The Care Bill: taking the HRA away from the elderly?

By Rebekah Read

The recently exposed tragedy of the Winterbourne View hospital, which saw vulnerable, elderly patients assaulted by staff who pulled patients’ hair, gave them cold punishment showers, left one outside in near zero temperatures and poured mouthwash into another’s eyes, rightly left the public outraged at the State for the apparent indifference shown to the care provided to their most vulnerable citizens.

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Abuse of this scale, we hope, is unusual.  We hoped the same when the Stafford Hospital neglect was exposed by the Healthcare Commission in 2009, who estimated that between 400 and 1200 people had died unnecessarily between 2005 and 2008 due to the “appalling” standards of care.

These cases should be kept in mind when the Care Bill reaches report stage in the Commons.  An amendment tabled by Labour hopes to ensure that all residents of social care services regulated by the Care Quality Commission (CQC) are covered by the Human Rights Act (HRA).  Considering the fact that the patients in the above cases suffered the abuse despite the fact that they were covered by the HRA, it would seem that, at the very least, all residents of care homes should have the protection of the HRA.

Background

Public authorities and other bodies when they are performing “functions of a public nature” are required to act compatibly with the HRA (under s6).  Thus residents of care homes whose care is directly financed by the local authority have been covered by the HRA since its inception.

The majority[1] in the case of YL v Birmingham City Council [2007] UKHL 27 held that care home services provided by private and third sector organizations under a contract to the local authority are not performing “functions of a public nature”, and so are not covered by the HRA.  This judgment has attracted heavy criticism and Lord Irvine, one of the architects of the HRA, has expressed his opinion that this view was incorrect.  There are, in my view, two main reasons why YL judgment is incorrect.

  1. It seems to me that the public nature of the provision of care is clear. As Lord Bingham pointed out in his dissenting judgment, in the past 60 years or so it has been recognised as the ultimate responsibility of the state to ensure that those who, by reason of age, illness disability or any other circumstances are in need of care and attention are accommodated and looked after through the agency of the State and at its expense if no other source of accommodation and care and no other source of funding is available.  This seems to fit the definition of a public service.
  2. The duties of local authorities are imposed by statute (National Assistance Act 1948).  The fact that the State has assumed a responsibility to see that these duties are performed seems to clearly indicate that these are functions of a Public nature.  The means by which these duties are discharged are irrelevant. As Lord Bingham said, “The provision of residential care is the subject of very detailed control by statute, regulation and official guidance, and criminal sanctions apply to many breaches of the prescribed standards.”[2]

However, regardless of whether the decision in YL was right or not, it is unlikely to be challenged in court as claimants in an analogous situation to YL are elderly, disabled, vulnerable and tired, and are unlikely to be willing to undergo the effort, stress and years that taking their case to the Supreme Court would require.  They would also have to find a law firm willing to carry such a risky case all the way to the Supreme Court.

The Care Bill

The inconsistency the YL decision created between the rights of those who pay (or part pay) for their care and those whose care is publically funded was somewhat tackled by s.145 of the Health and Social Care Act 2008.  This partially extended the protection of the HRA to cover residential care services which are provided for or arranged by local authorities.  However, the Care Bill as it currently stands will revert the position back to that which was originally created by the YL decision.

The upcoming Commons report stage of the Bill provides the final opportunity to correct the unfair situation of residents in essentially identical situations currently enjoying unequal legal rights.

Labour are pushing for an amendment to the Care Bill which will tackle the inconsistency the YL decision and the Bill will create.  The amendment ensures that all social care services regulated by the CQC have duties under section 6 of the HRA. The clause was inserted into the Bill at Report Stage in the House of Lords following a vote on an amendment tabled by Lord Low of Dalston, with cross-party support that was passed by 247 votes to 218[3], but was removed at second reading of the Bill in the Commons.

Slippery slope

Norman Lamb argued at second reading that this clause would lead to other interest groups arguing that private providers in other spheres should similarly be covered by the Human Rights Act.  He said in committee stage, “it extends the Human Rights Act into every sphere of life in an unusual and extraordinary way”.  This inflammatory and hyperbolical statement completely fails to recognise the limited scope of the clause.   Lord Hope in the House of Lords said:

I do not see that there is any real risk that, by dealing with the matter in the targeted way that the amendment of the noble Lord, Lord Low, seeks to do, it will be taken as a signal in the courts that there is some wider reach in Section 6(3)(b) from that which was being discussed in YL.[4]

One situation which is likely to have give rise to concern is housing associations.  Currently, some housing associations are covered by the HRA but in fairly narrow circumstances.  In the case which established this, among other things, the work of the housing association was subsidised by the State.[5]  It is likely that a main concern of the Conservatives is that passing clause 48 could lead to the argument that the functions of housing associations are analogous (in the relevant aspects) to those of social care services and so should be similarly held to fall within the HRA.  However, the limited scope of clause 48 along with the discussions in debate which clearly indicate that it is intended to be restricted, will be available to the courts if the question does come before them.  In relation to pressure on Parliament to legislate, distinctions can be drawn with reference to, for example, the particular vulnerability of those in care.

The politics

The Joint Committee on Human Rights (JCHR) have consistently said that this amendment should be included.  In correspondence with the JCHR, and in debate, the Government have said all care providers “should consider themselves to be bound”[6] by the HRA.  However, this argument was directly responded to by Lord Hope in the Lords who made the point that such comments, however well intentioned, do not have the force of law and so leave the law in a state of uncertainty.  Indeed, Lord Neuberger concluded his judgment in YL with the following remarks:

It may well be thought to be desirable that residents in privately owned care homes should be given Convention rights against the proprietors… if the legislature considers such a course appropriate, then it would be right to spell it out in terms, and, in the process, to make it clear whether the rights should be enjoyed by all residents of such care homes, or only certain classes.[7]

The Government was in support of extending the HRA in these circumstances when in opposition, but they have now hardened their position with no real justification.  Without the clarity in the law provided by this amendment, people who suffer indifference or abuse are made doubly vulnerable, unsure of whether the law protects them.


[1] Lords Neuberger, Mance and Carsewell (Lord Bingham and Lady Hale dissenting)

[2] Para 17, YL

[3] Lord Mackie, Lord Hope and Lord Warner spoke at Report Stage on this issue

[4] Official Report, House of Lords, 16 October 2013

[5] R (Weaver) v London & Quadrant Housing Trust [2009] EWCA Civ 587.  Other reasons given for applying the HRA in this case was that the housing association was granted special intrusive powers by law, such as the power to apply for an anti-social behaviour order, the housing association was working closely with local government to help the local authority achieve its duties under the law, and the housing association was providing a public service of a type which the government would normally provide (providing housing at below market rents).

[6] Note for the JCHR, 21 February 2013.

[7] Para 171, YL v Birmingham City Council and others [2007] UKHL 27

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