Professor Jean McHale and Dr Laura Noszlopy
Although all aspects of our lives were impacted by the COVID-19 pandemic, adult social care was hit particularly hard. The news headlines focused on the tragic loss of life caused by the rapid discharge of patients from hospitals into care homes without being subject to testing or a period of segregation. The separation of individuals from loved ones due to visiting restrictions in care homes had a devastating impact on health and well-being. The pandemic had however other perhaps less visible impacts on both those drawing upon care and support services and on millions of unpaid carers.
Our new book – Adult Social Care Law and Policy: Lessons from the Pandemic – provides a detailed socio-legal analysis of adult social care law and policy in England both before and during the pandemic.[1] It explores tensions between legislation, policy, and practice in what was an already under-resourced and overstretched sector. It situates the events of the COVID-19 pandemic in the context of the foundational theoretical paradigms which underpin this area – exploring concepts of care, human rights, vulnerability, and relationality – and the structure and operation of adult social care law in England. It then critically examines the history of pandemic planning in relation to adult social care in England from the 2000s onwards, setting this in the context of the Public Health Act 1984 and the Civil Contingencies Act 2004. It demonstrates how successive pandemic preparedness planning exercises, including major cross-agency simulations such as Exercise Cygnus (2016)[2], identified the need to build in specific provisions or “easements” to enable departure from certain health and social care powers and duties.
As we set out in the book, at the outset of the COVID-19 pandemic the Government introduced legislative measures which would enable local authorities in England to “ease” certain adult social care powers and duties included in the Care Act 2014. This included measures introduced under the Coronavirus Act 2020 such as simplifying Care Act assessments and reviews, postponing financial assessments; prioritisation of provision of adult social care was also made- subject to a “floor” of being compliant with the provisions of the European Convention of Human Rights.[3] These formal statutory measures – described in the accompanying Guidance, though not in the Act itself, as “easements” – were only utilised across a small number of local authorities nationally. The largest concentration of such authorities (5 of the 8 across England) were in the West Midlands. The powers were only used by these local authorities for a few weeks in the Spring – Summer of 2020. While the powers remained available until Summer 2021, they were not used again. We take the West Midlands cluster as a case study, drawing upon an extensive review of local authority minutes across “easement” councils and those which did not formally implement easements. As part of our research[4] we also undertook a series of semi-structured interviews involving stakeholders at both local and national levels; these included local authority directors of adult social services, principal social workers, resilience leads, third sector representatives, and representatives from the Local Government and Social Care Ombudsman, Healthwatch, and members of the Association of the Directors of Adult Social Services and the British Association of Social Workers.
There is research evidence, both regionally and more broadly, that the steps taken by local authorities both during the period in which formal “Care Act” easements were an option and subsequently that demonstrates that it was not “business as usual” in social care provision or processes. During the formal easements period, changes made in practice by local authorities in relation to adult social care services did not noticeably differ between formal easement local authorities and those that maintained that they had not activated easements[5]. Subsequently in Winter 2020 and 2021 it was clear that local authorities remained under considerable pressure, with ongoing changes to normal service delivery. It was suggested that some of these changes were being categorised as using certain inbuilt “flexibilities” within the Care Act 2014.[6] During this period considerable concerns were expressed both by our interviewees, and far more broadly by campaigners and disabled people’s organisations, across England, about the short and long-term impacts of these “easements” and operational changes on a range of adult social care activities – from assessments of care and support need, to service provision. There was real concern that these widespread changes in approach would ultimately lead to an acceptance of “lack and less” in service provision.[7]
Just before our book was published in January 2025, the UK Government announced that it would be holding a major UK wide pandemic preparedness exercise in September 2025. It stated that
The national pandemic exercise is the first of its kind in nearly a decade and is set to be the biggest in UK history. It will test the country’s capabilities, plans, protocols and procedures in the event of another major pandemic.[8]
This was prompted by the publication in Summer 2024 of the Report of Module 1 of the UK Covid-19 Inquiry report.[9] As part of the planning process the Government has announced that the Cabinet Office and the Office for National Statistics has produced a “risk vulnerability tool.” It stated that
The tool creates a map of the UK for different risks that we face and shows where there are vulnerable groups who might be disproportionately impacted. Vulnerable groups are identified by data including age, disability, or whether someone is receiving care.[10]
At the time of writing, details regarding the new “risk vulnerability tool” are not available. Further clarification as to what the nature of “vulnerability” in this context will be important, as will transparency about the data which was included in the tool’s development.
While developments to address pandemic preparedness are important and in principle to be welcomed, our new monograph argues that there is still much to be done. It sets out a series of the lessons to be learnt for pandemic planning in relation to adult social care services specifically and adult social care services in general. It is critical that such planning is robust, transparent, joined up, and responsive to fundamental rights and individual well-being.
[1] https://bristoluniversitypress.co.uk/adult-social-care-law-and-policy
[2] Public Health England Exercise Cygnus Report. Tier One Command Post Exercise Pandemic Influenza – 18 to 20 October 2016 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/927770/exercise-cygnus-report.pdf.
[3] Section 15 and Schedule 12 Coronavirus Act 2020.
[4] We gratefully acknowledge the funding support of ESRC COVID-19 rapid response grant: ES/V015486/1.
[5] See discussion in chapters 5 and 6of Jean V. McHale and Laura Noszlopy Adult Social Care Law and Policy: Lessons from the Pandemic
[6] See discussion in Chapter 6 of Jean V. McHale and Laura Noszlopy Adult Social Care Law and Policy: Lessons from the Pandemic.
[7] See discussion in Chapter 6 of Jean V. McHale and Laura Noszlopy Adult Social Care Law and Policy: Lessons from the Pandemic
[8] https://www.gov.uk/government/news/largest-ever-national-pandemic-response-exercise-to-strengthen-against-future-threats
[9] UK Covid-19 Inquiry, Module 1: The resilience and preparedness of the United Kingdom: A Report by the Rt Hon Baroness Hallett DBE, Chair of the Covid-19 Inquiry, 18 July 2024, HC 18
[10] https://www.gov.uk/government/news/largest-ever-national-pandemic-response-exercise-to-strengthen-against-future-threats