Joint Committee On Human Rights Sixth Report

76. Memorandum from Age Concern England


  1.1  Age Concern England (the National Council on Ageing) brings together Age Concern organisations working at a local level and 100 national bodies, including charities, professional bodies and representational groups with an interest in older people and ageing issues. Through our national information line, which receives 225,000 telephone and postal enquiries a year, and the information services offered by local Age Concern organisations, we are in day to day contact with older people and their concerns.

  1.2  Age Concern welcomes the opportunity to contribute to the Joint Committee on Human Rights inquiry into the need for a human rights commission. The following response summarises areas where Age Concern has made use of the Human Rights Act to support policy work and information and advice given to the public or to local Age Concern groups. Much of this work has been in the field of social care, so our response concentrates on this area. As the response is based on Age Concern's experience we have not summarised research or information compiled by other organisations, so have not responded to question 3 of the consultation, which asks how many people have been affected by the issues discussed, or question 6 which asks about whether the existing equalities commissions have taken up Human Rights Arguments.

  1.3  Age Concern has adopted a policy statement on human rights as follows;

    "Older people should be able to expect that public authorities will take positive action to ensure that they are able to enjoy entitlements under the European Convention on Human Rights. The impetus that the Human Rights Act has given to the recognition of older people's rights should be maintained, and should be extended to encompass recognition of economic, social and cultural rights, and wider protection against age discrimination"

  We have not, at this stage, formulated a view on whether a human rights commission is needed.


2.1  What are the applicable convention rights?

  Age Concern has raised European Convention rights in a number of contexts:

  Comments on developments in legislation:

    —  The Community Care (Delayed Discharge) Bill permits older people to be discharged from hospital to a care home solely on the basis of risk to health and safety, with no wider assessment of need and therefore with no consideration given to the impact of discharge on rights under Article 8 of the European Convention on Human Rights, the right to respect for private and family life, home and confidentiality. The failure to consider Article 8 rights would appear to itself constitute a breach of Article 6(i), the right to a fair hearing in the determination of a civil right. The only reference to resolution of disputes in the Bill concerns panels set up to resolve disputes between health authorities and the NHS. There is no consideration of the possibility that the older person concerned may have an opinion on the subject, and therefore no consideration of how the older person's views can be taken into account. A dispute resolution procedure that may determine where a person lives, possibly for the rest of their lives, but gives no opportunity for the person to make representations, must surely be in breach of Article 6(i) of the ECHR.

    —  Proposals to amend minimum care home standards require that no adult under the age of 65 may be required to share a room in a care home unless they agree to do so. Different proposed standards for over 65's include no such requirement. This appears to be discrimination in the application of rights under Article 8 and therefore a breach of Article 14.

    —  We argued in response to the introduction of minimum care home standards that there would have to be flexibility in implementation because regulators would have to take account of the views of residents before taking action likely to result in the closure of the home. This would be necessary in order to comply with the right of residents under Article 8 of the ECHR.

    —  We criticised consultation on a new mental health bill for omitting reference to free aftercare as provided under section 117 of the current Act. Where a person's freedom from compulsion depends on them accepting services that are offered, it would appear against the principles of Human Rights that they should have to pay for such services.

    —  In responding to the Single Assessment Process for older people we have argued that the model set out in the National Service Framework for Older People places too much emphasis on the person's physical health, which may result in decisions being made which take insufficient account of a person's social and psychological needs. This could result in decisions which ignore rights under Article 8.

    —  Independent Living Fund: Currently people aged over 65 are not eligible to receive ILF payments unless they are already receiving them. This seems to reflect an assumption that people aged over 65 do not have the same need to live independently as younger adults. This assumption in our view amounts to discrimination in the application of Article 8, if the latter is construed to represent a right to the free development of the personality in a social context. [14]The European Court has also held that the award of a public benefit, at least where monetary benefits are involved, can constitute a property right (see below with regard to SERPS), so this may also be discrimination in the application of Article 1 of Protocol 1 of the Human Rights Act, the right to protection of property.

    —  Assistance with mobility through Disability Living Allowance is not available to people aged over 65. This is discriminatory for the same reasons referred to above with regard to the ILF, and seems to be based on an assumption that older people have less need than younger adults to remain mobile.

    —  We argued that the former system of "preserved rights" funding of some care home residents contravened the rights of those residents, and that when the system was changed there must be safeguards in place to protect the Article 8 rights.

  Requests from members of the public for advice:

    —  Age Concern has offered advice to a number of residents' groups involved in care home closures, and on the basis of this work has produced a factsheet on care home closures, which includes a summary of relevant court judgments including those related to the Human Rights Act.

    —  Cases involving older people who are unable to represent their own interests sometimes involve family disputes. Age Concern has argued that public authorities faced with such disputes should ensure that decisions consider Article 8 rights of family members and comply with article 6(i) in determining such rights. Giving priority to the next of kin is not sufficient.

    —  Cases have arisen where family members have been separated. A recent case in Oxfordshire, where the council refused to place a married couple in the same nursing home, received national publicity, as a result of which the council accepted the need for the couple to stay together. This would seem to be a prime area where Article 8 applies. More widespread are situations where a council, on the basis of resources, is unwilling to provide the necessary services in the person's own home, so an older person is forced to move into a home. Again the result may be the same—that an elderly couple is separated. Even if it is reasonable in some circumstances for a council to provide services on the basis that a family is split up, there should be proper consideration of the impact on the person's private and family life, and older people should not be discriminated against by policies that place less value on the family life of older people than on that of younger adults. Any decision which is likely to involve interference with Article 8 rights, even if justified on economic grounds, should therefore be compliant with Article 6(i) and Article 14.

  Legal action;

    —  Age Concern used Human Rights arguments to help persuade the Government to announce major changes to the rules for inheriting pension under the state earnings related pension scheme (SERPS). Changes to the law in 1986 would have halved the amount of SERPS a husband or wife could have inherited if their spouse died on or after 6 April 2000. However, as that date approached it became clear that this information had generally not been made public and many people had received wrong or misleading individual information. It was accepted that there had been a major case of maladministration by the then DSS. However, Age Concern and others did not believe that government proposals to address this matter were adequate. Age Concern obtained a legal opinion and submitted an appeal to the ECHR on the grounds that the changes were a breach of Article 1 of Protocol 1 because the change was not "subject to the conditions provided by law". Articles 8 and 14 were also cited. This case was likely to have been one of the important factors that convinced the Government to announce in November 2000 a major policy change costing £12 billion over 50 years which provided far better protection.

    —  Age Concern made representations to the Court of Appeal in a case that concerned a local authority care home closure, Cowl v. Plymouth. Approaching the issue from a social care perspective, rather than a legal standpoint, Age Concern argued that in order to balance the impact on the Article 8 rights of individual residents against the wider public interest, decision makers must acquaint themselves with the impact on individual residents. In order to do this the needs of individual residents must be assessed. The independent panel subsequently established to adjudicate on the Cowl case fully concurred with this view, as did a subsequent Court decision, Madden v. Bury.

  One of the key points arising from Age Concern's experience of the implementation of the Act is that even where no absolute rights are conferred, requirements for public authorities to go through proper procedures in determining rights afford older people considerable protection. This has become particularly apparent in the case of local authority home closures. Here there are a number of judgments where courts have not concluded that the local authority could not close a home but have told them to revisit the decision-making process as the process itself was deemed inadequate on the basis of either common law or human rights arguments. In several such cases the local authority, having reconsidered its decision and taken account of the needs and views of residents, has decided not to close the home. Hence, Age Concern emphasises the importance of the impact of the Human Rights Act on the decision making process in protecting the rights of older people. For this reason we regard Article 6(i), the right to a fair hearing in the determination of a civil right, as being the convention article that has so far had the greatest impact.

  The application of Article 6(i) may become wider in the future following the Beeson appeal judgment, which concluded that in order to be consistent with the widespread applicability of judicial review in common law "we should by no means, in our judgment, be at pains in any case to lean towards a conclusion that civil rights are not engaged". The judgment goes on to say "this case and others like it systematically engage the civil rights of the affected individual. They do so on a very simple basis; they are concerned with the question, what premises he will occupy as his home and upon what terms". Such a conclusion makes it harder to argue, for example in the case of home closures or in the case of discharge from hospital to a care home, that civil rights and obligations are not involved so that Article 6(i) does not apply.

  Consequently the main ECHR articles which Age Concern has found applicable to older people have been Articles 2, 3, 6(i), 8, 14 and Article 1 of the first Protocol.

2.2  What are the main concerns about failures in service provision?

  The majority of social care services are now provided by the independent sector, and increased involvement of the independent sector in the provision of health services seems likely. In this context it is important to look at the role of statutory bodies not only in providing services but in determining access to services and in monitoring them. In a recent judgment (R. v. Leonard Cheshire Foundation; Court of Appeal) the Court ruled that "if the arrangements which the local authorities made with the Leonard Cheshire Foundation had been made after the Human Rights Act came into force, then it would arguably be possible for a resident to require the local authority to enter into a contract with its provider which fully protected the residents" article 8 rights, and if this was done, this would provide additional protection. Local Authorities who rely on section 26 (of the 1948 National Assistance Act) should bear this in mind in the contract which they make with providers'. However, there are two problems with this approach. Firstly, there is no source of guidance on what it might mean in practice. Secondly, it is not obvious how individual service users would be able to enforce such a right.

  There are a number of areas where older people may experience infringements to liberty, for example compulsory detention under section 47 of the National Assistance Act or under the Mental Health Act, and restraint in care home settings. Sections of the Mental Health Act have already been declared incompatible with the Act. There is considerable variation in the use of s.47, and there must be some suspicion that unusually high levels of use of this power are related to failure to provide adequate services in a person's home, resulting in their living in squalid or insanitary circumstances. There would seem to be potential for a number of challenges to this situation, including use of Article 5, the right to liberty and security, Article 8 and the application of Article 6(i) to both of these Acts.

2.3  Can you identify responsible public authorities and why they do not provide satisfactory remedies to actual or potential detriments to Human Rights?

  Age Concern has emphasised the role of the NHS and of local authorities in providing care services. However, other aspects of local authority work need to take account of the Human Rights Act, including housing and planning.

  The exclusion of independent sector providers from the scope of the Act.

  The greatest disappointment in the application of the Human Rights Act to date has been the exclusion of many services provided by the independent sector from the scope of the Act, even where these are services provided under contract to public authorities in order to meet statutory obligations to individuals. Case law so far has mainly concerned the provision of care homes, but the issues are likely to have a much wider application.

  Courts have drawn a distinction between care homes and independent prisons and hospitals, in that care homes are not regarded as subject to the act whereas independent prisons are. This distinction does not reflect the extent to which care home residents are dependent on the state to protect their welfare and therefore in need of the protection afforded by the Act. Many people in care homes who are funded by local authorities have some degree of dementia, and those who do not are likely to have a level of disability or frailty that would place them at severe risk if they were not to enter a care home.

  Independent hospitals have been viewed as being subject to the Human Rights Act (R (A). v. Partnerships in Care Ltd) at least where they are treating patients who are subject to compulsory detention. A reason given for this is that hospital managers are subject to duties placed directly on them by law, rather than being derived from a contract with a public authority. It is not clear to Age Concern why Care Home Regulations (breach of some of which by the Registered Person constitutes an offence) are not seen as placing public duties directly on the Registered Person, neither it is clear why breaches of some of the most crucial regulations, such as failure to give notice of closure, should not be listed as giving rise to an offence.

  In the case of residents placed in care homes under s117 of the Mental Health Act Courts have ruled (R v Manchester City Council ex parte Stennett and Two Other Actions 25 July 2002) that "On discharge pursuant to a direction by a tribunal a patient may often still require medical and other care. Clearly, caring residential care (ensuring, for example, that prescribed medication is taken) may be essential. It takes the place of a hospital environment. It can hardly be said that the mentally ill patient freely chooses such accommodation". Whilst this view refers specifically to patients receiving s.117 aftercare it is not obvious why the situation of other mentally ill care home residents should be regarded as any different.

  In looking at the distinctions drawn between care homes and independent sector hospitals, the suspicion raised must be that Courts do not fully understand the extent to which statutory social services provision has increasingly become targeted at the frailest and most vulnerable older people. One of the factors that may have led to the considerable variation in decisions reached by Courts is that the requirement to balance the impact of public decisions on individuals against the wider public interest, as the Human Rights Act frequently requires, entails the application of knowledge that goes beyond legal expertise. The succession of conflicting judgments concerning the duty to assess the needs of individual residents before deciding to close a home is a case in point, since to a considerable extent the differences in conclusions reached by courts has rested on differing assumptions about the effect on individuals rather than on different interpretations of the law. Guidance to the judiciary, and scrutiny of decision making by the Courts, including reporting back to Parliament, therefore needs to draw on a similarly wide range of expertise.

  The European Convention on Human Rights applies where a public authority has been involved in making a determination of the convention rights of the individual. However, this begs the question of which of a series of decisions represents the "determination". This question is crucial in looking at the applicability of Article 6(i). For example, access to social services is determined by assessment under the NHS and Community Care Act and the 1986 Disabled Persons Act. However, Age Concern encounters frequent situations where the judgement of assessors is either fettered beforehand by local authority policy decisions or overruled by subsequent panels charged with rationing resources. Whilst both of these approaches are unlawful they are still widespread. The Human Rights Act should add to legal arguments against such procedures as the service user only has the opportunity to contribute their views to the actual assessment. If the determination of what services are to be provided is made elsewhere—for example by a resource allocation panel, and services are needed in order to secure a convention right—then article 6(i) has been undermined.

  A similar argument applies to cases that Age Concern has encountered where pressure to discharge an older person from an acute hospital bed appears to emanate from the bed manager rather than from medically qualified staff who might be better equipped to judge whether any interference with ECHR rights (eg article 3, or in the case of discharge to a care home, Article 8) was proportionate to the wider public interest.

2.4  Which agencies act as watchdog and to what extent do they address these concerns?—do they do so from a human rights perspective:

  Age Concern has raised a number of issues about the role of the National Care Standards Commission:

    —  The commission will need to have regard to the Convention rights of service users. The need to protect older people from infringement of Convention rights should underpin the work of the commission. It will also be necessary to have regard to the wishes and views of residents when taking enforcement action, since such action will itself have an impact on the convention rights of residents.

    —  If, as the Leonard Cheshire judgment suggests, responsibility for protecting older people from the impact of sudden home closures lies with public authorities, this responsibility is likely to apply not only to local authorities but to the NCSC. The NCSC will therefore have to consider Article 8 in deciding whether the financial viability of homes is sufficient to assure residents of a long term future in the home.

2.5  Describe any relevant legal action that has been taken since implementation of HRA—comment on outcome, effectiveness and any legal reasons why action might not have been taken:

  The above discussion refers to cases involving care home closures. Human Rights arguments have been raised in a number of such cases, and as pointed out above, there has been considerable variation in the conclusions reached. For example R. on the Application of Phillips and Rowe v. Walsall MBC, which concerns another local authority home closure, considers whether the council can interfere with Article 8 rights, which it can as Article 8 is not absolute. The judgment misses what Age Concern would regard as the key point, following the argument set out in our response to question 1 above. This is that the procedures that the council must follow in balancing Article 8 rights against the public interest, and in ensuring that the views of the subject of the decision should be heard in compliance with article 6(i), are of vital importance in protecting the interests of older people. Indeed the judgment concludes that "if, (contrary to my view) a move such as is presently contemplated could possibly constitute an interference with a fundamental right under Article 8, it would surely be justified as required for the economic wellbeing of the council and of those in need of its services". This case raises concerns, as the assumption that the economic wellbeing of the council will "surely" have priority over the Article 8 rights of individuals, would appear to preclude a meaningful process of balancing individual rights against the public interests and by doing so negates the individual's Article 6(i) right to a fair hearing in the determination of Article 8. Fortunately, the Madden v. Bury case referred to above, and the wide interpretation given to the applicability of Article 6(i) by the Beeson appeal judgment, also referred to above, appear to have superseded this judgment. It is also to be hoped that the conclusions reached by the independent panel established following the Cowl judgment will carry some weight in future decisions. However this case illustrates the huge variation in current Court interpretations of the scope of the Act. It may be that the passage of time will lead to greater consistency, but in the meantime this level of variation can only result in public uncertainty about the implications of the Act.

  It is important to note, however, that the impact of the Human Rights Act has not been confined to legal actions and that in many cases public authorities seem to have modified policies in response to the Act. Again, the closure of local authority homes provides a good example, with councils increasingly taking the process of consultation and recognition of the rights of residents seriously. This may be a direct result of the Human Rights Act, or may arise from concerns about adverse publicity following a number of high profile home closure cases. The latter possibility raises the issue of the use of the Act in generating public and press interest in issues affecting older people.

2.6  What essential remedial actions need to be taken (legislative amendment, change in policy, more resources, better training, change in culture?

  In promoting cultural change it is important that underlying attitudes, which assume that older people do not have the same need for personal development in a social setting, are challenged. Article 8 is valuable in providing a basis for consideration of such underlying assumptions, particularly if it is given the wider interpretation proposed by some European judgments. For example, in a European case (Botta v Italy) one Commissioner took the view that "I believe that the positive obligations of the state for an effective protection of the private life personality of an individual entail the duty to secure to everyone certain minimum rights and facilities to enable the free development of his personality in the context of the conditions of social life". This formulation is particularly valuable in that the concept of protection of the private life personality places measures to assist younger adults in developing their social and personal life, and measures to assist older people (for example those with dementia) in maintaining theirs, on the same footing. It is therefore a concept that should, in Age Concern's view, be applied widely in challenging the assumptions that underpin age discrimination and in evaluating whether an even handed approach to the respective Article 8 rights of older people and younger adults is being pursued.

  Courts, notably in the Cowl v. Plymouth case, have made it clear that they expect disputes to be resolved, if possible without recourse to legal action. It will therefore become increasingly important that complaints procedures and similar dispute resolution mechanisms are able to consider human rights issues and to act in a manner which satisfies the requirements of Article 6(i). The need for training, advice and publicity about the implications of the Act therefore goes beyond the legal profession.

2.7  Is there a need for a Human Rights Commission?

  Age Concern has not reached a view about whether a Human Rights Commission is needed. However whatever measures are adopted need to address the following issues;

    —  The situation of users of independent sector services following the Leonard Cheshire judgment referred to above. Whilst local authorities may have to secure the European Convention rights of their clients through contracts with the independent sector it is difficult to see how this could be enforced. Older people entering homes are unlikely to have the knowledge, will or opportunity to challenge contracts that fail to secure their convention rights. Failure by a public authority to secure convention rights must also be challenged when the contract is agreed, at which time there will not be an individual "victim" who has suffered hardship as a result of the contract.

    —  If consideration of whether infringement of a human right is justified requires knowledge of the impact on the individual that goes beyond legal expertise, then oversight of the quality of judicial decision making solely within the legal profession and by legal professionals is insufficient. One possible solution might be an independent body, able to coordinate different areas of expertise and make recommendations, and able to comment on and inform Parliament about whether decisions made by the Courts are achieving the aims of the Act.

    —  There is a need for bodies other than Courts to take account of HRA in making decisions. Wide dissemination of information and advice about the Act, particularly within the public sector, is therefore important.

23 January 2003

14   This phrase is taken from a Strasbourg judgment, Botta v. Italy Back

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