It’s almost five years now since the House of Lords decided to favour the commercial “rights” of care providers to dispose of their resources as they saw most profitable over the human rights of care service users in the ruling YL v Birmingham City Council (2007). So what happened next? As I’ve written before the issue turned on the definition of a ‘public authority’ under the Human Rights Act 1998 (HRA). The Lords in YL v Birmingham City Council had decided that a care provider, providing services funded and commissioned by the state, was not a ‘public authority’. It is often said that this is just the kind of situation that parliament had intended to be covered by the HRA; yet I increasingly doubt that. What parliament say is one thing, what parliament do is another. Since the YL ruling, five years ago, there have been successive efforts to close the ‘loophole’ in human rights protection of care service users, most of which have failed (I’ve detailed some of them here). One passed – s145 Health and Social Care Act 2008 – which did not – as many people have claimed – cover all care service users, nor even all residential care service users – it only offered protection to people placed in residential care under the National Assistance Act 1948. As was pointed out by the Equality and Human Rights Commission (EHRC) in their excellent report Close to Home, anyone receiving home care was unprotected (which also includes ‘supported living’ and some ‘Extra Care Housing’ models of care). But as is less often pointed out, plenty of other social care service users also fall into the ‘loophole’. And yesterday, yet another attempt to remedy the YL ruling failed in parliament.
A poorly drafted amendment
1) It only attempted to close the loophole in homecare, and it ignored those people in residential care services, and in children’s social care services, who are still not protected by the HRA – including plenty of publicly funded and commissioned care.
2) It would also have covered people whose home care was privately funded and arranged.
The first point really scuppered supporters’ attempts to argue that they were trying to ensure all users of care services were protected. Introducing the amendment, Baroness Greengross stated:
…if I am a very frail, vulnerable, sick person in need of support or care, and I go into a residential home, my human rights will be protected… If I have exactly the same needs and exactly the same services provided for me in my own home, my human rights are not protected.
And Lord Rix said:
…the law was changed to ensure that care homes in the private and third sectors, when providing care that is publically commissioned, were within the scope of the Human Rights Act.
Lord Wills’ comments suggested that he also thinks that residential care services were covered, as do Baroness Wheeler’s and Earl Howe’s. But this is, quite simply, not true. Privately funded residential care service users are not protected, even if it is arranged by the state (for example, under the deprivation of liberty safeguards). Children, placed in residential care homes or residential schools under the Children Act 1989, would not be protected. Anyone whose residential care is funded and commissioned by the NHS, or under s117 Mental Health Act, would not be protected. I am unclear why nobody in the ‘loophole’ campaign has taken up this issue. I appreciated that community care law is fiendishly complicated, and it’s pretty tricky to ensure all mechanisms by which care might be publicly commissioned is covered, but they don’t have a shortage of lawyers at their disposal to advise them.
The second point is, I suspect, what really scuppered the amendment. When I first saw it I was surprised at it’s rather ambitious drafting, which means that home care providers would be a ‘public authority’ even in respect of privately arranged and commissioned care. I have nothing to back this up except the general resistance the care industry lobby has historically shown to being ‘public authorities’ bound by the HRA, but I suspect this possibility had them really riled. Politically, I suspect, this would have lost the amendment a lot of support from those – like the Lords in YL v Birmingham City Council – concerned about the “commercial rights” of care providers. And not merely the commercial rights, religious groups have also weighed into these debates, as they don’t wish the HRA to bind their religious freedoms in how they provide services.
The amendment was ideologically lopsided. On the one hand, it could not claim to be furthering the rights of those in publicly commissioned care, because it ignored the issue of residual loopholes in residential care. On the other hand, it would have upset those bothered about the rights of private care providers, because it extended the reach of the HRA into commercial areas that had little to do with the state. It is more than a little frustrating that efforts to extend the human rights protection of care service users were effectively wasted on such a poorly drafted amendment. I am not sure when we will next be able to build up the momentum to have another stab at it, but I really really really hope that next time campaigners engage in a proper consultation to ensure the drafting is legally and politically acceptable.
Into the long grass – a wider issue for the Bill of Rights Commission?
What did sink the amendment in the debates? There was a rather bizarre speech by Lord Mackay, backed up by Lord Lester, in which they claimed that there was not any loophole in human rights protection for care service users. Their rather tangled argument in support of this appears to confuse health services with social care, and rather ignores the fact that although the government expressed its view that publicly arranged social care services should be covered by the HRA, they still felt moved to legislate to ensure this was the case. It also does not explain why, given that so many lawyers feel there still is a loophole, it would not be prudent to go for a ‘belt and braces’ approach. Furthermore, if there was not a loophole in home care and areas of residential care before the Health and Social Care Act 2008 amendment, I wonder whether it might be not more likely that one would be found now. If I were counsel working for the dark side, I would argue that if parliament had intended home care and those areas of residential care left untouched by the 2008 amendment to be covered by the HRA, then surely they would have legislated properly to cover those areas at the same time? However, I do think Lester and Mackay were correct to point out several weaknesses and ambiguities in the amendment, for example ‘What happens if a lady who is getting personal care is staying with her daughter and is not in her own private home? This amendment would not apply to that situation.’
Lester and Mackay emphasised that this issue was part of a wider debate about the reach of the HRA, which is under consideration by the Bill of Rights Commission. Of course, they are correct, but I can’t help but feel that whilst the Bill of Rights Commission might consider the general issues about the reach of the HRA, they are unlikely to consider in detail the following points which specifically pertain to social care, and which – I believe – should be properly consulted on before we propose any more failed amendments:
- Instead of having to wheedle out all the possible statutes under which care might be commissioned by the state (which would not be impossible, but history suggests that nobody has bothered to do this effectively), would it be possible to frame the law in more general terms regarding the legal nature of the funding body (ie. a local authority or NHS body)?
- But if the public/private distinction is drawn along the lines of who funds the care, then people whose care is privately funded but arranged by the state, for example those obliged to live in a particular care home under the deprivation of liberty safeguards or by order of the Court of Protection, will not be protected by the HRA (which, as I have argued before, rather makes a nonsense of the DoLS).
- Is care funded through direct payments to be considered ‘publicly’ or ‘privately’ funded?
- Are personal assistants, directly employed by care service users but funded through direct payments provided by the state, to be covered by the HRA? What about independent brokerage services?
- If the public/private distinction is drawn along the lines of care that is regulated by the state, then almost all care providers would be covered by the HRA. Personally, I have no problem with this, but I suspect it would meet with MASSIVE resistance from the care industry, as well as religious groups providing care services.
- What about unregulated care services? (I have had first hand experience of serious human rights problems in unregulated care services, but perhaps because these services are unregulated problems in them rarely come to public attention)
- Which regulatory bodies would be covered – just CQC, or Ofsted as well? Because if Ofsted is also covered, which would be desirable to ensure children’s rights are protected, then it would be hard to distinguish between independent residential schools providing care services to disabled children, and other independent schools (e.g. Eton), whom I imagine would not be best pleased to be bound by the HRA.
There are those who argue, as the Lords did in YL, that the right approach for protecting human rights is not an extension of the HRA, but specialist legislation and regulation that can target particular issues. Carl Gardner, for example, has made similar points
(really quite convincingly) about the deprivation of liberty safeguards. My feeling is that this approach would be misguided in relation to social care in general. The first problem is that it is simply not practical to rely on the regulators to be in all places at all times, putting out human rights fires – people need mechanisms to assert their rights without passively waiting for CQC inspectors to come knocking and hope that they notice something. CQC does not handle complaints about care providers, but the Local Government Ombudsman does. But I wonder whether there are limits on how effectively they can handle complaints about human rights issues, if the body in question is not bound by the HRA? I would be surprised if ‘maladministration’ covered all human rights abuses, and there are some legal issues which in any case the LGO cannot pronounce upon; they cannot, for example create new and binding law. Furthermore, I have wondered how much legal force lies behind the CQC’s essential outcome to ensure the rights of service users are protected, when the legal
rights of those same service users will depend upon the HRA status of the care provider? If I were a private care provider, facing enforcement action for breach of service users’ human rights, I would certainly deploy in my defence that I was not bound to respect their Convention rights by the HRA, and the CQC makes no reference to what specific ‘rights’ it is on about in its essential outcomes.
It is true that certain care standards uphold rights, but a point well made by Lord Wills in yesterday’s debate is that care standards do not comprehensively cover all human rights issues (column 235
), and many human rights issues that arise entangle the responsibilities of public bodies (local authorities, NHS bodies, courts) as well as care providers – and regulators simply don’t have the tools to address those situations. There is a fundamental compromise to be made in law, between determinacy (certainty of outcome, more specific targeting of the issues in hand, proper consultation on particular points), and indeterminacy (ensuring issues that parliament has not considered can still be actionable; ensuring that legal outcomes move with the values and needs of the times; ensuring that voices that might not be heard during the legislative process can be heard by the courts). I can see the arguments for tighter regulation and legislation to target particular issues; but I can’t really see the arguments against ensuring that the HRA is there doing what it was always meant to do – providing a safety net for vulnerable people whose human rights fell between the cracks.