Memorandum submitted by Equality and Human Rights Commission (H&SC 26)
The Equality and Human Rights Commission
The Commission") commenced operating in October 2007 and is a statutory non-Departmental public body with statutory duties which include:
- working towards the elimination of unlawful discrimination and harassment;
- enforcing the equality enactments;
- promoting awareness, understanding, good practice regarding and protection of human rights;
- encouraging public authorities to comply with their obligations under the Human Rights Act not to infringe persons' human rights.
For number of reasons its creation represents a landmark development in seeking to achieve greater equality and human rights protection in Great Britain.
Firstly, the Commission has taken on the remit of the pre-existing Equality Commissions of the Commission for Racial Equality (CRE), the Equal Opportunities Commission (EOC) and the Disability Rights Commission (DRC) and also has jurisdiction over discrimination issues relating to age, religion and belief and sexual orientation. This means that for the first time in Great Britain a sole organisation has jurisdiction over working towards the elimination of all forms of prohibited discrimination . This enables the Commission not only to consider discrimination from a narrow and artificial concept of a single characteristic such as their age, gender or whether they have a disability, but the totality of a person's characteristics and intersectional discrimination that they may suffer. It also enables the Commission to analyse the provision of public and private services in their totality and determine where a number of forms of discrimination may exist and therefore merit particular attention.
Secondly in relation to human rights, crucially for the first time since the introduction of the Human Rights Act in 1998 a national body has been established in Great Britain to promote and protect human rights. This is vital to ensure that vulnerable groups are treated with dignity, respect and equality.
This briefing has been produced in the context of the statutory duties of the Commission under section 11 of the Equality Act 2006 to monitor the effectiveness of equality and human rights, advise central or devolved government about the effectiveness of such enactments, recommend any amendments and advise central or devolved government about the likely effect of a proposed change in the law.
Establishing human rights protection for vulnerable groups in private and voluntary sector care
The Equality and Human Rights Commission (the "Commission") calls on the government to introduce a legislative amendment to the Health and Social Care Bill to provide that all private and voluntary sector care homes in Great Britain are deemed to be public authorities for the purposes of the Human Rights Act (HRA) when exercising their care functions.
A legislative amendment is crucial as currently vulnerable groups of older and/ or disabled people do not have human rights protection in private and voluntary sector care homes which represent approximately 90 percent of the care sector.
The government has stated on a number of occasions that its intention was that private and voluntary sector care should be within the scope of the HRA, and intervened in the House of Lords case of YL to make submissions to that effect. However since that judgment last year, the government has indicated it proposes to respond to the protection gap by introducing a regulatory framework within the new Care Quality Commission which considers human rights issues, leaving the issue of the legislative definition of a public authority under the HRA to the Bill of Rights consultation.
The Commission's view is that the proposed solution is inadequate as it will not address the immediate and urgent problem of vulnerable individuals in private and voluntary care having no remedy for any human rights abuses which evidence indicates do occur. The government should use this opportunity to address the protection gap it agrees should be rectified and ensure that all persons in care have enforceable rights to be treated with dignity and respect.
2. The Problem
The scope of the definition of a public authority under the Human Rights Act 1998 (HRA) is a fundamental issue concerning the scope of the application of the HRA and therefore the extent of individuals' human rights being protected in the UK.
The DRC worked extensively on this issue, and to a lesser extent the CRE. For example the DRC intervened in several cases that have considered the issue in relation to care homes and both the DRC and CRE made submissions to the latest inquiry into the issue by the Joint Committee on Human Rights. The DRC was also part of a coalition of organisations that intervened in the House of Lords YL case (BIHR, Justice, Liberty, Help the Aged and Age Concern) and made extensive representations to the government on the issue.
Section 6 of the Human Rights Act 1998 (HRA) makes it unlawful for public authorities to act in breach of Convention rights protected under the European Convention on Human Rights "ECHR"). Section 6(3)(b) specifically provides that "public authority" includes "any person certain of whose functions are functions of a public nature" (commonly known as "hybrid" public authorities). It is important to note however that section 6(5) provides that in relation to a particular act, a person is not a public authority by virtue only of section (3)(b) if the nature of the act is private.
This provision was inserted by the government in recognition that increasingly private bodies carry out public functions, often in situations of procurement. It also importantly indicates that it is not the nature of the body that is critical in determining whether an organisation is a public authority, but rather whether the particular function being provided is of a public nature.
The then Home Secretary Jack Straw stated in the House of Commons:
"We wanted a realistic and modern definition of the state so as to provide a correspondingly wide protection against the abuse of human rights. Accordingly, liability under the Bill would go beyond the narrow category of central and local government and the police-the organisations that represent a minimalist view of what constitutes the state."
The Rights Brought Home White Paper on the HRA stated on the matter of what would constitute a "public authority" (with emphasis added):
"The definition of what constitutes a public authority is in wide terms. Examples of persons or organisations whose acts or omissions it is intended should be able to be challenged include central government (including executive agencies); local government; the police; immigration officers; prisons; courts and tribunals themselves; and, to the extent that they are exercising public functions,
companies responsible for areas of activity which were previously within the public sector, such as the privatised utilities."
Case Law on Care Homes
Despite the intentions of the government the case law since the introduction of the HRA has taken a restrictive interpretation of circumstances in which a private body is carrying out public functions. In particular, in the sector of care homes several decisions have held that even where local authorities make arrangements under statutory provisions for private care homes to provide accommodation and care to individuals, they do not constitute private bodies carrying out public functions. This was held by the Court of Appeal in R (Heather) v Leonard Cheshire Foundation  2 All ER 936.
Since that decision the government has repeatedly indicated that in its view the interpretation in Leonard Cheshire was too narrow, not just in relation to care homes but more generally and committed to identifying an appropriate case in which to try and rectify the position.
The issue was considered again in relation to care homes this year in YL v Birmingham City Council and others  UKHL. A large number of organisations intervened to submit that private care homes should be considered as carrying out public functions for the purposes of the HRA, at least where they are publicly funded. Most significantly the government (via the then DCA) also intervened and made similar submissions to the interveners, at least where those private care homes received public funding. However by the barest of margins (3 to 2 ) the House of Lords decided that private care homes (publicly funded or not) were in the circumstances not carrying out public functions and as a result an individual could not sue those care homes for an alleged breach of Convention rights.
The issue raises the point of whether or not the government is fulfilling its human rights obligations under the ECHR. Article 1 requires the UK to secure the benefit of each of the Convention rights for everyone in its jurisdiction. Article 13 obliges the State to provide access to an effective remedy for an alleged breach of Convention rights.
Currently the only other possible residual route for making a complaint is the local authority or NHS complaints procedure (depending on the body funding the placement). But the scope of these parallel complaints procedures is limited to their own statutory functions and does not extend to care standards. For example, a complaint that related to an arbitrary eviction (engaging the right to respect for home life) could not be investigated under the statutory complaints procedures. Access to the health service or local government ombudsman would be precluded for the same reasons.
3. The Government's Proposed Solution for the Private and Voluntary Care Sector
Particular vulnerability of people in care homes
It is recognised that people in care homes are particularly vulnerable for reasons of their age as well as frequently having physical and/or mental disabilities. A number of possible breaches of their human rights can arise: right to private and family life (article 8), right to not be subjected to inhumane and degrading treatment (article 3) and in extreme circumstances the right to life (article 2). Recent briefings by Age Concern and Help the Aged indicate that 90 percent of people in care homes are in private or voluntary sector care homes and all such persons cannot currently claim a breach of human rights against those homes.
The recent report of the Joint Committee on Human Rights highlighted that residents in care homes are amongst those most vulnerable to human rights abuses. Their report highlighted numerous concerns including:
· Malnutrition and dehydration, including meals bring taken away before a patient can eat them, or insufficient support with eating and drinking;
· Lack of privacy, dignity and confidentiality including individuals being left in their own urine or excrement;
· Neglect and carelessness, such as poor hygiene and rough handling of patients;
· Bullying, patronising and infantilising attitudes towards older people.
Publicly funded and self-funded and care homes
The government indicated after the YL judgment that it will seek to rectify the protection gap regarding both publicly funded and self funded private care homes. The then Parliamentary Under-Secretary of State with responsibility for human rights at the Ministry of Justice, Baroness Ashton of Upholland said:
"I am particularly interested in investigating how to use a human rights framework to ensure that all older people in care are looked after properly. The noble Lord will be aware that one of the issues considered in the judgment was whether the Human Rights Act applied only to those citizens in care homes that were publicly funded. My ambition is to cover all elderly people in care, and I intend to do so." (Hansard, 27th June 2007)
There are important reasons for providing a solution that covers all forms of care (publicly funded and self funded). It is vital to protect all older and disabled people's human rights regardless of who pays for their care. There is a danger in drawing artificial distinctions between publicly and privately funded residents as the Lord Mance noted in his ruling in the YL case. After explaining that it would be 'undesirable' for care homes to privilege the wishes and demands of publicly funded residents over those of privately funded residents, Lord Mance implored care homes to ensure they 'view and treat all such residents with equality'. He then concluded his judgment by sending this message to Parliament:
"...if additional protection is to be achieved by statutory means, it is no matter for regret that this should be done without distinguishing between residents in one and the same care home who on the one hand arrange and fund their own care and accommodation and others who on the other hand benefit from local authority assistance to arrange and fund such care and accommodation."
Proposals for the Health and Social Care Bill and Bill of Rights
Since then Michael Wills, Minister of State at the Ministry of Justice gave evidence to the Joint Committee on Human Rights on 26 November 2007 in relation to the Bill of Rights inquiry and stated:
"I would like to update the Committee on our latest work on the scope of the Human Rights Act. Despite their Lordships' disappointing judgment in YL, we remain committed to ensuring that publicly-funded residents of independent sector care homes are covered by the Human Rights Act. But the issue of the meaning of "public authority" goes much wider than just care homes, and it is important we find a solution that is lasting and effective. I hope therefore to be in a position to address the issue in the consultation process on a British Bill of Rights and Responsibilities, and to draw on a wide range of expertise in that process in a genuine spirit of consultation.
In the meantime, my colleagues in the Department of Health are also taking action in the Health and Social Care Bill, which is having its Second Reading right now. They will use the Bill to strengthen the regulatory powers to ensure that the Care Quality Commission can enforce regulatory requirements in line with the relevant provisions of the Human Rights Act. This will apply to all older and vulnerable people in care. It will also underline that the purpose of regulation is to establish essential minimum requirements that protect people's dignity and human rights - and that regardless of the scope of the remedies provided under the Human Rights Act, we expect all care homes to respect the human rights of all of their residents.
We all have the same goal - to make sure that older and vulnerable people receive proper care. It is important that there is no gap in individual remedies. But I believe that real systematic change where necessary can most effectively be brought about through the regulatory framework - and that is what we are working to achieve."
We do not at the time of writing this briefing have any information on the content of such proposals and whether that will be done by amendment to the Bill or by secondary legislation in the form of Regulations. Based on the comments by Michael Wills we imagine the they will provide the Care Quality Commission powers to consider human rights when carrying out their inspection functions.
The proposal by the government is a step backwards from its position that all private care homes (publicly funded or self funded) should be brought within the ambit of the HRA's protection, to only seeking to introduce legislative changes that give the regulatory body powers regarding human rights.
The Commission considers the proposal unsatisfactory for a number of reasons:
- individuals will still not be able to enforce Convention rights against private care homes;
- the proposal will not directly affect the scope of the HRA to cover care homes;
- the new Care Quality Commission will have no power to investigate complaints from individual residents and therefore provide them remedies.
Further, the context of the government's statement that it intends to consider the care sector as part of the wider public authority definition issue in the Bill of Rights consultation must be understood. Although the Commission agrees it is important that the Bill of Rights consultation should consider the wider issue of the definition of a public authority and when a private body is exercising public functions, there are dangers in leaving the specific issue of care homes to that process. Firstly, it is possible that legislative proposals to clarify or enhance the level of protection under the HRA may be difficult to obtain in practice. Secondly, even if that process does result in legislative improvements, clearly that process will take several years before any Bill of Rights is actually enacted and that would mean there is no human rights protection for people in private and voluntary care homes for a considerable period.
4. Ensuring equal protection in Scotland and Wales
The Human Rights Act provides protection for all persons in the UK and therefore any proposed legislative changes should provide the same level of protection or equivalent provisions across the countries of Great Britain in Scotland and Wales. It also makes sense that the same level of protection or equivalent provisions are introduced in Northern Ireland, although the Commission does not have jurisdiction over Northern Ireland.
In Scotland given issues associated with devolution and the care sector being a devolved issue, a Legislative Consent Motion (Sewel motion) could be used requesting the authority of the Scottish Parliament to legislate in areas which are within the sole preserve of the Scottish Parliament. A draft legislative consent memorandum has in fact already been lodged with the Scottish Parliament in relation to the Heath and Social Care Bill given the fact that it will legislate with respect to several heathcare issues in Scotland. A further legislative consent motion would be required as the Health and Social Care Bill does not yet contain a draft clause relating to the care homes and links obligations under the HRA.
Much of health and social care policy has been devolved in Wales, and this includes arrangements for the inspection and registration of care homes and workers. The new Care Quality Commission to our knowledge will not apply to Wales. Its duties will be largely incorporated into the recently merged Care & Social Services Inspectorate Wales. As a result, any legislative amendment should also ensure coverage of Wales or provide equivalent human rights protection.
Wales has both the highest proportion of older people and disabled people in the whole of Great Britain and this is reflected in the comparatively high proportion of care homes here. There are in total 662 care homes - 399 residential homes, and 263 nursing homes many of which operate on a shoestring budget in the independent sector. Unsurprisingly, the highest number of homes are in coastal areas with a high level of people above pensionable age (Conwy & Denbighshire) and to a lesser extent, areas formerly dependent on heavy industry (parts of Carmarthenshire and the whole of Caerphilly).
As a consequence of these demographics coupled with greater level of poverty, deprivation and disadvantage and more serious problems with bed blocking, this work could be of even greater significance in Wales than elsewhere in the UK.
5. The Commission's Position
The Commission believes that the government should introduce an amendment to the Health and Social Care Bill that will deem all private and voluntary care homes (in relation to the performance of health and social care functions) to be public authorities for the purposes of section 6 of the Human Rights Act. The government should also introduce appropriate legislative amendments or arrangements in relation to the Bill to ensure that the same level of protection is provided in Scotland and Wales.
The Commission also broadly supports the position of the other interveners in YL (Age Concern, Justice, Liberty, BIHR and Help the Aged) , reflected in the New Clause they have tabled and their parliamentary briefing on the issue to the Committee Stage of the House of Commons and urges the government to introduce its own legislative amendment on the issue.
 YL v Birmingham City Council and others  UKHL.
 R v London Borough of Havering, Court of Appeal; YL v Birmingham City Council, House of Lords.
 "The meaning of a public authority under the Human Rights Act", JCHR, Ninth report of session 2006-07, 19 March 2007.
 Hansard HC, 17 June 1998, col 405-408; see also Wadham J, Mountfield H and Edmundson A (2003 3rd ed), Blackstone's Guide to Human Rights Act 1998, Oxford: OUP, pp 73-80.
 See paragraphs 28-30 of the report of the Joint Committee on Human Rights, "The Meaning of Public Authority under the Human Rights Act". Ninth report session 2006-07.
 This included the DRC, Justice, Liberty, the BIHR, Age Concern and Help the Aged. Age Concern went further and submitted that self funding care homes should also be considered to be carrying out public functions and be covered by the HRA
 Briefing Health and Social Care Bill, 2nd Reading, 26 November 2007, Help the Aged; Briefing Health and Social Care Bill, 2nd Reading, November 2007, Age Concern.
 JCHR, "The Human Rights of Older People in Healthcare", Eighteenth Report of Session 2006-07, Volume 1.
 Rule 9B.3 Standing Orders of the Scottish Parliament: http://www.scottish.parliament.uk/business/so/sto-4.htm#9b