Rule of law and COVID-19: the need for clarity, certainty, transparency and coordination

Joelle Grogan highlights some points of concern as regards the UK’s response to the pandemic, and advocates areas in which both governance and policy can be tangibly improved.

The promised six-month review of the Coronavirus Act 2020 has been completed, allowing for the extension of powers under the Act, just as a new three-tier system has been introduced in England, the Welsh Assembly adopted a travel ban from high-infection areas in other parts of the UK, highlighting a complicating factor in evaluation of governmental response to COVID-19 which is the divergence of regimes across the UK, as health policy is a devolved competence.

The scale, scope and impact of regulations limiting private and commercial life is unprecedented, and has raised numerous democratic, rule of law, and human rights concerns. There is no perfect legislative or policy response to the pandemic. There are, however, good practices and principles which can guide action and lead to a more effective response which have been observable globally. Central to any response to the pandemic is legal certainty, transparency in decision-making, clarity in communication, an early reaction, and coordinated strategy. Democratic oversight in the form of parliamentary scrutiny and external engagement can lead to better quality law and policy when governments adapt to criticism.

The Coronavirus Act 2020 notably did not give or extend specific lockdown powers to government. COVID-19 regulations in England have been introduced by government under the Public Health (Control of Disease) Act 1984. The Coronavirus Act 2020 did, however, extend powers to quarantine as well as to restrict or close premises as well as the power to prohibit any gatherings to Ministers in each of the UK’s constitutive governments. The six-month Parliament review was a concession accepted by government, against criticism of the length of the sunset clause (two years, with the option for Parliament-approved six-month extensions) in the Act. It allowed for a debate on the expiry of the Act. Despite many criticisms of both the framework of the act, and the use of powers under it, the vote in the House of Commons was overwhelmingly in favour.

However, six months from the introduction of the Coronavirus Act (and nearly nine months from the declaration of a global health emergency), Parliament is operational and far more is known about viral transmission, yet the inadequacy of parliamentary scrutiny remains. An overwhelming majority of the COVID-19 measures came into force either the same day, or within a day, of being introduced by government and without scrutiny (albeit subject to the affirmative procedure which requires parliamentary approval within 28 days). There is little justification where the underlying legislation allows only for measures to be introduced without parliamentary approval where the urgency demands it to be necessary. This is all the more concerning where, for example, self-isolation rules with fines up to £10,000 for breach were applicable within hours of being introduced.

A significant number of regulations have been announced first in press conferences, or to journalists rather than first before Parliament despite repeated censure by the Speaker and the opposition. Backbench MPs have also increasingly criticised the government for side-lining Parliament during the pandemic, and called for greater oversight and control over the use of powers under the Coronavirus Act 2020 and the Public Health (Control of Disease) Act 1984. The myriad of regulations introduced under these acts (and with very limited scrutiny) has translated into hypertrophied executive dominance but not necessarily better governance. Legal uncertainty has characterised much of the government’s COVID-19 response; the lack of clarity and the absence of long-term strategizing has also often served to undermine policy and compliance.

While lack of clarity was a point of criticism in a parliamentary committee report on the government’s COVID-19 response, a further point of criticism was that there were only a six-month reviews, and there was little provision for more frequent and thematic debates on individual measures. Of course the executive is typically best placed to respond quickly in the initial phases of emergency, but it is unjustifiable to continue doing so without scrutiny where pandemic management has moved from reaction to control. Beyond the point of legality and democratic legitimation of government action (Parliament, not government, is sovereign after all), there are clear and positive practical effects of having more and greater oversight. Debate and scrutiny allow for the identification and remedy of confusion, contradiction, or inconsistencies in the rules. This is even more pressing when the individual impact and restriction of personal liberties is so extreme. In good practice observed internationally, states which learn from error, engage with criticism, and adapt have higher levels of compliance and fare better.

Following initial responses to emergency, it is good practice for governments to use all available information to produce guides which communicate to individuals and businesses what is expected of them; what restrictions apply and do not apply; and when and under what circumstances or conditions the rules will change. This can help effective short- and long-term planning both for the government and for the public. The introduction of a new three-tier system in England (in force two days after being introduced) to replace the regime of local lockdown regulations operating since July 2020 is helpful and a positive step towards a coherent strategy. However, ongoing uncertainty as to what it means in practice, particularly in the complicated underlying regime of exceptions (and potentially exceptions to exceptions), compounded by uncertainty regarding the basis upon which areas will be moved from one tier to the next, risks a medium to high (or very high) level of non-compliance.

A foundation of public trust in government action, and corresponding compliance with COVID-19 measures, is transparency in decision-making. It should include publishing the rationale which underlies the introduction of restrictive measures (or for not introducing restrictive conditions against the advice of SAGE) is important for justifying the positions taken. Simply, it is far easier to follow a rule, when the reasoning underlying that rule is clear. The absence of information invites speculation and false assumptions. There is a clear need for a transparent process by which, for example, areas in England will be moved from one tier to another beyond this being ‘subject to review’ based on ‘a rise in transmission’.

Beyond clarity, certainty, and transparency in legal measures and policies, a final aspect underlining the most effective and sustainable long-term policy in tackling COVID is coordination. This is not as only between central government, devolved administrations, and regional authorities, but beyond that to the international sphere. As all states face a common challenge, there is a wealth of comparative experience from which to draw the best practices in tackling a global health emergency.


Note: the above is based on the recommendations within J Grogan and N Weinberg, ‘Principles to Uphold the Rule of Law and Good Governance in a Public Health Emergency’ RECONNECT Policy Brief.

About the Author

Joelle Grogan is a Senior Lecturer in law at Middlesex

https://blogs.lse.ac.uk/politicsandpolicy/rule-of-law-and-covid19/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+LSEGeneralElectionBlog+%28General+Election+2015%29

The Conservatives are shrinking the state – to make room for money and privilege

Boris Johnson’s talk of restoring sovereignty is a lie. He is handing democratic power to economic elites, not the people. George Monbiot writes in the Guardian 14th October 2020.

The question that divides left from right should no longer be “how big is the state?”, but “to whom should its powers be devolved?”. In his conference speech last week, Boris Johnson recited the standard Tory mantra: “The state must stand back and let the private sector get on with it.” But what he will never do is stand back and let the people get on with it.


The Conservative promise to shrink the state was always a con. But it has seldom been as big a lie as it is today. Johnson grabs powers back from parliament with both fists, invoking Henry VIII clauses to prevent MPs from voting on crucial legislation, stitching up trade deals without parliamentary scrutiny, shutting down remote participation, so that MPs who are shielding at home can neither speak nor vote, and shutting down parliament altogether, when it suits him.


He seeks to seize powers from Scotland, Wales and Northern Ireland: the internal market bill appears to enable Westminster to take back control of devolved policies. He imposes the will of central government on local authorities, refusing to listen to mayors and councils while dropping new coronavirus measures on their cities. He claws back powers from the people, curtailing our ability to shape planning decisions; shutting down legal challenges to government policy; using the Coronavirus Act and the covert human intelligence sources bill to grant the police inordinate power over our lives.


His promises to restore sovereignty are lies. While using the language of liberation, he denies power to both people and parliament. He promised to curtail the state, but under his government, the state is bursting back into our lives, breaking down our doors, expanding its powers while reducing ours.


Instead, he gives power away to a thing he calls “the market”, which is a euphemism for the power of private money. This power is concentrated in a small number of hands. When Johnson talks of standing back and letting the private sector get on with it, he means that democratic power is being surrendered to oligarchs.


Under the Conservatives, the state shrinks only in one direction: to make room for money and privilege. It grants lucrative private contracts to favoured companies without advertisement or competitive tendering. It gifts crucial arms of the NHS to failed consultants and service companies. It replaces competent, professional civil servants with incompetent corporate executives.


We need a state that is strong in some respects. We need a robust economic safety net, excellent public services and powerful public protections. But much of what the state imposes are decisions we could better make ourselves. No Conservative government has shown any interest in devolving genuine power to the people, by enabling, for example, a constitutional convention, participatory budgeting, community development, the democratisation of the planning system or any other meaningful role in decision-making during the five years between elections.


The Labour party’s interest in these questions is scarcely more advanced. The 2019 manifesto talked of “urgent steps to refresh our democracy”. It called for a constitutional convention and the decentralisation of power. But these policies were scarcely more than notional: they lacked sustained support from senior figures and were scarcely heard by voters. During his bid to become Labour leader, Keir Starmer announced that “we need to end the monopoly of power in Westminster”. He called for “a new constitutional settlement: a large-scale devolution of power and resources”. Since then we’ve heard nothing.


When challenged on its policy vacuum, Labour argues that “the next general election is likely to be four years away … There’s plenty of time to do that work.” But you can’t wait until the manifesto is published to announce a meaningful restoration of power to the people, and expect it to be understood and embraced. The argument needs to be built – and Labour local authorities, by developing powerful examples of participatory politics, need to show how Starmer’s promised new settlement could work. Instead there’s a sense that the parliamentary Labour party still sees its best means of enacting change as seizing a highly centralised system, and using this system’s inordinate powers to its own advantage.


For many years, Labour relied on trade unions for its grassroots dynamism and legitimacy. But while the unions should remain an important force, they can no longer be the primary forum for participatory politics. Even at the height of industrialisation, when vast numbers laboured together in factories and mines, movements based in the workplace could only represent part of the population. Today, when solid jobs have been replaced by dispersed and temporary employment, and many people work from home, the focus of our lives has shifted back to our neighbourhoods. It is here that we should build the new centres of resistance and revival.


Starmer has so far shown little interest in reigniting the movements that almost propelled Labour to power in 2017. But even if Labour wins an election, without a strong grassroots mobilisation it will struggle to change our sclerotised political system. Any radical political project requires a political community, and this needs to be built across years, not months.
The popular desire to take back control is genuine. But it has been cynically co-opted by the government, which has instead passed power from elected bodies to economic elites. The principal task of those who challenge oligarchic politics in any nation is to offer genuine control to the people, relinquishing centralised power and rewilding politics. Yes, the state should stand back. It should stand back for the people, not for the money.


• George Monbiot is a Guardian columnist

https://www.theguardian.com/commentisfree/2020/oct/14/conservatives-state-money-privilege-boris-johnson-power?CMP=Share_iOSApp_Other

What has gone wrong with England’s Covid test-and-trace system?

It was supposed to be ‘world beating’ but experts say it is having only a ‘marginal impact’

Robert Booth Social affairs correspondentPublished: 19:57 Tuesday, 13 October 2020 Follow Robert Booth

When the NHS test-and-trace system was launched in late May, Boris Johnson promised it would help “move the country forward”. We would be able to see our families, go to work and stop the economy crumbling.

In the absence of a vaccine, the prime minister’s “world-beating” system would be worth every penny of the £10bn funding that Rishi Sunak announced in July. The chancellor said it would enable people to carry on normal lives.

Now as pubs are ordered to close, extended families are forced to stop meeting and intensive care beds fill up fast, the government’s Sage scientific advisers have concluded NHS test and trace is not working.

Too few people are getting tested, results are coming back too slowly and not enough people are sticking to the instructions to isolate, they say.

The system “is having a marginal impact on transmission”, as a result, and unless it grows as fast as the epidemic that impact will only wane.

So what’s going wrong?

Over centralised from the start … 

Tasked in spring with rolling out millions of coronavirus tests, the health secretary, Matt Hancock, opted for a centralised system using private firms. The business consultancy, Deloitte, was handed a contract to help run testing through local drive-in and walk-in test sites, with swabs being sent for analysis at a network of national laboratories, many also outsourced. Serco was also handed a deal to run contact tracing, subcontracting work to other firms as well.

The stakes for their success were high. An Imperial College study found if test and trace worked quickly and effectively, the R number could potentially be reduced by up to 26%.

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Local directors of public health knew this from experience of tackling sexually transmitted diseases and food poisoning outbreaks, but their role was limited, leaving many exasperated that they were being cut out.Advertisement

As the system got up and running over the summer, ONS surveys of the virus prevalence suggested NHS test and trace might only be picking up a quarter of actual cases.

In July, one of the system’s senior civil servants, Alex Cooper, admitted privately the system was only identifying 37% of the people “we really should be finding”. The clamour from mayors and local public health officials for a bigger role grew.

Finally this week the government admitted cities and regions should be given help to do more.

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“We’ve always known that there was a need for a local element of test and trace, as a centralised system does not have local expertise and is not able to cut through the harder-to-reach communities,” Andy Street, the Conservative mayor of the West Midlands, told the Guardian this week.

The strain on a the centralised system has been clear. Sarah-Jane Marsh, director of testing at NHS test and trace tweeted last month: “The testing team work on this 18 hours a day, 7 days a week. We recognise the country is depending on us.” She is about to stand down after less than six months in the post.null

Laboratory bottlenecks

Website warnings that no tests were available exposed the testing crisis to the British public on an almost daily basis this summer, especially in September when schools went back.

Dido Harding, the system’s head, said last month the number of people wanting tests was three to four times the number available. National “lighthouse” laboratories in Milton Keynes, Cheshire, Glasgow and Cambridge, had hit capacity.

More than a quarter of people attending 500 local testing centres after being in contact with someone who had tested positive, were simply turned away because they did not have symptoms.

The scale of the task was shown when Harding told MPs around half of the available tests were being used by NHS patients, social care and NHS staff.

Such was the strain that tens of thousands of tests had to be sent for processing abroad.

And the need for testing will only increase.

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Johnson has promised daily testing capacity of 500,000 by the end of this month. On Tuesday it stood at 309,000 .

Already a long way off from the target, the system will come under greater pressure over the coming weeks. On Tuesday, the government finally said visitors to care homes could be tested regularly to try and end the isolation caused by their visits to loved ones being banned. There are 400,000 care home residents.

Slow results

New laboratories in Newcastle, Bracknell, Newport and Charnwood should open within weeks and they can’t come soon enough. As far back as May, Sage experts said the speed of results had a significant impact on the reproduction rate of the virus. Turnaround times should be 24 hours or less and it was “essential” this capability was reached by the autumn/winter flu season.

Johnson pledged in on 3 June to “get all [non-postal] tests turned around in 24 hours by the end of June”.

But for the last week of September, the percentage of test results returned within 24 hours in the community testing was no greater than a third. Nearly nine out of 10 Covid-19 tests taken under the system used by care homes in England were returned after 48 hours in September. Kathy Roberts, chair of the Care Providers Alliance, told MPs on Tuesday she doesn’t have confidence in the government’s test-and-trace strategy.

“The percentage of returns is still too low,” she said. “It has improved for people on discharge but not for the workforce.”

Last month Greg Clarke MP, chairman of the Commons science and technology committee, asked Harding if the failure of the testing system was “driving the increase in the pandemic”.

“I strongly refute that the system is failing,” she replied.

Tech problems

The data blunder that caused nearly 16,000 coronavirus cases to go unreported in England last month when they disappeared from an spreadsheet, was not an isolated IT problem. The government’s first attempt to build an app to track infections was abandoned in June after months in development.

A new approach is costing an estimated £36m in development and running costs in the first year. The app allows users to check into venues and receive alerts if they have been close to someone infected, as long as the infected person tells their app. But it has yet to find its feet.

For a while people tested in NHS and PHE settings could not input their results, meaning thousands were being missed. A function which is supposed to alert people when they have been in a place where there has been an outbreak has only been used only a handful of times, despite more than 16 million people downloading the app.

Some employers have also been asking workers to turn the app off. 

Contact tracing

Figures suggest contact tracers working through the national system have been less successful than local council officials. The percentage of people reached and asked to provide details of recent close contacts hit its lowest level since June at the end of September, with performance worsening steadily over the month. It means about 25% of contacts are not reached at all.

There have been embarrassing reports about contact tracers making no calls for days on end, some catching up on Netflix while being paid to do nothing.

By contrast local public health officials, some setting up their own call centres and redeploying environmental health officers and sexual health experts with local knowledge and properly trained in the job, reckon they are tracing close to 100% of contacts.

The difference mattered particularly in north-west England, where the virus took hold this summer and south Asian-heritage communities proved harder to reach. Ministers finally agreed to share real-time data with local authorities in August but only after several councils threatened to break ranks and set up their own locally-run system.

Local health officials complained the centralised system failed to join the dots on linked infections. For example, it might spot 40 cases in one postcode – but wouldn’t quickly grasp that the cluster was linked to a specific workplace, event, or pub.

“Local residents recognise and can relate to their local council, which is not always possible with a national system,” said Ian Hudspeth, chair of the Local Government Association’s community wellbeing board. “Council staff can go to people’s homes to make sure they are aware of what they need to do.”

People struggle to self-isolate

Sage estimates that at least 80% of a case’s contacts need to isolate for the system to work.

Last month, however, it found rates of full self-isolation were below 20% and particularly low among the youngest and the poorest people.

A study stretching from March to August, found only 18% of 1,939 people with symptoms stayed at home and people facing greater hardship were less adherent.

Ability to self-isolate was three times lower in those with incomes less than £20,000 or savings less than £100, according to a third study.

Additional reporting: Josh Halliday

https://www.theguardian.com/world/2020/oct/13/what-has-gone-wrong-with-englands-covid-test-and-trace-system?CMP=Share_iOSApp_Other

A reformer from a bygone era: What the Cummings saga tells us about British governance

Patrick Diamond writes that the Cummings coronavirus row has wider implications for the machinery of British government. These revolve around the status of political advisers and the future of Cummings’s state reform visions.

As the row over Dominic Cummings’s breach of lockdown rules escalates, threatening to engulf the entire Johnson Administration, it is worth reflecting on the implications of the dispute for the future of British governance more generally. The big questions that arise go beyond the details of Mr Cummings’s breach and the fundamental principles of propriety, truth, and integrity in high office. They concern how the machinery of government is likely to develop in the future.

The first implication is what this case tells us about the status of political advisers in British politics. The Code of Conduct for Special Advisers published by the Cabinet Office is clear that the purpose of political advisers is ‘to add a political dimension to the advice and assistance available to Ministers’. According to the official constitutional rationale, special advisers protect the neutrality of civil servants, undertaking tasks of a political nature which – if performed by officials – would undermine their ability to serve future governments of a different political complexion. Civil servants claim to welcome the presence of special advisers who provide knowledge and insight on issues of future policy, while offering steers on the political views of Ministers. The benign interpretation is that the British system of government cultivates a mutually beneficial partnership, a ‘governing marriage’ between Ministers, officials, and political appointees.

Certainly, there have been controversial special advisers before, many of whom were forced to resign because they breached the unwritten rule that political aides must never become the media story – the most pertinent recent examples being Theresa May’s notorious aides, Nick Timothy and Fiona Hill. Yet Timothy and Hill were, by and large, backroom operators who were fired ultimately because their boss was politically weakened in the aftermath of the 2017 general election debacle. Without question, it is an important moment in the development of the British political system that a special adviser such as Dominic Cummings is able to hold their own impromptu press conference in the garden of 10 Downing Street, taking questions from journalists while holding court in front of the world’s media.

Indeed, paragraph 14 of the Special Advisers Code states that, ‘Special advisers must not take public part in political controversy, through any form of statement whether in speeches or letters to the press, or in books, social media, articles or leaflets. They must observe discretion and express comment with moderation, avoiding personal attacks, and would not normally speak in public for their Minister or the Department’. The function of advisers is, ‘to represent the views of their Minister to the media’, rather than to justify their own actions or personal behaviour. In this extraordinary situation, Ministers are being sent onto the airwaves to defend the position of a political adviser. This is a remarkable moment.

The implications of Cummings’s media appearance will be far-reaching. We have reached a critical juncture, constitutionally a point of no return. There is likely to be growing pressure for special advisers to give testimony where they are involved in public controversies, notably to parliamentary select committees. Cummings’s actions will bolster the arguments of those who insist special advisers have a malign impact on the conduct of government, reducing civil servants to the status of ‘passive functionaries’ and politicising public administration. Cummings is a well-known critic of the British civil service. He regards the permanent bureaucracy as slow-moving, unimaginative, cumbersome, detached from seismic shifts in the world of technology and ideas. Cummings’s explicit goal is to ‘drain the swamp’ of the Whitehall bureaucracy, moving towards a ‘them and us’ model where civil servants no longer offer advice, but merely do what Ministers tell them. Civil servants become the implementors of policy rather than the initiators of policy; delivery agents, not ministerial advisers with the capacity to ‘speak truth to power’.

The second implication of the dispute is what the row tells us about the status of the institutional innovator and disrupter in the system of government. It may well be that Cummings’s mission to rewire the British state while radically recasting the Whitehall machinery is dead in the water. His ideas about how to reorganise the state machine might be deemed necessary for an age of disruption, but he will find formidable forces of conservatism in the government machine ranged against him, just at the moment his political capital is depleted badly. One difficulty is that Cummings is attempting to orchestrate change from the centre in 10 Downing Street. In the British system of government, it is departments that usually reign supreme. Departments are the centres of decision-making power, autonomous territories where policy is formulated, budgets are allocated, and implementation is co-ordinated. Even nominally powerful prime ministers with landslide parliamentary majorities such as Margaret Thatcher and Tony Blair discovered that departments have the capacity to thwart the will of the centre.

Another problem is that resistance to fundamental change in the government machine comes not only from civil servants, but Ministers themselves. Away from the highly politicised centre of power in Number 10, Ministers by and large work closely with their officials who they regard as problem-solvers, Machiavellian fixers, loyal courtiers, and expert bureaucrats who know about how to drive through change, navigating the byzantine rituals of Whitehall. The tension is even more acute in a Conservative government, where traditionalists favour the preservation of existing institutions, upholding the long-standing Northcote-Trevelyan principles of impartiality and merit-based appointment. At the beginning of 2020 when Cummings went public with his plan to recruit dozens of ‘weirdo’ data scientists into government supplanting ostensibly ineffectual civil servants, a Cabinet Minister told The Times:‘One of the big problems with [Cummings’s] pull the pin out of the grenade, drop it in the bunker, and see what happens approach is that it is so destabilising…we take several steps backwards before we’ve even started’.

In the world after the pandemic, it is very probable that the debate about state reform in Britain will take a quite different direction to that envisaged by the Cummings’s prospectus. The state is back as an economic actor, and as such, thirty years of antipathy to government as a force for good may be waning. It is public servants who have ensured that furlough wages and benefits are paid on time, while businesses are protected. Discussion will centre on how to restore the capacity of government to tackle major challenges from strategic risks such as future pandemics and climate change, to the long-term implications of the crisis, notably tackling public health inequalities while repurposing institutions. Unquestionably, the overly centralised nature of the British state will come under renewed scrutiny. In this climate, Cummings may well appear a reformer from a bygone era.

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About the Author

Patrick Diamond is Associate Professor of Public Policy at Queen Mary, University of London, and a former Government Special Adviser.

LSE blog

A policy scandal of epic proportions: Why a public inquiry into adult social care and Covid-19 is necessary

Bob Hudson makes the case for an inquiry into the government’s slow response to protecting adult social care settings from the coronavirus pandemic. He outlines the three key issues that such an investigation will need to address and the questions it must answer.

The longer the impact of COVID-19 in the UK has continued, the more the focus of concern has fallen upon adult social care. While the NHS has been relatively protected, social care has been overwhelmed: supplies of PPE have been unavailable; testing has been patchy or non-existent; patients have been discharged from hospitals into care homes and proceeded to spread the virus; deaths among residents have reached somewhere between 30-40% of all coronavirus-related deaths; and fatalities amongst social care staff are outstripping those of healthcare workers and the wider working population.

This is a policy scandal of epic proportions and now is exactly the right time to institute a public inquiry into events. At least three issues will need to be included in such an inquiry: fragility of provision; low policy salience; and unethical policy and practice.

Fragility of provision

The fragile financial structure of the industry is such that most providers were already unable to withstand even a minor downturn in income or an increase in costs. Within weeks of the outbreak, the Care Provider Alliance (representing about half of all care providers) was warning that the sector risked collapse without emergency funding to help pay wages and buy PPE. Similarly the UK Home Care Association said the financial pressures arising from the pandemic could force a significant number of the country’s 8,000 home care providers to close. The pandemic will surely require a fundamental reappraisal of a care market consisting of thousands of independent companies making their own decisions on where to set up, what to provide, and whether or not to continue.

This widespread instability equally applies to the voluntary sector where inherent weaknesses have been starkly exposed by COVID-19. Bookings for training and services have been cancelled, charity shops closed, community fundraising halted, and (in the case of the larger charities) investment portfolios reduced in value. A survey of the sector undertaken during the lockdown period found over half saying they would be bankrupt within six months without financial help. With the sector estimating a loss of £4billion, the allocation of £750m by the Chancellor was generally seen as inadequate – a view confirmed by the Commons Digital, Culture, Media and Sports Committee. A sustainable future for the third sector has to be part of a new settlement.

Low policy salience

Adult social care is a residual means-tested service that has always struggled to achieve political attention. This has been exacerbated by COVID-19 in two ways: the easement of statutory duties, and the perception of the sector as a handmaiden to the needs of the NHS.

Rather than ensure that local councils are adequately funded and empowered to respond to the challenges thrown up by this crisis, one of the first responses of the government was to relieve them of their existing statutory obligations. The Coronavirus Act 2020 provided for the ‘easement’ of local authority duties in England and Wales around the provision of care and support needs. This meant they would no longer have to comply with their duty under the Care Act 2014 to conduct needs assessments and provide support unless failing to do so might constitute a breach of a person’s human rights. The latter constituted a very high bar indeed.

Within weeks of the availability of these measures, eight local authorities had taken up powers of easement, even though there was emerging evidence of a decline in the number of people coming forward to seek help because of fear of contracting the virus. Concerns are now being expressed that local authorities are entering into easement without even providing evidence that they have met the necessary legal thresholds.

The tangled relationship between adult social care and the NHS has a long history, with repeated concerns that the shape of the former has increasingly been determined by the needs of the latter. This has been very evident in the response to COVID-19 with the two sectors being treated very differently in terms of the availability of testing, PPE, and even in the ways deaths are recorded and counted. However, the ‘handmaiden’ role of adult social care is best seen in the allocation to local authorities of £1.3billion to rapidly free up 15,000 hospital beds for coronavirus patients by expediting discharge from hospital back home or to alternative accommodation (notably care homes) for those patients for whom a clinical setting was no longer deemed appropriate. This decision alone threw the sector into chaos and is likely to have accounted for many thousands of deaths.

Unethical policy and practice

Over the decades there has been little reflection on the place of ethics in adult social care policy and practice, so there is some irony in the fact that it took the coronavirus outbreak to finally produce an ‘ethical framework’ for the sector. Eight principles for organising and delivering care have been identified: respect; reasonableness; minimising harm; inclusiveness; accountability; flexibility; proportionality; and community. These are useful principles to guide behaviour in any circumstances and it might be considered unfortunate that it took a global pandemic for them to be formulated. Guidance set out ‘an expectation’ that local authorities will ‘observe’ the framework, but application of these principles in the face of tightening of access to support is bound to be difficult – if not impossible – to deliver.

In the meantime, the policy response to COVID-19 has been characterised by a series of highly dubious ethical decisions. The political and scientific interest in ‘herd immunity’ (and the implied acceptance of the deaths of large numbers of older and more vulnerable people) was central to the government’s decision-making in the crucial months of February and March. It was abandoned only when it became clear in an advice paper from Imperial College London that the NHS would be overwhelmed and up to 250,000 deaths, mostly of older people, would be likely.

This assumption that the lives of vulnerable groups are of second-order importance is also evident in other policies – the absence of PPE and testing in the care sector have been noted, but the most gross ethical breach has been in the transfer of infected and untested patients from hospitals to care homes. Not only are there reports of councils refusing to release payments unless these patients are admitted, but where fatalities occur, care homes are not equipped to deal with them ethically. There is typically no GP presence, no palliation, no fluids, no syringe drivers and no staff with end of life training.

Reports also emerged of residents in some care homes for older people being categorised en masse as not requiring resuscitation should they contract the disease. The Care Quality Commission had to step in and issue a warning for the practice to stop. A similar tale applied to adults of working age, with the National Institute for Clinical Excellence being forced to change its emergency guidance to NHS doctors, after disability groups threatened legal action over what they feared could result in certain patients not getting equal access to critical care. Meanwhile, there are no reliable figures available for coronavirus-related deaths amongst working age adults with a learning disability, autism or similar conditions and disabilities. The contrast with the government’s ethical framework could not be starker.

Time for a public inquiry

All of this amounts to a very serious charge sheet indeed, one that requires accountability to be identified and justice being seen to be done. It is insufficient for the government to suggest in vague terms that these matters can be addressed in the fullness of time; they are too urgent for that. The best way to address them is through a public inquiry. Some are already claiming that this is required as a matter of law under the Human Rights Act 1998 and the European Convention on Human Rights.

As former Department of Health permanent secretary Una O’Brien has argued, the public would need to be confident that all relevant documents, minutes, emails, texts and even Zoom records were handed over to the Inquiry in a timely way. There would also need to be assurances that politicians, officials, scientific and health experts and others would give their evidence willingly, under oath and in public. And there are four questions to be answered: What has happened? Why did it happen? Who is to blame? What can be done to prevent it happening again?

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About the Author

Bob Hudson is Professor at the Centre for Health Services Studies, University of Kent

https://blogs.lse.ac.uk/politicsandpolicy/covid19-adult-social-care-inquiry/

Despite the overall drop in COVID-19 deaths, the latest data reveal continuing increases occurring in care homes and the community.

Melanie Henwood explains why there is a need for more scrutiny around what is happening in care homes and across the social care system.

The latest weekly death data released by the Office for National Statistics (ONS) up to 24 April show a drop in overall deaths (all causes) compared with the previous week. It is also the first week in which there has been a fall in deaths since March 20, but the weekly total of 21,997 deaths is still almost double the five-yearly average for this time of the year.

Some of these ‘excess deaths’ are directly attributed to Covid-19: 8,237 death registrations mentioned the virus in the week to 24 April, accounting for 37.4% of all deaths. The impact of these deaths is not spread evenly across the population, and the highest number of Covid-19 deaths occurred among people aged at least 85 (42.6% of all Covid-19 weekly deaths).

Where are deaths occurring?

Where deaths are occurring reveals the most about how the pandemic is developing. The ONS year-to-date analysis tracks deaths by the week and cumulatively. Up to week 17 (ending 24 April) the data for Covid-19 deaths indicate that 71.8% (19,643) occurred in hospital, while the remainder occurred in the community: 5,890 in care homes; 1,306 at home; and 301 deaths in hospices.

But the week-to-week changes reveal more granularity. In just one week (between week 15 and 16) the total deaths in care homes increased by 48%, representing almost a third of all deaths. Figure 1 shows the number of Covid-19 deaths in England and Wales registered up to 24 April by place of occurrence, and demonstrates the shifting pattern of hospital deaths declining and those in the community, particularly care homes, still rising, and equivalent to almost 60% of those occurring in hospitals

Since 10 April, the Care Quality Commission has been collating data on notifications of deaths of residents in care homes where Covid-19 was believed to be involved. Figure 2 shows these cumulative deaths from 10 April to 1 May. The continuing upward trajectory is stark.

The government’s lack of response

Despite the compelling evidence about the rising deaths in care homes, the response from government has been remarkably laissez-faire. On the day that the data showing sharp rises were published (28 April), Matt Hancock remarked – to some astonishment – that ‘the proportion of Coronavirus deaths in care homes is around a sixth of the total, which is just below what we see in normal times’. This is baffling. Deaths in care homes, both from all causes and Covid-19 mentions, are increasing; what the ‘sixth of the total’ refers to is not clear, nor is it clear why the Health Secretary concluded this is below what would ‘normally’ be expected. Given the opportunity in questions to correct this glaring error, Hancock dismissed the issue. Rather, he re-stated that care homes have been a top priority from the start, but that it was recognised there would be challenges because of the frailty of residents. A failure to understand the data, to interpret it correctly, or to present a credible strategy for responding to the emerging pattern is inept at best.

Prime Minister’s Questions on 29 April saw the First Secretary (Dominic Raab) responding to Sir Keir Starmer asking about the deaths in care homes and the ‘truly dreadful’ figures emerging. Raab claimed – again despite the latest evidence to the contrary – that there ‘are some positive signs’ emerging about deaths in care homes. He also referred to the principal challenge in care homes of a decentralised system and lack of control of ‘ebb and flow’ in and out of homes of residents, staff, friends and family as ‘the single biggest challenge in terms of reducing transmission’.

It is wrong, and misleading, to offer a post-hoc rationalisation of the situation merely as the result of a marketised care system which does not operate like the command and control world of the NHS. In response to the challenge, Raab reiterated that there is a ‘comprehensive plan’ to ramp up testing in care homes (announced on 28 April), to overhaul the way personal protective equipment (PPE) is delivered, and to expand the workforce by more recruitment. That looks like a plan that could have made sense several weeks ago, but at this stage of the pandemic it is too late; the upsurge in community deaths reflects the failures of the past four weeks to prioritise social care, or to take any account of how it might be impacted by the decisions made for the NHS.

It might have been expected that there would be some humility, or some acceptance that the dire situation in care homes and the community is a consequence (even if unintended) of the policy to-date in responding to the pandemic. But this was entirely predictable, and therefore – to some extent – avoidable. The focus has been on the NHS from the outset; it is there in the slogan to ‘protect the NHS’ and the imperative to ‘flatten the curve’ of transmission so that the NHS is not overwhelmed. The increase of surge capacity through emptying hospitals of patients wherever possible, and creating new ICU facilities in the pop-up Nightingale Hospitals, also meant that additional pressures in the system would be pushed elsewhere. They have emerged in the community – people were discharged from hospital to care homes without testing for Covid-19; people who became ill in care homes were largely not tested for the virus and most were not admitted to hospital. With inadequate PPE provision, all the preconditions were in place for the rapid and uncontrolled transmission of the infection within care homes and across the social care system in the community. This is the price of protecting the NHS at any cost.

The Prime Minister has spoken of the ‘current success’ of the response to coronavirus, but this does not look like success when the death toll is currently the highest in Europe. We are not yet out of this crisis by any means, but the growing difference between what is happening in the NHS and the fate of people effectively abandoned in social care has to be addressed and responsibility accepted. In a massive understatement at the daily briefing on 5 May, after presenting the latest data on place of death and noting that around half as many deaths are now occurring in care homes as in hospital, the Chief Scientific Adviser of the Ministry of Defence, Professor Angela Mclean remarked: ‘I think what that shows us is that there is a real issue that we need to get to grips with about what is happening in care homes’.

At Prime Minister’s Questions on 6 May, Sir Keir Starmer quoted this observation and asked why the government had not already got to grips with the situation in care homes. Boris Johnson responded that the situation is something that he bitterly regrets but that people are working very hard to get the figures down and to get the right PPE to care homes and to ‘encourage workers in care homes to understand what is needed’. However, he challenged the conclusion about the state of the epidemic in care homes and claimed ‘palpable improvement’ in the figures. That remains to be seen; the deaths are increasing slower but are rising nonetheless, and there is little sense of this being addressed strategically or treated as a priority. Failure to do so, and to continue to view social care as a different level of challenge because of the frailty of many older people needing care, would seem to suggest, at best, complacency. At worst, it hints at indifference, reflecting inbuilt ageism and acceptance of the inevitability of the scale of deaths outside hospitals as a price worth paying.
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About the Author

Melanie Henwood is an independent health and social care research consultant.

LSE blog

On the brink of a global crash, it’s time for the UK to show some leadership


A new report has highlighted that informal economy workers across the wold face having their livelihoods destroyed

Dire warnings of a deep recession in the UK, Europe and the developed world are filling the media, with major job losses predicted and stacking up in manufacturing, aerospace, aviation, retail, hospitality and other sectors heading for sharp decline.

A new report from the International Labour Organisation has highlighted the drop in working hours globally due to the Covid19 virus which shows that 1.6 billion workers globally in the informal economy (almost half of the global workforce) face having their livelihoods, not matter how meagre, destroyed.

According to the ILO the drop in available working hours in the current second quarter of 2020 is expected to be even worse than previously estimated. The previous estimate was for a 6.7% drop – equivalent to 195 million full-time jobs as a result the extensive lockdowns across the globe.

Compared to pre-virus levels, a 10.5% deterioration is expected, which equates to 305 million full-time jobs (based on a 48 hour week).

Estimates suggest a 12.4% reduction of working hours in the Americas (compared to pre-virus levels) and 11.8% for Europe and Central Asia. The estimates for the rest of the regional groups are all above 9.5%.

The 1.6 billion ‘informal economy’ workers (the most vulnerable in the labour market), out of a global workforce of 3.3 billion, have already suffered massive damage to their ability to earn even a living.

Without an alternative income these workers and their families will have no means to survive the a recession. The ILO report also predicts that more than 436 million enterprises/companies face high risks of ‘serious disruption’ ie: massive downsizing and closures.

These include 232 million in wholesale and retail, 111 million in manufacturing, 51 million in hotel and food and 42 million in housing and other business activities.

In response the ILO has called for urgent, targeted and flexible measures to support workers and businesses, particularly SMEs.

“For millions of workers, no income means no food, no security and no future. As the pandemic and the jobs crisis evolve, the need to protect the most vulnerable becomes even more urgent.” said Guy Ryder, the ILO‘s Director-General.

Ryder has called for international coordination on stimulus packages and debt relief measures as being critical to making a global recovery effective and sustainable and adds that that ILO standards can provide a framework.

“As the pandemic and the jobs crisis evolve, the need to protect the most vulnerable becomes even more urgent,” said Ryder.

“For millions of workers, no income means no food, no security and no future. They have no savings or any access to credit. These are the real faces of the world of work. If we don’t help them now, these enterprises will simply perish.”

Lacking a powerful global leadership notably from the USA, where Trump is in meltdown, the desperately slow response from the EU which saw Ursula von der Leyen the President of the European Commission having to apologise to Italy and the UK government’s inexperience, self inflicted errors and bungling over PPE and testing means the ILO’s demands coupled with nationalism will be made difficult.

Tony Burke is the TUC General Council’s Lead on employment and trade union rights, Unite Assistant General Secretary, and Chair of the Campaign For Trade Union Freedom

International Labour Organisation

The lockdown and social norms: why the UK is complying by consent rather than compulsion

The belief that ‘we are all in it together’ is more important than other factors in explaining why the UK public has complied with lockdown measures so far, early data suggests. Jonathan JacksonChris PoschBen BradfordZoe HobsonArabella Kyprianides, and Julia Yesberg discuss the first findings of a survey on lockdown compliance in ten UK cities.

Throughout the lockdown, calls have centred on the need for collective action: to unite as a community, people need to remain apart as individuals. The roots of what has become an all-too-familiar mantra, ‘stay home, save lives, protect the NHS’, can partly be traced back to the recommendations of one of the Scientific Advisory Group for Emergencies expert groups. Framed as a way ‘to reduce the risk of public disorder’, the advice was that the government should:

‘Provide clear and transparent reasons for different strategies [that]… set clear expectations on how the response will develop… Promote a sense of collectivism: All messaging should reinforce a sense of community, that “we are all in this together.” This will avoid increasing tensions between different groups (including between responding agencies and the public); promote social norms around behaviours; and lead to self-policing within communities around important behaviours.’

The powers that Parliament passed on 26 March were unprecedented, with basic freedoms enshrined in English law on free movement and on free assembly, taken away overnight. The police were tasked to enforce the legal requirement for social distance, yet at the time of writing, public compliance seems to have been remarkably widespread, and the police have rarely had to intervene. By all accounts, in the UK it seems to have been compliance by consent not compliance by compulsion.

How did this happen? As of 26 April there have been over 20,000 Covid-19-associated deaths in UK hospitals. Has adherence to the guidelines been partly about fear of catching the virus? Did making social distancing a legal requirement and the policing of this requirement also make a difference? Was adherence actually only an issue of widely shared norms and values—a simple success for the mantra ‘stay home, save lives, protect the NHS’?

To examine empirically some of the factors underlying people’s levels of lockdown compliance, we started a multi-wave panel study to track the experiences, attitudes, and behaviours of 1,200 people recruited on the platform Prolific Academic—300 living in London and 100 living in each of Edinburgh, Newcastle, Cardiff, Leeds, Liverpool, Manchester, Birmingham, Sheffield and Glasgow.

First wave data were collected on 21 April and it is important to stress that our (convenience) sample is not representative of the 10 cities. The strength of the data lie in our ability to field a large number of measures quickly and our ability to track individuals over time (in the case of this study, every three weeks). By way of benchmark, we are also currently conducting a nationally representative sample survey. However, gathering data from random samples takes time.

To measure compliance in our 10 city study, we asked research participants ‘How often during the past week have you engaged in each of the following behaviours during the Covid-19 outbreak?’:

  • ‘socialised in person with friends or relatives whom you don’t live with?’ (86% said never, 10% said rarely, 2% said sometimes and 2% said often or very often),
  • ‘went out for a walk, run, or cycle and spent more than a few minutes sitting somewhere to relax?’ (62% said never, 15% said rarely, 11% said sometimes, and 11% said often or very often), and
  • ‘travelled for leisure (e.g. driven somewhere to go for a walk)?’ (87% said never, 7% said rarely, 3% said sometimes and 10% said often or very often).

We used a standard form of regression modelling to see which factors explain (what was to us a surprising amount of) variation in self-reported lockdown compliance.

Knowledge and concern about catching Covid-19 is not important

We asked people to rate their knowledge level on Covid-19 and tell us how concerned they were about getting infected. Our analysis indicates that neither knowledge nor fear of catching the virus played a role in explaining differing levels of lockdown compliance (holding constant other factors).

In other words, those who said that they often travelled for leisure, and/or often socialised out of their household, and/or often stopped in the park for a rest or a sunbathe, were not less frightened of catching Covid-19 nor felt less knowledgeable about the virus, compared to people who never or rarely did those things.

Does the law make a difference? Yes, but only with respect to the values and norms that the law expresses

The question ‘does making something illegal and policing the particular law actually make a difference to people’s behaviour?’ is an important one. Beyond incapacitation, the legal system has three levers at its disposal to secure voluntary compliance. The first lever is deterrence. Deterrence models are based on the idea that (would-be) offenders are responsive primarily to the risk of punishment. People comply because they fear getting caught by the police and being punished by the courts. The second lever is legitimacy. A legitimate authority has the right to exercise power: it commands consent that motivates people to be law-abiding citizens. People comply because they feel a moral obligation to obey the police and law.

We found that neither deterrence nor legitimacy (police and legal) predicted people’s self-reported levels of lockdown compliance. But we did find evidence for the third lever: the expressive function of the law. We asked people whether they thought it was right to make social distancing a legal requirement (it is worth saying that under 90% of our research participants said it was ‘right’ or ‘completely right’); whether by making it a legal requirement, the government sent the message that social distancing is important to fight the pandemic; and whether making social distancing a legal requirement helped to clarify what we should and should not be doing. Interestingly, 35% somewhat agreed that making it illegal ‘helped to clarify what we should and should not be doing’ and 53% completely agreed—to us this reflects ongoing debate about ambiguities and mixed-messages in the law, its enforcement, and Government advice.

We found that endorsement of these sentiments predicted lockdown compliance, adjusting for fear of the virus, police and law (and all the other factors). The law, through what it expresses, influences our beliefs and coordinates our behaviour. On the one hand, the content of law expresses to citizens what authorities and other citizens deem to be right or wrong and reveals widespread attitudes towards the behaviour the law regulates. On the other hand, by shaping expectations about how others will behave, the content of law helps to coordinate behaviour: the law helps to create concordant expectations.

In short, our analysis suggests that making social distancing a legal requirement may have strengthened public compliance not through deterrence or legitimacy, but through signalling that the nation needs to take social distancing seriously, underlining what people should and should not be doing, and why.

A story of the power of social norms centred around supporting the NHS

Finally, we found that social norms—the ways people think it is correct to behave and the social pressures this places on them—played a role. We define norms as commitment to (and knowledge of other people’s commitment to) the normative principle that everybody should follow social distancing guidelines. Norms motivate behaviour not only through coordination and cooperation, helping to make people accountable to each other; they also enable people to express shared values, meaning, and identities. Through the take-up of, and adherence to, norms:

we project a certain image and craft a sense of self: of people who care about the dignity of human beings, for whom death is a sombre and serious business, for whom the group is more important than the individual, or whatever.

Unsurprisingly, given the media and political debate, we found that sentiments like ‘most people in my local community would disapprove if some individuals were not strictly following social distancing to help prevent the spread of Covid-19’ and ‘it is important to the National Health Service that everybody sticks to the guidelines on social distancing’ played a central role in explaining lockdown compliance (adjusting for the other factors). Framing the call for collective action to rally behind a beloved institution like the NHS seems to have worked.

Take-home message

At least according to our survey of a convenience sample of people in 10 cities conducted on 21 April, we found that most important to self-reported lockdown compliance was the belief that ‘we are all in it together and we all need to come out of it together’—a sense of common fate, a shared identity, and acting for the common or the social good, centred around national sentiment towards the NHS. Social norms also seem to have been backed up by making social distancing a legal requirement. This may have helped underline how important social distancing is if we are to collectively (as a nation) fight the pandemic. Fear of the virus, police or law were unimportant; neither was the legitimacy of the police or law.

Our results may not be all that surprising. But how are things going to change? Will levels of compliance go down and will motivations to comply shift as lockdown fatigue sets in, and/or as different transition from lockdown phases begin, or indeed if lockdown returns for certain periods, for current groups? Watch this space!

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About the Authors

Jonathan Jackson is Professor in Research Methodology and Head of the LSE Department of Methodology.

Chris Posch is a Postdoctoral Research Fellow in the Department of Methodology at LSE.

Ben Bradford is Professor of Global City Policing in the Department of Security and Crime Science at UCL.

Zoe Hobson is a Researcher in the Department of Security and Crime Science at UCL.

Arabella Kyprianides is a Research Fellow in the Department of Security and Crime Science at UCL.

Julia Yesberg is Research Fellow in the Department of Security and Crime Science at UCL.

LSE blog

To protect older people from COVID-19, state coordination of the social care sector is urgently needed

As COVID-19 rips through our social care sector, now is the time to put an end to the highly fragmented social care market and for the NHS and local government to step in to provide coordination, writes David Rowland. The arguments for doing so are becoming more compelling by the day.

Using the market to deliver social care on a low-cost basis had manifestly failed even before the current pandemic: one in five care homes are rated as inadequate or needing improvement, personal care is provided to people in their own homes in 15-minute slots, with the sector as a whole suffering from a 30% turnover rate – a fact which might explain why there are currently over 120,000 vacancies.

But this market failure, whilst tolerated by politicians of all parties for over 20 years, is fast becoming the cause of a national tragedy. Due to the fragmented nature of social care provision, it is almost impossible to say what is happening to these older people. Within one local authority, as many as 800 different care businesses are delivering vital care services at any one time, making it all but impossible for public health teams to track and monitor the spread of the disease across these providers.

At a national level, the data on care home deaths and infection rates is appearing in the media on a company-by-company, and sometimes home-by-home basis with seemingly no standardised method of reporting. The care regulator has only just started collecting data on deaths caused by COVID-19, some four weeks into the crisis. And family members are often unable to visit their loved ones and so are unable to see what kind of care they are receiving.

And because care home companies exist as separate businesses, in competition with one another, it is difficult if not impossible for them to collaborate to jointly procure protective equipment, or to re-allocate staff members from one home to another to cover sickness absences. The success of one care provider in getting access to PPE or staff cover is to the detriment of another, and without state support it is impossible to develop additional care facilities so as to isolate those who are infected from those who aren’t.

Moreover, the care workforce has become so casualised that care workers will sometimes work in more than one care setting – providing care services in someone’s home one day, whilst working in a residential care setting the next – thus potentially increasing the spread of the disease amongst those who are most vulnerable. The reliance on zero-hours contracts, particularly in the home care sector where nearly 60% of workers operate on such terms, also heightens the risk that those workers who are sick with the virus are unable to afford to stay at home and isolate.

Because the state has driven the cost of delivering care down to a bare minimum, and because offshore investors have sought to extract the maximum short-term profit out of the residential care sector, many care provider companies were teetering on the brink of collapse even before COVID-19 hit. This has left the financial structure of the industry in such a fragile state that it is not able to withstand even a minor downturn in income or increase in costs.

When the relatively mild winter flu hit in 2017, one of the largest and most financially troubled care providers, Four Seasons, reported that its profits had been badly hit due to a 2% decline in occupancy rates caused by an increase in deaths amongst the older population.  The government’s impact assessment on a no deal Brexit, published in 2019, predicted that an increase in inflation would cause the care sector to fall over. And the home care industry was also found to be loss-making even before the pandemic, with a quarter of all businesses at risk of insolvency. 

But these shocks are nothing compared to the sustained impact of coronavirus over an 18-month period – the increased hygiene and cleaning requirements, PPE and staff costs which come with dealing with this crisis, and the fall in income and occupancy due to the tragically premature deaths of large numbers of older people. All these mean that the sector is heading towards financial collapse.

The government’s plan for the social care sector, published in late April, works on the assumption: that it can turn the social care system round by building on this dysfunctional market structure. It sets out plans to provide greater amounts of PPE for staff, to increase testing, and to recruit more care workers alongside an additional £1.6 billion of funding. But these are only the very basics that the system currently needs to deal with the impact from COVID-19.

The government’s plan does nothing to address the high likelihood of provider failure, instead relying on the sector regulator’s ‘market oversight regime‘, which merely warns local authorities if a major provider is about to go bust but does nothing to prevent it.  And it says nothing about addressing the highly precarious employment status of the workforce. Whilst acknowledging that a quarter of care workers are on zero-hours contracts, the government proposes to do nothing to provide them with any additional security, which might prevent them from working when sick and endangering the people they are caring for.

Unlike in the NHS, where the Secretary of State has legal powers in an emergency to issue commands and in effect suspend the operation of the NHS internal market, no similar powers exist in relation to the social care sector. Yet it is becoming clearer that it is impossible to effectively respond to a public health emergency of the current magnitude by relying on market-based provision.

At the very least, local authorities and the NHS should be given the legal powers to take over direct responsibility for providing care in people’s homes, where this can be justified on public health grounds, and to also, if necessary, take back publicly-funded contracts for home care and employ the home care workforce directly as part of the NHS or the local authority.

The NHS and local authorities should also have powers to issue directions to all care providers where there are concerns about their ability to respond effectively to the virus, irrespective of whether the recipients are private payers or are state funded. Publicly-funded capital should be quickly made available to allow the NHS or local authorities to open new homes to provide additional facilities in order to shield vulnerable people. Where care homes are at risk of going bust, local authorities and the NHS should have the right to step in and run the facilities, rather than having to re-house residents at very short notice as currently happens.

Arguments about the state’s long-term role in directly providing social care services and the funding arrangements for social care can wait until this crisis is over. For now, the NHS and local authorities need levers to coordinate social care provision in order to have the best chance of minimising the harm to our older population.

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About the Author

David Rowland is the Director of the Centre for Health and the Public Interest. Prior to this he worked within healthcare professional regulation in the UK as the Head of Policy at three national regulators and has developed significant expertise in social care policy, NHS workforce issues, regulation, safeguarding, whistleblowing and patient safety.

LSE blog

The Tories must not reward tax-dodgers with ‘no strings attached’ bailouts.

Government bailouts must not enrich tax dodgers, writes Prof. Prem Sikka

The UK government is bailing out companies affected by the coronavirus pandemic. What do the public get in return?

The initial kitty of £330bn worth of government-backed loans has been supplemented by the Bank of England’s quantitative easing programme of another £200bn to purchase corporate bonds.

The corporate queue for bailout includes airlines, pubs, restaurants, clothing, oil/gas and numerous other sectors. Take EasyJet. The UK government has given a £600m loan to the company. But the terms of the loan are secret, which means that the public and parliament can’t easily call the government or the company to account.

In the normal course of events, companies must ask their shareholders for additional funding when in distress. After all, they have been receiving dividends, share buybacks and other forms of returns for years. Between 2011 and 2018, the UK’s biggest companies paid out £400bn in dividends and £61bn in share buybacks to shareholders. Now most want to provide little/no additional investment. This includes billionaires like Sir Richard Branson and Sir Philip Green.

Choices

If shareholders fail to invest, the company can enter administration, and its control effectively passes to bondholders, or secured creditors – mostly banks and private equity. They can convert their bonds/debt to equity, and effectively become shareholders and nurse the business.

This means that the entity is no longer obliged to make interest payments on its debt and can preserve its cash flow. It seems that many bondholders do not want to exercise this option. In the final analysis, an insolvency administrator can seek buyers for the business. If that option does not materialise then liquidation and a piecemeal sale of assets beckons.

Other countries are given far more thought to the issue of bailouts. For example, Denmark and Poland have stated that companies registered in tax havens are not eligible for any government bailout funds. After all, they did not directly contribute to the public purse and therefore have no moral right to make a claim on it. The UK must also follow the same principles and refuse to reward elites or companies who excelled at dodging taxes and their social responsibilities.

The case of Virgin

Such principles can help to deal with the £500m Government-backed loanand credit guarantee sought by Virgin Atlantic. US-based Delta Airlines holds 49% of the company’s shares. The ultimate holding company of Virgin Atlantic is Virgin Group Holdings Limited, a company registered in the tax haven of British Virgin Islands (BVI). Its sole shareholder is BVI-resident Sir Richard Branson. Therefore, he holds 51% of the shares of Virgin Atlantic. BVI provides opacity and does not levy corporation or income tax.

Virgin Atlantic should ask its shareholders for additional funding. With an estimated wealth of £4.7bn, Sir Richard – a self-confessed tax-exile – should provide additional funds. He controls numerous companies, including Virgin Care which has £2bn of NHS and local authority social care contracts but has not paid UK corporation tax. The company is ultimately controlled through BVI registered Virgin Group Holdings Ltd. Virgin Group has collected £306m in dividends from Virgin Trains.

Two years ago, Sir Richard sold part of his stake in Virgin Money to Clydesdale Bank and Yorkshire Bank for £1.7bn. The new owners also pay Virgin Group £12m a year, rising to £15m, for the licence to use the Virgin Money brand.

Sir Richard has resources. Even his paper-wealth can be used as collateral to generate funds – but he shows little appetite for that.

If Sir Richard decides to abandon Virgin Atlantic, then bondholders can step-in. If they show no interests then the company should ask BVI for support. It is hard to see any moral case for the UK to rescue Virgin Atlantic and enrich a tax-exile who has carefully crafted his personal and business affairs to avoid UK taxes. Of course, the UK government can buy the airline from administrators at a low price to preserve jobs.

Getting something back

The UK government needs to state the principles which will guide its bailouts. They must be based on social responsibility. Currently, the UK government is subsidising 80% of the employee wages, up to a maximum of £2,500 per month, until June. After that unemployment is likely to spike. To prevent that, bailed out businesses must guarantee not to cut jobs for the next 12 months.

Bailouts should be used to bring essential industries under public ownership. In return for bailout funds, the recipients must terminate all strategies for avoiding UK taxes and embrace socially responsible objectives.

These should include targets for reducing carbon emissions, gender and ethnicity pay gap; greater diversity in company boards and employee-elected directors on the boards of large companies. Companies must not haemorrhage cash through payment of excessive dividends. Director remuneration should be no more than 10 times the lowest wage in the company.

Any government bailout has to protect jobs, taxpayer and social interests. It must not reward bad companies or corporate elites who eye a sack load of money to enhance their own wealth. It’s time to see some strings attached.

Prem Sikka is Professor of Accounting at University of Sheffield and Emeritus Professor of Accounting at University of Essex. He is a Contributing Editor to LFF and tweets here.