1st Report - Unequal impact? Coronavirus, disability and access to services: interim Report on temporary provisions in the Coronavirus Act

We were unable properly to scrutinise the effects of Care Act easements on disabled people because there are no published data, for example on the number and categories of people, or the types of social care services, affected. The Government must demonstrate that it is keeping local authorities’ use of Care Act easements under thorough review and allow for proper scrutiny of data on the effects on disabled people. We welcome the Government’s commitment to publishing Think Local Act Personal’s report on the effects as part of the six-monthly review process. We urge the Government to ensure the report and all the accompanying data are published before the forthcoming six-monthly review and vote in the House, and each subsequent six- monthly review debate and vote, on temporary Coronavirus Act provisions, so that they can be used to inform the debates.

Care Act easements are available as a last resort for local authorities, to help them prioritise care and support for people with higher levels of need, should resources become overstretched to a dangerous degree, potentially threatening life. We were concerned about evidence from the Local Government Association that some local authorities had taken a pre-emptive approach, triggering an easement in case it became necessary. We were disappointed to hear that Ministers were unaware that this approach had been taken. The Minister for Disabled People was clear that it was against the Government’s guidance.

We acknowledge that steps have been taken towards greater transparency in the Care Act easement process, notably the publication of an updated list of local authorities using the easements; however, we believe this falls short of a proportionate level of transparency and accountability. The current process is not stringent enough to provide confidence that easements cannot be triggered for anything other than severe demand or resource issues caused by the pandemic. As such, it is impossible to scrutinise whether easements are being mis-used. We recommend guidance to local authorities on use of Care Act easements be updated to state that local authorities should keep a record of the reasons for their decisions and the anticipated effects on people and services, as set out in the current guidance but omitting the phrase “where possible”. Local authorities should in all circumstances keep such a record. We recommend the guidance be updated to state that local authorities should publish the information contained in the record prior to notification to the Department for Health and Social Care. We further recommend the guidance be updated to state explicitly that pre-emptive triggering of easements prior to publication of the decision record would be a misuse of the provisions, leaving local authorities open to legal challenge.

The coronavirus pandemic has highlighted and exacerbated pre-existing systemic problems in the social care system, including urgent need for: a more sustainable funding solution; resolution of workforce issues, including low pay, poor progression and high staff turnover; and much closer integration with health services. The pandemic has demonstrated the need to place a much greater value on social care 24 Unequal impact? Coronavirus, disability and access to services: interim Report on temporary provisions in the Coronavirus Act and its workforce. None of these issues are new, but they have been brought into sharp focus by the pandemic and require urgent attention. We intend to return to these issues in our main Report.

There is broad agreement that the Coronavirus Act’s Care Act easement provisions should be curtailed as soon as possible. They represent a substantial raising of the threshold at which disabled people’s care and support needs must be met. This regression of disabled people’s rights must not be allowed to become the norm.

Had the pandemic been more clearly under control, we would have recommended repeal of the Care Act easements at the first six-monthly review. However, the current precarious state of the pandemic, combined with the fragility of the social care system, makes repeal a finely balanced judgement call. Throughout the peak of the pandemic earlier this year, only around five per cent of English local authorities triggered easements to their Care Act duties, and none have been relying on them since early July. There is, however, considerable uncertainty about how the virus might progress through the autumn and winter and what the effects might be on local authorities’ capacity to cope with social care demand.

On balance, and subject to our other recommendations to tighten guidance and increase transparency being implemented, we accept that the Care Act easement provisions may need to remain in place over the winter period. The Government should keep the need for the Care Act easement provisions under constant review over the autumn and winter. It should use its power to suspend them immediately should it become clear that a second peak of the virus has been avoided. Should the progress of the pandemic remain stable or improve, we recommend the provisions be repealed before or at the second six-monthly review in Spring 2021. We recommend the Government state publicly that it intends to take this approach. This would provide greater clarity, and some reassurance, to disabled people and be an important marker of the Government’s determination to fully restore disabled people’s absolute rights to the care and support they need. (Paragraph 35) Mental Health Act

The Coronavirus Act’s emergency changes to the Mental Health Act 1983 were intended for use as a last resort should mental health staff resources be depleted by the pandemic to the extent that people needing assessment or detention in hospital become a risk to themselves or others. These provisions have not come into force in England because, through the peak of the pandemic earlier this year and to date, existing processes have proved sufficiently robust and adaptable to make them unnecessary. In these circumstances, Ministers have the power to suspend the measures and, if absolutely necessary, reinstate them at a later date. While we acknowledge that the current precarious stage of the pandemic means that the future is uncertain, evidence suggests the measures are unlikely to be needed. Furthermore, relaxing requirements for authorising people’s detention in hospital and extending or suspending time limits for detention goes directly against the grain of much- needed Mental Health Act reform. This is intended to address inequalities in the existing system, as set out in the final report of the Independent Review of the Mental Unequal impact? Coronavirus, disability and access to services: interim Report on temporary provisions in the Coronavirus Act 25 Health Act 1983 in December 2018. This adds impetus to the call for the emergency powers to be curtailed as soon as possible. They should not be left available “just in case”. We recommend the Government should, as a minimum, if not repeal the provisions, use its power to suspend the Mental Health Act provisions in England by Regulations and only reinstate them should mental health service providers call for their reintroduction. This would send an important signal of the Government’s support for a more just and equitable system, while leaving open the possibility of reinstating emergency measures should they be needed. Should the progress of the pandemic remain stable or improve, we recommend repeal of the measures

Assessing needs and securing provision for children and young people meeting the threshold for EHC Plans was an extreme challenge for local authorities during the peak of the pandemic earlier this year. Local authorities could not have been expected to meet their EHC Plan duties fully in these circumstances; some flexibility was needed. It is less clear whether it was necessary for the relaxed “reasonable endeavours” duty to remain in place until the end of July, leaving many children and young people with special educational needs and disabilities with very little or no support for three months. We recommend the Department review the information- gathering and decision-making processes in place with a view to making a faster decision to return to full EHC Plan duties, should flexibilities be introduced again.

The “reasonable endeavours” duty in relation to Education, Health and Care (EHC) Plans is a nebulous concept, which has been inconsistently interpreted and poorly understood by some local authorities, whose support for children and young people with special educational needs and disabilities fell far short of an acceptable standard after the issuing of national section 42 notices from May to July. There were extreme examples of local authorities failing to communicate at all with children and young people and their families. This is clearly unacceptable. We understand and support the intention to provide local authorities with flexibility to adapt to local circumstances during the pandemic, but they must not be allowed to interpret a relaxed duty as leeway to do nothing to support children and young people’s needs.

If the Secretary of State for Education’s power to invoke the “reasonable endeavours” duty in relation to EHC Plans is to remain in place, we recommend the Department for Education update its guidance to local authorities to include the factors which must be considered in deciding how the relaxed duty can best be fulfilled. The guidance should include a set of minimum standards and a range of examples of good practice in supporting children and young people with special educational needs and disabilities (SEND) when resources are stretched by the pandemic. We further recommend that, should flexibilities in EHC Plan duties become necessary again, notices be issued on a local basis only, in direct response to local effects of the pandemic, instead of the blanket, national approach taken earlier this year. We further recommend that 26 Unequal impact? Coronavirus, disability and access to services: interim Report on temporary provisions in the Coronavirus Act guidance to local authorities operating EHC assessments and Plans under reasonable endeavours be updated to state that they should publish information about what this will mean in practice for children and young people with SEND and the minimum level of provision they expect to be able to provide. We believe the time is right for this change of approach. It would be in line with the more local approach to coronavirus-related restrictions since the end of national lockdown and would offer some reassurance to children and young people with SEND and their families that any changes to support will only occur when strictly necessary as a result of the pandemic.

At the time of writing, the Special Educational Needs and Disability (Coronavirus) (Amendment) Regulations 2020, which temporarily modify the time limits in relation to EHC assessment and Plans, were due to expire on 25 September. This will add further pressure to local authorities already facing the huge challenge of dealing with an inevitable backlog of cases. The Department must set out a clear national strategy for managing the backlog of EHC assessments and Plans, to ensure children and young people with special educational needs and disabilities get the support they need, within the statutory timescales. It should also set out in guidance to local authorities clear criteria for prioritising EHC cases. (Paragraph 60) Parliamentary review

We consider the section 98 arrangements for six-monthly parliamentary review of temporary Coronavirus Act provisions unsatisfactory. The Act prescribes a binary “take all or leave all” vote, which will present MPs with no real choice over provisions which have clear and obvious equality impacts on their disabled constituents and which, they may take the view, are no longer justified, either this autumn or later in the two-year lifetime of the Act. Continuing these provisions has the potential to further restrict or curtail important and hard-won rights relied upon by disabled people and deserves proper consideration, separately from the statutory vote. Arranging for the House to express its view on temporary provisions with clear and obvious implications for disabled people would be an opportunity for the Government to demonstrate its commitment to equality. The Government should not only to give MPs the chance to debate the temporary provisions discussed in this Report but should also make arrangements to test, separately from the statutory vote required by section 98 of the Coronavirus Act, the view of the whole House on the merits of continuing different, individual provisions for a further six months and each subsequent six-month period until the sunset provision of the Act. Arrangements should be made for this to happen before the second six-monthly review in spring