Implications of the Coronavirus Bill

The government rushed legislation through Parliament in just 3 days in order to enable government to respond to various issues arising from coronavirus. The government says that the bill enables action in 5 key areas:

  1. increasing the available health and social care workforce – for example, by removing barriers to allow recently retired NHS staff and social workers to return to work (and in Scotland, in addition to retired people, allowing those who are on a career break or are social worker students to become temporary social workers)
  2. easing the burden on frontline staff – by reducing the number of administrative tasks they have to perform, enabling local authorities to prioritise care for people with the most pressing needs, allowing key workers to perform more tasks remotely and with less paperwork, and taking the power to suspend individual port operations
  3. containing and slowing the virus – by reducing unnecessary social contacts, for example through powers over events and gatherings, and strengthening the quarantine powers of police and immigration officers
  4. managing the deceased with respect and dignity – by enabling the death management system to deal with increased demand for its services
  5. supporting people – by allowing them to claim Statutory Sick Pay from day one, and by supporting the food industry to maintain supplies.

The bill has now gone through the full parliamentary process and received Royal Assent.

However there has been a lot of concern around the bill because people say that it goes too far in stripping back rights that disabled people have fought hard to win over the last 30 years. Many disabled members of the House of Lords could not get to the debate. The crossbench disabled peer Baroness (Tanni) Grey-Thompson said that the measures outlined were “draconian” and “life-changing for disabled people”. The story is covered in the news here on DNS, and here on the BBC.

The British Institute of Human Rights give a full briefing on their concerns on the contents of the bill.

At the moment no negative consequences have been reported but it is early days. Real will be happy to talk to anyone who has experienced anything negative because of this. Obviously it depends on how it’s implemented by various statutory bodies.

Letter to our MPs

On the day that the House of Commons were debating the bill (Monday 23 March) Real wrote to both of our MPs: Rushnara Ali (Bethnal Green and Bow) and Apsana Begum (Poplar and Limehouse). Admittedly there wasn’t a lot of time to respond. We received a general response from (presumably the office of) Rushnara Ali. We have not yet heard back from Apsana Begum. This is what we wrote to them:

Dear Apsana and Rushanara

Coronavirus Bill: significant concerns for disabled people

I am writing to ask you to take action to protect the lives of many thousands of Disabled people.  Please raise the issue and if possible table and support the amendments to prevent this from happening. I have consulted with the Chair of the board of Real before writing to you on this topic. Please read the attached briefing before speaking in the Commons this afternoon.

We believe that the #CoronaVirusBill presents a real and present danger to the lives of Disabled people in Tower Hamlets. The government’s plans for Disabled children and adults during the crisis are effectively rolling back 30 years of progress for Disabled people.  They also come after years of chronic under funding of social care which have resulted in a social care system already at breaking point. The government’s plans are to:

  • remove Disabled people’s rights to social care
  • change the duties to educate to meet children’s educational requirements to a ‘reasonable endeavours’ duty
  • severely undermine the civil liberties of Disabled people and erode their rights to support.

I understand this is an unprecedented and extremely challenging situation, but given the already struggling social care system this Bill will almost inevitably leave many thousands of Disabled people without essential support or any rights to request this support. Rolling back our rights is not good for anyone and in the current circumstances will put many lives at risk. It also sends a message to say that it’s okay to look after the majority and forget about the needs and rights of disabled and older people.

Rather than removing Disabled people’s right to social care support the government must instead treat our essential social care service as key infrastructure, alongside the NHS, and as such it must immediately provide the necessary additional funding to keep this vital service running. In addition to funding, additional measures should be entered into, to provide appropriate support to disabled people, their carers and families, to help them cope with social distancing, especially when many rely on the support of carers employed through direct payments, rather than through care agencies.

To explain my reasons for writing to you, please see my understanding of negative social implications of the #CoronaVirusBill on the lives of Disabled people and their families detailed below.  This information was prepared by the barristers who specialise in public law and disability rights.

Real is working with officers in Tower Hamlets Council on the best way of getting critical advice and support to people. My ask for you today is to ensure that the right issues are addressed in Parliament in respect of this bill, and those isolated and excluded people that Real already supports do not become even further left behind because of this terrible health crisis.

We will share that we have written this letter on our website, our social media and to our members

Yours sincerely
Mike Smith

CEO, Real (the user-led organisation of disabled people in Tower Hamlets)

Implications of the Bill for Disabled people 

What does it mean for disabled adults? 
The Bill suspends every duty in the Care Act, 2014, including the duty to meet the eligible needs of disabled people (Section 18) and their carers (Section 20).  Under the #CoronaVirus Bill, Local Authorities will only have to provide care ‘if they consider it necessary’ for the purposes of avoiding a breach of the European Convention of Human Rights (ECHR).  There is no human right to social care or positive obligation under the ECHR to meet care needs.   See assessment from leading lawyers specialising in Social Care here: https://www.39essex.com/the-coronavirus-bill-schedule-11/

Other changes set to be introduced through the #CoronaVirusBill will allow health bodies to delay carrying out an assessment for eligibility for NHS continuing care

What does it mean for disabled children and young people?
Duties for young people transitioning to adult social care have also been suspended.
The Secretary of State for Education will have power to disapply the duty on schools and other institutions to admit a child to a school where they are named on an EHCP.  The Secretary of State will be able to vary provisions of the act, such as the core duty to procure provision set out in an EHCP, so instead of being an absolute duty it becomes a ‘reasonable endeavours’ duty, creating a lesser entitlement for up to two years.

What about the Mental Health Act?
The power to recommend individuals be detained under the Mental Health Act will be implemented using one doctor’s opinion instead of two, making it easier for people to be detained.
The proposed bill will temporarily allow the extension or removal of time limits in mental health legislation which means individuals might be released into the community early, or find themselves detained for longer.
Under section 5, emergency detention for people already in hospital would extend from 72 hours to 120 hours, and nurses’ holding powers would extend from 6 to 12 hours. Under sections 135 and 136, police powers to detain a person found in need of immediate care at a “place of safety” will extend from 24 hours to 36 hours. Under section 35/36, the cap on how long someone can be held in hospital while awaiting a report (currently 12 weeks) will be lifted.

What about the rights of disabled people?
Local authorities will have a duty to uphold disabled people’s human rights under the European Convention on Human Rights, BUT the threshold for a breach, in terms of not providing care and support is high, which means that disabled people will be left without care and support. Lack of care and support will have a significant impact on disabled people’s well-being, but may not be considered to reach the threshold for their human rights to have been breached – they will NOT have a right to care and support.

Sources of information
Watch @stevebroach, Public Law Barrister talk about the impact of the Bill here: https://www.specialneedsjungle.com/steve-broach-public-law-barrister-on-the-coronavirus-bills-implications-for-disabled-children/
Read this Twitter thread for more information: https://twitter.com/JamieBurton29/status/1240781535340568577
Statement from National User Survivor Network: https://www.nsun.org.uk/News/covid-19-and-human-rights
Current hashtags: #CoronaVirusBill #CoronavirusBillUK

 

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