Julie Morgan MS, Deputy Minister for Health and Social Services Welsh Government 5Th Floor Tŷ Hywel Cardiff Bay CF99 1NA
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Julie Morgan MS, Deputy Minister for Health and Social Services Welsh Government 5th Floor Tŷ Hywel Cardiff Bay CF99 1NA Letter sent via email: [email protected] 30th October 2020 Dear Julie, Re: Coronavirus Act 2020 and Social Care in Wales I welcome your rapid review of the Part 2, Schedule 12 provisions of the Coronavirus Act 2020 which seek to modify certain duties under the Social Services and Well- being (Wales) 2014. Legislation that removes the rights of older and disabled people should have no place in Wales. It must be repealed to ensure that the rights of older and disabled people who need care and support are protected now and, in the months ahead. In my evidence to the Equality, Local Government and Communities Committee’s inquiry into COVID-19 and its impact on matters relating to Committee’s remit, I called for these provisions in the Coronavirus Act 2020 to be repealed to ensure that older people’s rights were protected. The Committee’s report, Into sharp relief: inequality and the pandemic, highlighted the inequality felt by older people in relation to the response to the pandemic from across public bodies, including that the fulfilment of their care and support needs were seen as, and continue to be seen as, non-essential. The Committee was clear in its recommendation that the Welsh Government take action to repeal the relevant provisions of the Coronavirus 2020 Act. Removing an individual’s legal right to have their eligible needs for care and support met is not acceptable. Such rights are more important now than ever. The ‘relaxation’ or ‘modification’ of legal rights under the 2014 Act disproportionately impacts on older and disabled people, particularly those who are less able to pay for their own care and support. Measures such as the Coronavirus Act 2020 were made quickly, without full consultation or the necessary impact assessments at the beginning of the Covid-19 pandemic. Whilst limits to rights and civil liberties are understandable during a national health crisis, they must always be proportionate and time bound. An indefinite limitation of rights to social care would not be a proportionate response for a nation that fundamentally believes in human rights and individual rights. Despite the Schedule 12 provisions not being formally enacted in Wales there are questions about whether they are having an effect on people’s rights by their very existence. Through my engagement with older people, I have been made aware of some long delays in assessments, the inability to access any form of respite, as well as people being discharged from hospital without an appropriate care package. Older people are experiencing this at a time when their usual network of informal support may have been lost, leaving many older people to struggle to cope, especially those who provide care for their loved ones. To severely ration the provision of care and support to only those in need of protection from abuse or neglect is an important but low baseline for the provision of social care. The removal of the duty to conduct care and support assessments may also serve to be counterproductive, with the potential for local authorities to fail to identify priority cases as a result. The lack of duty to asses may hide cases of abuse, reducing a local authority’s ability to protect those at risk of abuse and neglect and comply with their safeguarding duties under the 2014 Act (which remain unchanged by the Coronavirus Act 2020 modifications). We are in unprecedented times and any changes that seek to remove the rights of older people must be proportionate and well-evidenced. A law that seeks to modify rights under the 2014 Act does not in my view meet these tests for the reasons I have outlined above. Instead, such legislation, if allowed to remain on the statute book, could further increase the inequalities experienced by older people in Wales. As we go into the winter months, it will be even more vital to ensure that older people get the care and support they need. To remove or limit their legal rights to accessing social care – which for many people will remove their ability to live independently – is unacceptable. Removing the Schedule 12 provisions under the Coronavirus Act would be a positive statement from Welsh Government about its support for older people’s rights and one which I would fully endorse. Further details on my response to this rapid review is attached in Annex 1. Yours sincerely, Heléna Herklots CBE Older People’s Commissioner for Wales Annex 1 – Consultation Response Form Rapid Engagement on the Retention or Suspension of section 15 of, and Part 2 to Schedule 12 to, the Coronavirus Act 2020. Please use this form to capture your feedback and evidence. Please send responses to [email protected] by 0900hrs on Monday 2 November 2020. Do you support the retention or suspension of the social care provisions of the Coronavirus Act 2020? Please delete as appropriate. I support the retention of the provisions with a further review in 6 months. I support the retention of the provisions with a further review in 3 months. I support the suspension of the provisions. Other (please specify below). The Commissioner supports the repeal of the Schedule 12, Part 2 provisions. However, the provisions should be suspended until they can be repealed. Please explain why you support your chosen option. Legislation that removes the rights of older and disabled people has no place in Wales. It, therefore, must be repealed to ensure that the rights of older and disabled people who need care and support are protected now and, in the months ahead. The Commissioner called for these provisions in the Coronavirus Act 2020 to be repealed in her evidence to the Equality, Local Government and Communities on the impact of Covid-19. This call was repeated by the Committee in their report, Into sharp relief: inequality and the pandemic which called on Welsh Government to take action to repeal the relevant provisions of the Coronavirus 2020 Act. At a time when older people’s rights have been under threat unlike ever before, it is essential that Welsh Government show their commitment to older people through protecting and promoting their rights by repealing Schedule 12. Removing an individual’s legal right to have their eligible needs for care and support met is not acceptable. Such rights are more important now than ever. The ‘relaxation’ or ‘modification’ of legal rights under the Social Services and Well- being (Wales) Act 2014 disproportionately impacts on older and disabled people, particularly those who are less able to pay for their own care and support. As we go into the winter months, it will be even more vital to ensure that older people get the care and support they need. To remove or limit their legal rights to accessing social care – which for many people will remove their ability to live independently – is unacceptable. Such measures as the Coronavirus Act 2020 were made quickly, without full consultation or the necessary impact assessments at the beginning of the Covid- 19 pandemic. Whilst limits to rights and civil liberties are understandable during a national health crisis, they must always be proportionate and time bound. An indefinite limitation of rights to social care would not be a proportionate response for a nation that fundamentally believes in human rights and individual rights. Despite the Schedule 12 provisions not being formally enacted in Wales there are questions about whether they are having an effect on people’s rights by their very existence. Older people have reported some long delays in assessments, the inability to access any form of respite, as well as people being discharged from hospital without an appropriate care package. Older people are experiencing this at a time when their usual network of informal support may have been lost, leaving many older people to struggle to cope, especially those who provide care for their loved ones. To ensure that older people who need care and support have their rights under the 2014 fully upheld and to protect against any further erosion of older people’s rights, the Schedule 12, Part 2 must be repealed. Please share specific evidence in support of your chosen option that you wish Welsh Ministers to take into account. Please see comments above. Please indicate whether your chosen option will have either positive or adverse effects on people including those with protected characteristics? How could these be mitigated? If allowed to remain on the statute book, Schedule 12, Part 2 of the Coronavirus Act 2020 could further increase the inequalities experienced by older people in Wales. As such, repealing this Schedule of the 2020 Act will have a positive impact on older people as a protected group as their rights under the Social Services and Well-being (Wales) Act 2014 will be fully upheld. Older people have been already been disproportionately affected throughout this pandemic, with older people being made to feel as though their lives do not matter. The Equality, Local Government and Communities Committee’s report, Into sharp relief: inequality and the pandemic, highlighted the inequality felt by older people in relation to the response to the pandemic from across public bodies, including that the fulfilment of their care and support needs were seen as, and continue to be seen as, non-essential. Despite the Schedule 12 provisions not being formally enacted in Wales there are questions about whether they are having an effect on people’s rights by their very existence. Older people have reported experiencing some long delays in assessments, the inability to access any form of respite, as well as people being discharged from hospital without an appropriate care package.