Care Bill 2013
Committee Stage, House of Lords
Briefing in support of amendment to introduce a power
of access in specified circumstances
Amendment to Clause 41 – Enquiry by local authority
Date: July 2013
For more information, please contact:
Parliamentary lead: Quinn Roache, 0161 829 8647
Quinn.Roache@equalityhumanrights.com
Policy lead: Nony Ardill, 020 7832 785
Nony.Ardill@equalityhumanrights.com
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Table of Contents
Amendment ........................................................................................... 2
Explanation ............................................................................................ 4
The Commission’s analysis .................................................................... 4
Evidence ................................................................................................ 4
Ensuring appropriate use of a power of entry ......................................... 5
About the Equality and Human Rights Commission .............................. 6
The briefing below should be read in conjunction with the Commission’s
case studies in support of amendment to introduce a power of access in
specified circumstances.
The case studies can be downloaded from our website at:
http://www.equalityhumanrights.com/uploaded_files/briefings/care_
bill_case_studies_on_power_to_enter_13_07_18.docx
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Amendment
This briefing relates to proposed amendment 92ZFC in the
Supplementary to the Sixth Marshalled List put forward by
Baroness Greengross to the Care Bill:
After Clause 41 to insert the following new clause “Power of Access”
(1) An authorised officer may apply to a justice of the peace for an
order (an adult safeguarding access order) in relation to a
person living in any premises within a local authority’s area.
(2) The purposes of an adult safeguarding access order are
(a) to enable the authorised officer and any other person
accompanying the officer to speak in private with a person
suspected of being an adult at risk of abuse,
(b) to enable the authorised officer to ascertain whether that
person is making decisions freely, and
(c) to enable the authorised officer properly to assess whether
the person is an adult at risk of abuse and to make a
decision as required by section 41(2) on what, if any,
action should be taken.
(3) When an adult safeguarding access order is in force the
authorised officer, a constable and any other specified person
accompanying the officer in accordance with the order, may
enter the premises specified in the order for the purposes set
out in subsection (2).
(4) The justice of the peace may make an adult safeguarding
access order if satisfied that
(a) the authorised officer has reasonable cause to suspect
that a person is an adult at risk of abuse,
(b) it is necessary for the authorised officer to gain access to
the person in order properly to assess whether the person
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is an adult at risk of abuse and to make a decision as
required by section 41(2) on what, if any, action should be
taken,
(c) making an order is necessary in order to fulfil the purposes
set out in subsection (2), and
(d) exercising the power of access conferred by the order will
not result in the person being at greater risk of abuse or
neglect.
(5) An adult safeguarding access order must
(a) specify the premises to which it relates;
(b) provide that the authorised officer may be accompanied by
a constable;
(c) specify the period for which the order is to be in force.
(6) Other conditions may be attached to an adult safeguarding
access order, for example,
(a) specifying restrictions on the time that the power of access
conferred by the order may be exercised;
(b) providing for the authorised officer to be accompanied by
another specified person;
(c) requiring notice of the order to be given to the occupier of
the premises and to the person suspected of being an
adult at risk of abuse.
(7) A constable accompanying the authorised officer may use
reasonable force if necessary in order to fulfil the purposes of
an adult safeguarding access order set out in subsection 2).
(8) On entering the premises in accordance with an adult
safeguarding access order the authorised officer must
(a) state the object of the visit,
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(b) produce evidence of the authorisation to enter the
premises, and
(c) provide an explanation to the occupier of the premises of
how to complain about how the power of access has been
exercised.
(9) In this section “an authorised officer” means a person
authorised by a local authority for the purposes of this section,
but regulations may set restrictions on the persons or
categories of persons who may be authorised.
Explanation
Baroness Greengross’s amendment seeks to introduce a power of
access that would enable an authorised officer of the local authority to
apply to a justice of the peace for an adult safeguarding access order in
relation to an individual living in the local authority’s area. Before
granting the application, the justice of the peace would need to be
satisfied that the officer had reasonable cause to suspect the individual
was at risk of abuse and that the order was required to enable the officer
to enter the premises to speak with the person in private and assess
whether they were at risk of abuse. The order would have to specify the
premises and would be time limited; other conditions could also be
attached.
The Commission’s analysis
The Equality and Human Rights Commission’s analysis of the Care Bill
suggests that the human rights of persons at risk of abuse would be
better protected by amending the bill to provide a power of entry for local
authority representatives, where a third party is refusing access to a
person who is thought to be at risk of abuse and neglect. A power of
entry with appropriate safeguards, combined with the proposed duty of
local authorities to make enquiries, would enable more effective
interventions in response to allegations or suspicions of abuse and
neglect. The Commission therefore supports the amendment of the
Care Bill to include the clause “Power of Access” as drafted above.
Evidence
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The Commissions’ Disability Harassment Inquiry1 found that abuse and
neglect of disabled people sometimes takes place in their own homes
and is sometimes carried out by people living with or visiting the victim.
Our inquiry examined ten cases of very serious abuse where disabled
people died or were seriously injured. Several of these cases involved
the victim being abused by people they were living with. These cases
suggest that if the local authority had tried to intervene in some of these
cases it is likely that the abuse perpetrators would have denied access
to the suspected victim in the absence of a legal power of entry.
The Commission’s evidence suggests that abuse in the person’s own
home can go unreported because of the fear and isolation of victims.
Limited mental capacity and communication ability, together with mental
distress, are likely to make it more difficult for some victims of
harassment, abuse and neglect to seek assistance, resulting in an
underestimate of the extent of abuse and neglect of adults in their own
homes in official statistics2.
Ensuring appropriate use of a power of entry
The amendment proposed by Baroness Greengross would introduce a
power of entry with appropriate safeguards. Combined with the duty of
local authorities to make enquiries under Clause 41, this amendment
would enable local authorities and other agencies to intervene more
effectively in response to allegations or suspicions of abuse and neglect.
Under Section 6(1) of the Human Rights Act 1998 (‘the HRA’), a public
authority must not act incompatibly with rights under the European
Convention on Human Rights (the Convention). This requirement
extends to courts and tribunals under Section 6(3)(a) HRA. These HRA
provisions would help ensure that a power of entry is used in an
appropriate and proportionate way that ensures people’s safety and
security whilst not being over-protective.
An authorised officer applying for a warrant under this provision and a
justice of the peace considering whether to issue a warrant would in
practice first consider whether an individual is at risk of serious human
rights abuse amounting to inhuman and degrading treatment in breach
1
EHRC (2012) Hidden in plain sight. Inquiry into disability-related harassment. Manchester: Equality and
Human Rights Commission. Page 82
2
EHRC (2012) Hidden in plain sight. Inquiry into disability-related harassment. Manchester: Equality and
Human Rights Commission. Page 95
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of Article 3 of the Convention. This is an absolute right, which cannot be
restricted under any circumstances. If a public authority (including a
local authority or a court) knows, or ought to know, that a vulnerable
person is suffering ill-treatment, it may be under a positive obligation to
take urgent steps to stop the abuse.3 The proposed amendment to the
bill would facilitate the fulfilment of this positive human rights obligation.
If the individual appears to be experiencing abuse that falls short of the
threshold for inhuman and degrading treatment, the HRA would require
a slightly different approach. Entering into a person's home is potentially
a breach of Article 8 of the European Convention on Human Rights,
incorporated via the Human Rights Act 1998. Article 8 enshrines the
right to respect for a person's private and family life, their home and
correspondence. A restriction to these rights must be for a legitimate aim
(which can include public safety and protecting health). Any restriction
must also be proportionate to the aim it is designed to meet, and must
be set out in legal rules that are accessible and reasonably clear. An
authorised officer applying for a warrant and a justice of the peace
considering whether to issue one would therefore have an obligation to
consider whether the use of the power to enter was proportionate and
necessary within the meaning of Article 8 in order to prevent harm to the
person thought to be at risk of abuse and neglect.
The Commission’s analysis also suggests that in non emergency
situations local authorities should consider using independent advocates
to make contact with people they are concerned about. This approach
may be particularly appropriate where the person of concern has a
historically bad relationship with the local authority or is know n to have
particular communication needs. An independent advocate may be able
to establish more effective contact and advise the local authority whether
or not the person is being subjected to abuse and neglect
About the Equality and Human Rights Commission
The Equality and Human Rights Commission is a statutory body,
established under the Equality Act 2006. Its statutory duties include,
among other things, to promote equality of opportunity, work towards the
elimination of unlawful discrimination, and promote awareness,
understanding and protection human rights.
3
Z v UK European Court of Human Rights 10/5/2001
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The Commission enforces equality legislation on age, disability, gender
reassignment, marriage and civil partnership, pregnancy and maternity,
race, religion or belief, sex, sexual orientation, and encourages
compliance with the Human Rights Act. It gives advice and guidance to
businesses, the voluntary and public sectors, and to individuals.
The Commission has a statutory duty under the Equality Act 20064 to
encourage and support the development of a society in which: people's
ability to achieve their potential is not limited by prejudice or
discrimination, there is respect for and protection of each individual's
human rights, there is respect for the dignity and worth of each
individual, each individual has an equal opportunity to participate in
society, and there is mutual respect between groups based on
understanding and valuing of diversity and on shared respect for equality
and human rights.
The Commission is responsible for monitoring the effectiveness of the
equality and human rights enactments and advising on the effectiveness
of enactments, as well as the likely effect of a proposed change of law5.
As a UN accredited National Human Rights Institution, the Commission
is required to ‘promote and ensure the harmonisation of national
legislation, regulations and practices with the international human rights
instruments to which the State is a party’.6 This includes the European
Convention on Human Rights, incorporated in the Human Rights Act
1998.
Find out more about the Commission’s work at:
www.equalityhumanrights.com
4
Equality Act 2006, section 3.
Equality Act 2006, section 11.
6
Principles relating to the Status of National Institutions (The Paris Principles), Adopted by General Assembly
resolution 48/134 of 20 December 1993.
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