Parliament should ensure Human Rights Act covers all publicly arranged or paid-for care

social care bill, human rights act

In a Report published today, the Joint Committee on Human Rights says that the Care Bill must ensure that all providers of publicly arranged or paid-for social care services are bound by the Human Rights Act.

Publicly arranged or paid-for care

The report says the Bill provides an opportunity to fill the gaps in human rights protection for all those receiving publicly arranged or paid-for care, including in their own home and in residential care homes under arrangements made other than under the National Assistance Act 1948, and recommends that the opportunity to legislate to this effect not be missed by Parliament. It recommends an amendment to the Bill which would close this significant gap in human rights protection for people receiving publicly arranged or paid-for care.

Care Quality Commission

The Committee does not consider that the European Convention on Human Rights requires the Human Rights Act to provide a direct legal remedy for those who pay for and arrange their own care and support from private providers. However, it acknowledges the arguments in favour of ensuring equal legal protection for all those receiving care, however it is arranged or paid for. It recommends that the Government make available to Parliament its assessment of the extent to which the stronger regulatory powers available to the Care Quality Commission since 2008 have led to the provision of more human rights compatible care to all service-users, including the evidence on which that assessment is based; and that the CQC consider requiring that private care contracts include terms requiring providers to comply with the Human Rights Act.

Independent living

The Committee also expresses its disappointment that the Government did not take the opportunity in the Care Bill to provide for a free-standing, enforceable right to independent living. The Committee calls on the Government to bring forward an amendment at Commons Report Stage to amend the Bill to include a free standing provision to give concrete effect in UK law to the right to independent living

Well-being principle

The Committee also recommends that the well-being principle in Part 1 is strengthened to contain an express reference to the right to independent living. This would not be directly enforceable as an individual right, but a local authority could be challenged for a failure to promote the right when carrying out its care and support functions under the Bill.

Legislative Scrutiny: Care Bill

In the Report, the Committee:

recommends the Government bring forward amendments to either the Care Bill or the Children and Families Bill, to be debated in the House of Lords on Monday 27 January, to give parent carers of disabled children equivalent rights to a needs assessment for support;
regrets that the Government is choosing to establish the fundamental standards, to protect of vulnerable adults in the care system from ill-treatment, by way of secondary legislation;

The Committee also:

welcomes the creation of the "well-being principle", which places a general duty on local authorities to promote the well-being of individuals in the adult social care system;
endorses the continuity of care provisions which ensure that individuals are free to move from one local authority to another without interruption in the provision of their care and support services
praises the measures that promote the Government’s positive obligations to take appropriate steps to protect vulnerable individuals from ill-treatment, including the creation of the new adult safeguarding duty and the Bill’s measures which implement recommendations made by the Francis Report relating to care standards
commends the Department f Health’s approach to providing information about the Bill’s potential impacts on groups of people with protected characteristics.

Committee Chair

Dr Hywel Francis MP, the Chair of the Committee, said:

"Whilst acknowledging the measures in the Care Bill which will enhance human rights, my Committee regrets the Government’s reluctance to fill a significant gap in human rights protection for a particularly vulnerable group. The Human Rights Act currently does not protect hundreds of thousands of people who are receiving care which has been publicly arranged or paid for, including care provided in people’s own home and in some cases in residential care homes. The Care Bill which is currently before Parliament should be amended to ensure that this gap in protection is urgently filled.

The Bill is also a missed opportunity to legislate for a free-standing statutory right to independent living. The Government should use the Report stage of the Bill in the Commons to introduce an amendment to provide for such a free-standing, enforceable right. We also recommend the Government bring forward amendments to either the Care Bill or the Children and Families Bill to give parent carers of disabled children equivalent rights to a needs assessment for support."