Care Bill 2013
Consideration of Commons amendments
by the House of Lords
Briefing in support of Clause 48 - provision of certain
care and support services to be a public function
Date: 06 May 2014
For more information, please contact:
Parliamentary lead: Quinn Roache, 0161 829 8647
Quinn.Roache@equalityhumanrights.com
Legal policy lead: Nony Ardill, 020 7832 7857
Nony.Ardill@equalityhumanrights.com
Introduction
This briefing is in support of the following amendment moved by Earl
Howe, which would have the effect of introducing into the Bill a revised
version of Clause 48. The original version of Clause 48 was introduced
into the Bill by the House of Lords at Report stage but removed by the
House of Commons at Committee stage.
The purpose of the amendment
The purpose of Clause 48 is to ensure clarity in the application of the
Human Rights Act 1998 (HRA) to social care services that are publicly
arranged or wholly/partly publicly funded. In the Commission's analysis,
the clause would achieve this clarity, by confirming that the provision in
England, Scotland, Wales and Northern Ireland of publicly funded or
publicly arranged social care by a registered provider (in the private or
third sector) is a 'public function' for the purposes of the HRA. A similar
approach was recommended by the Joint Committee on Human Rights
(JCHR) in its recent legislative scrutiny report on the Care Bill.1
History of the amendment
At report stage in the House of Lords, new Clause 48 was inserted into
the Bill, following an amendment tabled by Lord Low of Dalston. The
amendment, carried by 247 votes to 218 with cross-party support, was
designed to bring all regulated social care services into the scope of the
HRA.
At Committee stage, after a lengthy debate, the House of Commons
removed Clause 48 from the Bill. An amendment was tabled at the
Commons Report stage, not to restore Clause 48 but to introduce a
narrower clause (similar in scope to the one that has now been moved
by Earl Howe). This amendment was defeated by 280 votes to 208.
Earl Howe's revised Clause 48, which the House of Lords is now being
asked to approve, would clarify that the scope of the HRA extends to
social care when it is arranged or paid for (directly or indirectly, and in
whole or in part) by a local authority, or Health and Social Care Trust in
Northern Ireland, and provided by a registered provider.
Why this new clause is needed
In relation to human rights and social care, the current lack of clarity in
the scope of the HRA arose in 2007 following the House of Lords
1
Human Rights Joint Committee - Eleventh Report; Legislative Scrutiny: Care Bill (22 January 2014)
http://www.publications.parliament.uk/pa/jt201314/jtselect/jtrights/121/12102.htm
decision in the case of YL.2 The Law Lords held that a private care
home providing residential care services under contract to a local
authority was not performing a 'public function' and so its residents were
excluded from protection by the HRA. In the Commission's legal analysis
- based on advice from senior counsel - the effect of the YL case is that
home care services provided under contract to local authorities are also
outside the scope of the HRA.
Parliament closed this ‘HRA loophole’ for publicly arranged residential
care, through Section 145 of the Health and Social Care Act 2008.3
However, Section 145 does not extend to home care services. The
Department of Health previously maintained a position that providers of
home care services that are publicly arranged should consider
themselves already bound by the HRA.
The report of the Joint Committee on Human Rights
Earl Howe's revised Clause 48 takes a similar approach to that favoured
by the JCHR. The Committee's scrutiny report on the Care Bill
recommended an express statutory provision, taking advantage of the
opportunity presented by the Bill, to fill the gaps in human rights
protection for all those receiving regulated care that was publicly funded
or arranged, both at home and in residential settings.4 The JCHR went
on to say:
‘[......] the amendment should seek to fix the YL problem for other
aspects of social care which are not covered by the 2008 solution,
2
3
YL v Birmingham City Council [2007] UKHL 27
Section 145 Health and Social Care Act 2008 reads as follows:
Human Rights Act 1998: provision of certain social care to be public function
(1)A person (“P”) who provides accommodation, together with nursing or personal care, in a care home
for an individual under arrangements made with P under the relevant statutory provisions is to be taken
for the purposes of subsection (3)(b) of section 6 of the Human Rights Act 1998 (c. 42) (acts of public
authorities) to be exercising a function of a public nature in doing so.
(2)The “relevant statutory provisions” are—
(a)in relation to England and Wales, sections 21(1)(a) and 26 of the National Assistance Act 1948
(c. 29),
(b)in relation to Scotland, section 12 or 13A of the Social Work (Scotland) Act 1968 (c. 49), and
(c)in relation to Northern Ireland, Articles 15 and 36 of the Health and Personal Social Services
(Northern Ireland) Order 1972 (S.I. 1972/1265 (N.I. 14)).
(3)In subsection (1) “care home”—
(a)in relation to England and Wales, has the same meaning as in the Care Standards Act 2000 (c.
14), and
(b)in relation to Northern Ireland, means a residential care home as defined by Article 10 of the
Health and Personal Social Services (Quality, Improvement and Regulation) (Northern Ireland)
Order 2003 (S.I. 2003/431 (N.I. 9)) or a nursing home as defined by Article 11 of that Order.
(4)In relation to Scotland, the reference in subsection (1) to the provision of accommodation, together
with nursing or personal care, in a care home is to be read as a reference to the provision of
accommodation, together with nursing, personal care or personal support, as a care home service as
defined by section 2(3) of the Regulation of Care (Scotland) Act 2001 (asp 8).
(5)Subsection (1) does not apply to acts (within the meaning of section 6 of the Human Rights Act 1998
(c. 42)) taking place before the coming into force of this section.
4
Human Rights Joint Committee - Eleventh Report; Legislative Scrutiny: Care Bill at paragraph 77
by extending the protection of the Human Rights Act to other
residential care not arranged under the National Assistance Act,
and to home care...... it should take the opportunity to update the
legal protection afforded by S145 in the light of the trend towards
care being privately arranged but publicly paid for via direct
payments or personal budgets.’5
The JCHR was unconvinced by the Government’s view that all providers
of publicly arranged social care should consider themselves already
bound by the HRA.6 A number of leading peers who spoke in favour of
Lord Low's amendment at the Bill's Report stage in the House of Lords
also disagreed with the Government's legal analysis. During the debate,
Lord Hope of Craighead stated:
'The solution to the problem that the noble Lord, Lord Neuberger,
indicated in his speech [in the YL judgment] was that if the
legislature considered it appropriate that residents in privately
owned care homes should be given convention rights protection
against the proprietors, it would be right for the legislature to spell
that out in terms and make it clear that the rights should be
enjoyed by all such residents. [........] As we have heard - I do not
need to go over the ground again myself - an amendment was
made to the 2008 Act which did not extend to regulated home care
services, so there is a gap.'7
Lord Mackay of Clashfern endorsed Lord Hope's speech in the following
terms:
'I also hope that this will not be a matter on which we will have to
test the opinion of the House, because we agree on the policy that
the Human Rights Act should apply. The only question is whether
the law has been properly framed to deal with that - and we can
have no higher authority speaking on that matter in this House
than a retired member of the Supreme Court.'8
What Clause 48 would achieve
Clause 48 would provide people using registered social care that is
publicly arranged or paid for (in whole or in part) with direct legal redress
against their provider for any human rights abuses that are the provider's
responsibility. However, the clause would do more than provide a legal
entitlement that could be enforced in the courts. In the Commission's
5
Human Rights Joint Committee - Eleventh Report; Legislative Scrutiny: Care Bill at paragraphs 91
and 92
6 Ibid para 72
7 House of Lords Hansard, 16 October 2013, column 549
8 House of Lords Hansard, 16 October 2013, column 551
analysis, clarifying the HRA in this way would also encourage providers
to drive up standards in the social care sector by building in compliance
with human rights, and by being much clearer where the duty lay which
makes those rights ‘real’ for individuals.
Another benefit of Earl Howe's amendment relates to residential care.
Ministers are expected to use the Bill’s Order-making powers (under
Part 4) to repeal sections of the National Assistance Act 1948 (NAA) that
set out the current statutory framework for arranging care and support.
Section 145 of the Health and Social Care Act 2008, introduced after the
YL case to secure HRA protection for care home residents, cross refers
to Section 29 NAA. If Section 29 is repealed by Ministerial Order,
Section 145 would become ineffective in England and Wales. Earl
Howe's amendment would solve this problem, maintaining HRA
protection for care home residents.
Supporting evidence
Home care in England
In 2012-13, 385,000 people aged 65 and over received home care in
England, and 100,000 people aged 18-64. Only nine per cent of contact
hours were provided directly by Councils with Adult Social Services
Responsibilities (CASSRs) to those in receipt of home care, whereas 91
per cent was provided by the independent sector (private and voluntary
sector providers).9
Evidence in Scotland:
Of the 62,832 clients who received a Home Care service provided or
purchased by a local authority in 2012, 43 per cent received at least part
of their Home Care service from a private or voluntary provider.
Because of the current loophole in the HRA, this means many users of
home care across the UK may be denied direct legal redress against the
care provider for any human rights abuses that arise.
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
9
Health and Social Care Information Centre (2013) Community Care Statistics: Social Services
Activity, England 2012-13, Final release
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 200610 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 law11.
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’.12 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
Clause 48
EARL HOWE
Earl Howe to move, That this House do agree with the Commons in their
Amendment 11 and do propose the following amendments in lieu of the words
so left out of the Bill—
Insert the following new Clause—
10
Equality Act 2006, section 3.
Equality Act 2006, section 11.
12 Principles relating to the Status of National Institutions (The Paris Principles), Adopted by General
Assembly resolution 48/134 of 20 December 1993.
11
“Human Rights Act 1998: provision of regulated care or support etc to
be a public function
(1) This section applies where—
(a) in England, a registered care provider provides care and support to an
adult or support to a carer, in the course of providing—
(i) personal care in a place where the adult receiving the personal care
is living when the personal care is provided,
or
(ii) residential accommodation together with nursing or personal care;
(b) in Wales, a person registered under Part 2 of the Care Standards Act 2000
provides care and support to an adult, or support to a carer, in the course of
providing—
(i) personal care in a place where the adult receiving the personal care
is living when the personal care is provided,
or
(ii) residential accommodation together with nursing or personal care;
(c) in Scotland, a person provides advice, guidance or assistance to an adult
or support to a carer, in the course of a care service which is registered under
section 59 of the Public Services Reform (Scotland) Act 2010 and which
consists of the provision of—
(i) personal care in a place where the adult receiving the personal care
is living when the personal care is provided,
or
(ii) residential accommodation together with nursing or personal care;
(d) in Northern Ireland, a person registered under Part 3 of the Health and
Personal Social Services (Quality, Improvement and Regulation) (Northern
Ireland) Order 2003 provides advice, guidance or assistance to an adult or
services to a carer, in the course of providing—
(i) personal care in a place where the adult receiving the personal care
is living when the personal care is provided,
or
(ii) residential accommodation together with nursing or personal care.
In this section “the care or support” means the care and support, support,
advice, guidance, assistance or services provided as mentioned above, and
“the provider” means the person who provides the care or support.
(2) The provider is to be taken for the purposes of section 6(3)(b) of the
Human Rights Act 1998 (acts of public authorities) to be exercising a function
of a public nature in providing the care or support, if the requirements of
subsection (3) are met.
(3) The requirements are that—
(a) the care or support is arranged by an authority listed in column 1 of
the Table below, or paid for (directly or indirectly, and in whole or in
part) by such an authority, and
(b) the authority arranges or pays for the care or support under a
provision listed in the corresponding entry in column 2 of the Table.
TABLE
Authority
Provisions imposing duty or
conferring power to meet needs
Local authority in England
Sections 2, 18, 19, 20, 38 and
49 of this Act.
Local authority in Wales
Part 4 and section 189 of the
Social Services and Well-being
(Wales) Act 2014.
Section 51 of this Act.
Local authority in Scotland
Sections 12, 13A, 13B and 14 of
the Social Work (Scotland) Act
1968.
Section 3 of the Social Care
(Self-directed Support)
(Scotland) Act 2013.
Health and Social Care trust
Article 15 of the Health and
Personal Social Services
(Northern Ireland) Order 1972.
Section 52 of this Act.
Authority (within the meaning of section
10 of the Carers and Direct Payments Act
Section 2 of the Carers and
Direct Payments Act
(Northern Ireland) 2002)
(Northern Ireland) 2002.
(4) In this section—
“local authority in England” means a local authority for the purposes of this
Part;
“local authority in Wales” means a local authority for the purposes of the
Social Services and Well-being (Wales) Act 2014;
“local authority in Scotland” means a council constituted under section 2 of the
Local Government etc. (Scotland) Act 1994;
“nursing care”, for England, Wales and Northern Ireland, has the same
meaning as in the Health and Social Care Act 2008 (Regulated Activities)
Regulations 2010, as amended from time to time;
“personal care”—
(a) for England, Wales and Northern Ireland, has the same meaning as in the
Health and Social Care Act 2008 (Regulated Activities) Regulations 2010, as
amended from time to time;
(b) for Scotland, has the same meaning as in Part 5 of the Public Services
Reform (Scotland) Act 2010, as amended from time to time.”