be a human rights breach taking into account the impact of Covid-19, before refusing to act. There will be a need to involve the affected person and their carer.

Importantly, these changes are retrospective, meaning that this may affect clients’ existing care and support plans. For example, a local authority could decide that a client no longer needs as much assistance with their care, and could reduce the number of hours provided per week as part of their care package. However, this should not be done without the individual person’s involvement in the process under section 27 (3) of the Care Act 2014 (which remains unchanged).

How this will affect migrants with NRPF ?

Where Schedule 3 of the Nationality, Immigration and Asylum Act 2002 applies, support must be withheld unless the human rights assessment finds that a breach of Convention rights will otherwise occur.

An assessment should be carried out (or proper justification given as to why the duty cannot be complied with in accordance with the principles set out above). This remains subject to the restriction under s.21 of the Care Act 2014, which applies where- if a client has no recourse to public funds- the needs arise solely from destitution or the effects of destitution.  If there are needs for care and support which cannot be met the local authority should then consider the impact of not meeting the eligible needs for care and support pursuant to s.18 of the CA 2014, and assess whether the consequence would be a breach of their Convention rights.

Therefore, the focus will remain on establishing a breach of human rights arising as a result of lack of provision of care and support.

Considerations for human rights assessments

Whilst there is no duty to provide accommodation during a public health emergency, clearly the risk to health for someone destitute who has no access to public funds might mean that accommodation would be necessary to avoid inhuman and degrading treatment contrary to Article 3 ECHR. However, it is well-established that accommodation is not, in itself, a need for care and support under the CA 2014 (R (GS) v Camden London Borough Council [2016] EWHC 1762 (Admin). However, it may be necessary for the effective delivery of a need.

The case of R (Limbuela) v Secretary of State for the Home Department [2005] UKHL 66 is the leading authority on when Article 3 requires the provision of support.

In GS (which cited Limbuela v Secretary of State for the Home Department [2005] UKHL 66) the meaning of an "imminent prospect of serious suffering caused or materially aggravated by the refusal" to meet a "looked-after need" was considered. The court should ask itself whether:

• the applicant had no means and no alternative sources of support, unable to support themselves and denied the most basic necessities of life;
• it appeared on a fair and objective assessment that they face an imminent prospect of serious suffering caused or materially aggravated by the lack of basic necessities.

In R (Aburas) v London Borough of Southwark [2019] EWHC 2754 (Admin) the High Court held that where an individual had non-eligible care and support needs under the CA 2014 then the local authority should use its power under section 19 of the CA 2014 (see §22 and §40) to meet those needs if a failure to do so would breach Art 3 (or possibly other Convention rights).

Existing Article 8 case law shows that the threshold for establishing a breach will be high. But the law may develop in light of the likely severity of the ongoing impact of the lack of care and support on a person’s dignity and family life during the pandemic.

Articles 2 may also become more relevant. The right to life must be protected by the state by taking positive steps to prevent a risk of (avoidable) death: see Osman v UK (application no. 23452/94). 

Ultimately, the assessment will be fact-sensitive and it remains to be seen how the pandemic will affect the development of the caselaw.

Alternative routes to support

Alternatively, if a client is not eligible for care and support under the Care Act 2014 local authorities may have to accommodate those who are excluded from the Care Act 2014 under  section 1 of the Localism Act 2011. However, this route will be difficult given that in R (AR) v London Borough of Hammersmith and Fulham [2018] EWHC 3453 (Admin) it was held that the LA 2011 imposed a prohibition on the provision of accommodation not restricted to that under the Housing Act 1996. Similarly, in Aburas, it was held that s1 of LA 2011 does not allow a local authority to meet a need for accommodation only or even a ‘looked after need’.  However, given the combination of the restrictions on movement by The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, the risk to public health and the heightened risk of breach of ECHR rights and the Equality Act 2010 in this context, this approach may have to be revisited.

Where a person is not eligible for support from a local authority under the CA 2014 (or the Localism Act 2011), other duties continue to apply. For example:

Accessing information and advice provided by local authorities pursuant to section 4 of the CA 2014.

Asylum Support accommodation under paragraph 9 of Schedule 10 to the IAA 2016 or sections 4 and 95 of the IAA 1999.

Children

Paragraph 15 of Schedule 12 suspends duties which are owed towards some children transitioning to adult care:

A local authority does not have to comply with any duties imposed by—

• section 2A(2) to (4) or (6) of the Chronically Sick and Disabled Persons Act 1970 (welfare services: transition for children to adult care and support), or
• section 17ZH(2) to (4) or (6) of the Children Act 1989 (section 17 services: transition for children to adult care and support).

Guidance from the Department of Education states that:

“…Local authorities should continue to do their best to meet statutory duties such as providing personal advisers to care leavers and preparing or reviewing pathway plans. We do recognise the additional pressure local authorities are under, and if they need to alter the support they are able to offer care leavers during this period, they should assess their needs and prioritise the most vulnerable.”

Duties towards unaccompanied asylum seeking children and disabled children remain unchanged and other children (and families) receiving support and care from the local authority (for example under sections 17 and 20 of the Children Act 1989) remain unaffected. This is despite the guidance mentioning, in the context of children’s social care, that “we accept that local authorities will struggle to meet some of their statutory duties at the moment”. There is separate guidance in respect of vulnerable children (which includes those supported under s17): Guidance.