Care Bill 2013
Second Reading House of Commons
December 2013
Briefing in support of a power of access in specified
circumstances
For more information, please contact:
Parliamentary lead: Quinn Roache, 0161 829 8647
quinn.roache@equalityhumanrights.com
Policy lead: Nony Ardill, 020 7832 7857
nony.ardill@equalityhumanrights.com
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Table of Contents
The Commission’s analysis .................................................................... 2
Evidence ................................................................................................ 2
Ensuring appropriate use of a power of entry ......................................... 2
About the Equality and Human Rights Commission .............................. 4
1
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.
Evidence
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
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
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
2
appropriate and proportionate way that ensures people’s safety and
security whilst not being over-protective.
An authorised officer applying for a warrant 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 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 illtreatment, it may be under a positive obligation to take urgent steps to
stop the abuse.3
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
3
Z v UK European Court of Human Rights 10/5/2001
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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.
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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