Human rights – coming to a private care home near you?

28 October 2013 by

Winterbourne View

Winterbourne View

Human rights protection for residents in private care homes could be a step closer after the House of Lords passed an amendment to the Care Bill.

The amendment, moved by Lord Low of Dalston and supported by Lord Lester of Herne Hill QC and Lord Pannick QC, makes clear that a person who provides regulated “social care” is to be taken for the purposes of subsection 6(3)(b) of the Human Rights Act 1998 to be exercising a function of a public nature.

It is the latest development in a long-running battle to secure human rights protection for service users who are not in local authority-run care homes.

In YL v Birmingham City Council [2007] UKHL 27, the House of Lords held that in providing care and accommodation for residents placed with it by a local authority, a privately owned care home was not performing functions of a public nature within the meaning of the HRA.

This gap was widely criticised and led to section 145 of the Health and Social Care Act 2008, which provides that a person who provides accommodation, together with nursing or personal care, in a care home for an individual is to be taken to be exercising a public function if the services are provided under statutory arrangements (in other words, provided or arranged by local authorities).

But this did not answer concerns that many care service users, including residential care service users, remained unprotected.

The Government’s position had been that providers of publicly arranged care and support “should consider themselves” bound by section 6 of the HRA.  But, Lord Low said in introducing the amendment, this

is not the same as ‘covered in law’.  Secondly, the Joint Committee [on the Bill] was not convinced.  It concluded that, as a result of the decision in the YL case, statutory provision is required to ensure this.

This scepticism of the legal value of a Government comment was echoed by Lord Hope of Craighead, recently retired Deputy President of the Supreme Court.  In his view, not only did such a comment not have the force of law, but it could not be relied upon in a court to guide a judge and would have no relevance to a decision that the court would have to take in a particular case.

Lord Hope commented that section 6(3)(b) of the HRA was

one of the few provisions in what was an excellently drafted Act which, in my experience, judges have found rather difficult to apply in practice.  The reasons for this were explained by the noble and learned Lord, Lord Neuberger, in YL.  He made the point that any reasoned decision about the meaning of that phrase,

‘functions of a public nature’,

risked falling foul of – as he put it – circularity, preconception and arbitrariness.

Lord Hope reminded the House that at the end of his judgment in YL, Lord Neuberger had suggested that the solution would be for the legislature to spell out, if it considered it appropriate, that residents in privately owned care homes should be given Convention rights protection against the proprietors.  Lord Hope warned that if this opportunity were missed, that would not go unnoticed by the courts:

A failure to grasp this opportunity now and to make it clear will be noticed.  There is a risk that, if that opportunity is not taken by Parliament now, courts may take this as a sign that Parliament is content with the law as it stands and may be understood to be on the basis of YL.

Lord Hope said he did not see any real risk that a targeted amendment would be taken as a signal in the courts that there were some wider reach in section 6(3)(b) than the specific issue in YL.

Lord Faulks, by contrast, considered that the amendment “amounts to an illegitimate extension of the Human Right Act” and argued that existing remedies of tort or breach of contract would suffice.

Speaking for the Government, Earl Howe agreed that the amendment

would represent an unprecedented change to the scope of the Human Rights Act.  For the first time, it would capture purely private arrangements, such as a privately arranged social care contract between a private care home and a private individual – an arrangement in which there is no statement involvement…

…Arguably, the proposed amendment would mean that, for the first time, we would be legislating for an expansion in scope of the Human Rights Act that included claims that cannot be brought before the European Court of Human Rights”.

An unusual instance of deference to Strasbourg, coming from the Conservatives.  One might have thought that protecting the rights of the elderly in care homes – of whatever kind – would be precisely the kind of home-grown right which might appeal to a party which prefers a home-grown solution to the Human Rights Act.

The amendment passed 247 to 218, and has been welcomed by human rights groups.  The Bill has now finished Report stage and moves to Third reading on 29 October.  You can follow the progress of the Bill on the Parliament website here (look out for clause 48).

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Related posts

3 comments


  1. Although I have long since lost faith in the British justice system I am pleased to read about this deveolpment.

    My Mother died in a private care home because Social Services refused to allow her home saying she needed 24hr professional nursing care. The first home, which my sister found, was more like a concentration camp where becase of neglect she developed Gangrene. I managed to find a lovely care home, but it cost my mother her home and nearly all her life savings and her dignity.

    Following serving her country in World War Two my Mother worked all her life. She treated everyone with love and compassion, but at the end of her life she lost all her rights of self determination in a ruthless system that crucifies the lower and working classes.

    I hope this will give some protection to old people and allow them a littel dignity in their old age.

    1. elaine keep says:

      Dear Andrea, this is all to common a story.
      It is a shame and disgrace that this is tolerated in our society. Both my parents ended their days in Nursing Homes and I always remember this in my job as a social worker.
      I did hope that the Mental Capacity Act 2005 would rectify some of these issues around admission to residential care, but that does not seem to be working as hoped.

  2. Lucy Series says:

    Fingers crossed that this amendment will stick! Their Lordships in this debate appeared not to understand the legal reality of the situation for people with publicly arranged care. They would not be party to the contract, and so would have no remedy in contract. The remedies in tort would be limited and would not cover the wide range of issues that arise in care settings. For example, a care home deciding to impose restrictions on when (or whether) a person’s family might visit, or imposing a set of rules and restrictions inhibiting a person’s freedom of movement or action – provided this did not involve physical contact, it is hard to see how the torts of trespass would be engaged.

    Moreover, the coverage of care services by the HRA which was introduced by the Health and Social Care Act 2008 would cease to have effect when the care Bill came into force, as it depended on the services being arranged under the National Assistance Act, which would be repealed by the Care Bill. And of course, if a person’s ECHR rights were violated even in privately arranged care, and they had no remedy, then it might very well end up before the ECtHR.

Comments are closed.

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges nuisance Obituary parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: