2 Personal Care at Home Bill
| Date introduced to first House
Date introduced to second House
Current Bill Number
Previous Reports
| 21 November 2009
13 January 2010
HL Bill 23
|
2.1 This is a Government Bill which was introduced to the
second House, the House of Lords, on 13 January 2010. Baroness
Thornton has made a statement of compatibility under s. 19(1)(a)
of the Human Rights Act 1998. The Bill received its Second Reading
on 1 February 2010 and began its Committee Stage on 22 February
2010.
Background and Purpose
2.2 In England, the primary responsibility for provision and
commission of social care services rests with local authorities.
At present local authorities can charge for services, including
personal care. The Secretary of State has the power to make regulations
which will require certain services to be provided at home free
of charge for up to six weeks. This Bill amends that regulation
making power and permits the Secretary of State to require local
authorities to provide personal care free of charge, at home,
for an indefinite period.
2.3 In its social care green paper, Shaping
the Future of Care Together, published in July 2009, the Government
rejected a fully-tax funded system to pay for a basic level of
social care for all, according to need.[139]
In his speech to the Labour Party conference, shortly afterwards,
the Prime Minister committed to introduce free personal care for
all people in England who had the "highest needs". He
referred to the need to support and fund an increasingly ageing
population and the needs of those with dementia and said:
The people who face the greatest burden are too often
those on middle incomes who have savings which last a year or
two, but then they will see their savings slip away. And the best
starting point for our National Care Service is to help the elderly
get the amenities to do what they most want: to receive care and
to stay in their homes as long as possible. And so for those with
the highest needs we will now offer in their own homes free personal
care.[140]
Explanatory Notes and Human Rights
Memorandum
2.4 The Explanatory Notes accompanying the Bill
provide an explanation of the Government's views on compatibility
at paragraphs 19 - 26. The Minister wrote to the Committee on
27 November 2009 enclosing a separate Human Rights Memorandum
which set out the Government's view on compatibility with the
right to enjoy Convention rights without discrimination (Article
14 ECHR) in greater detail.[141]
We wrote to the Minister to raise a few additional questions about
compatibility with the human rights obligations of the United
Kingdom, and specifically, about the Government's consideration
of the UN Convention on the Rights of Persons with Disabilities
and the International Covenant on Economic, Social and Cultural
Rights.[142] The Minister
of State for Care Services, Phil Hope MP provided a full response
on 29 January 2010, for which we are grateful.[143]
We welcome
the Government's decision to provide us with a separate Human
Rights Memorandum in this case. The additional information which
it provided about the Government's analysis helpfully reduced
the number of questions which we decided to follow-up in our correspondence
with the Minister. However, in the future, we encourage Government
departments to follow the example of those, such as the DCSF,
which have encompassed broader human rights considerations relating
to a Bill than those relating to the ECHR (including in support
of the Government's position) in their Human Rights Memoranda.
Significant human rights issues
2.5 We consider that the Bill raises three significant
human rights issues:
(a) The extent to which the Bill is a human rights
enhancing measure;
(b) Whether the Bill introduces enforceable public
service guarantees which assist the K to meet its human rights
obligations; and
(c) Whether the proposals in the Bill - which propose
to distinguish between those who need personal care at home and
those who live in residential care - are compatible with the right
to access Convention rights without discrimination.
2.6 A number of organisations wrote to give us
their views on these issues. We are grateful to those who submitted
evidence. Where their submissions have not previously been published,
we publish them with this report.
(A) A HUMAN RIGHTS ENHANCING MEASURE?
2.7 During the second reading of the Bill in
the House of Commons, the Secretary of State for Health explained
that this Bill was designed to ensure people "receive intensive
support to prevent them from developing more serious needs".
He went on to explain that the Government's aim in introducing
the Bill was to help people "remain healthy and independent
in their own homes".[144]
He added that it was important to create a system which allows
people to live independently.[145]
2.8 We have considered the need to respect the
dignity of older people and the importance of independent living
for people with disabilities on a number of occasions. For example,
in our report on the rights of adults with learning disabilities,
we considered the importance of independent living and the rights
outlined in the recently ratified UN Convention on the Rights
of Persons with Disabilities. Article 19 (Living independently
and being included in the community) of the UN Disability Rights
Convention provides that States must:
[…] recognize the equal right of all persons
with disabilities to live in the community, with choices equal
to others and shall take effective and appropriate measures to
facilitate full enjoyment by persons with disabilities of this
right and their full inclusion and participation in the community.
2.9 In our report we welcomed the Government's
commitment to the principle of independent living, but stressed
that independent living must not be confused with situations where
people with disabilities have been moved to supported living in
the community without adequate support.[146]
In our report on the rights of older people in healthcare, we
considered a range of rights which must be protected as people
age to ensure that individuals are enabled to live with dignity
and respect, including common law rights and international human
rights law.[147]
2.10 We have welcomed in principle the Government's
commitment to independent living. Measures taken to meet that
goal - including those proposed in this Bill - if properly implemented
and capable of meeting their policy objectives, are capable of
enhancing the ability of the United Kingdom to meet its human
rights obligations.[148]
2.11 The Equality and Human Rights Commission
told us that the social policy approach in the Bill was supported
by a number of international human rights instruments, including
the right to respect for private life (Article 8 ECHR), Article
19 of the UN Convention on the Rights of Disabled People and the
UN Principles for older persons which specify that "older
people should be able to reside at home for as long as possible".[149]
2.12 We wrote to the Minister to ask for further
information on the Government's consideration of its wider human
rights obligations. The Minister explained that the Government
did not consider that these proposals engaged the rights to health,
the right to social security and the right to an adequate standard
of living in any meaningful way. He provided us with a more detailed
overview of the Government's consideration of the Bill's proposals
with the UN Convention on the Rights of Persons with Disabilities.
He explained:
The Government's whole approach to community care
services - of which this Bill forms a part - is informed by the
provisions of the UN Convention on the Rights of Persons with
Disabilities and in particular Article 19 of that Convention which
is focussed on independent living and the right of persons with
disabilities to be included in the community.
2.13 Although there may be a
number of complex financial and policy debates around the cost
of this Bill or its impact on other services, we consider that
in so far as the aim of this Bill is to increase the number of
people able to live independently, it is potentially a human rights
enhancing measure. We recommend that where departments consider
that a measure in a Bill has the potential to further the fulfilment
of the UK's human rights obligations, that those positive considerations
are described in the Explanatory Notes or any accompanying human
rights memorandum.
(B) ENFORCEABLE ENTITLEMENTS AND
HUMAN RIGHTS OBLIGATIONS
2.14 In a recent article in The Guardian,
the Prime Minister outlined that the Government intended to ensure
that public services, including social care, were 'personalised'
and 'enforceable':
Our priority - now and in the future - is to offer
not a gamble but a guarantee, public services that are also personal
services tailored to people's needs, legally enforceable rights
for personalised education, health, social care and policing,
not just for some but for all.[150]
2.15 The approach adopted in this Bill permits
the Secretary of State to exercise enabling powers to place a
duty on local authorities to undertake certain functions in relation
to the provision of free personal care at home (Clause 1). Such
duties can ordinarily be enforced through a number of mechanisms,
including complaints to the Local Government Ombudsman and judicial
review.
2.16 In a number of recent reports, we have considered,
from a human rights perspective, legislative measures which help
to secure individuals' rights, including economic and social rights.
For example, in our report on the Child Poverty Bill, we commented:
there is a very big difference between a policy,
a choice by the Government to pursue a particular goal, and a
statutory obligation to pursue that goal. This difference between
a legal duty and a policy preference is significant even though
it remains the case that Parliament can always repeal the statutory
obligation and return it to the status of a mere policy, or aspiration.[151]
2.17 In this Bill, the Secretary of State is
empowered to introduce regulations which would impose a duty on
individual local authorities to provide certain services for free,
which would enhance the ability of certain individuals to continue
to live independently in the community (and which would support
the State's ability to meet the rights in, for example, Article
19, UN Convention on the Rights of Persons with Disabilities).
The Minister confirmed that any duty introduced would be as enforceable
as any other statutory duty on a local authority, both through
individual complaints to the Local Government Ombudsman and by
judicial review. The Ombudsman is empowered to investigate complaints,
report and make recommendations, including, in the case of local
authorities, recommendations of financial compensation. It is
envisaged that judicial review of the Local Government Ombudsman
will be in principle available.
2.18 We welcome the Minister's
clarification that the duty on local authorities to provide free
personal care will enforceable by individuals. For the reasons
we gave in our recent report on the Children, Schools and Families
Bill,[152] an
approach based on individual service entitlements is likely to
improve the UK's compliance with its human rights obligations
under treaties, such as the ICESCR and the UNCRPD, which require
the state to take positive steps in order to secure the rights
the state has solemnly undertaken, in the treaty, to guarantee.
(C) RESIDENCE AND DISCRIMINATION
(ARTICLE 14 ECHR)
2.19 The Bill enables the Secretary of State
to provide for free personal care at home, but not when an individual
is receiving residential care (for example, in a care home which
provides for personal care provided together with accommodation).[153]
The Government intends that only those in residential care homes
- not sheltered housing or extra-support housing - will be required
to pay for their personal care, or be subject to means testing
for support. We are grateful for the relatively full explanation
of the Government's position given in the Department's supplementary
memorandum. The Government rightly accepts that social benefits
are possessions for the purposes of the right to peaceful enjoyment
of possessions guaranteed by Article 1, Protocol 1 ECHR. Although
the Government has a broad margin of appreciation in respect of
social welfare, the European Court of Human Rights has consistently
reiterated that where social welfare schemes are provided, they
must operate without discrimination (in a manner compatible with
Article 14 ECHR).[154]
The Government also accepts that "housing status" may
be a status protected by Article 14 ECHR and that a justification
must be provided for the provision of free care to those living
in their own homes, or in supported accommodation, and those living
in facilities providing a combination of accommodation and care.[155]
The Government's view on justification is set out in both the
Explanatory Notes accompanying the Bill and its supplementary
memorandum:
the key aim of the policy behind the Bill is to enable,
support and encourage more people to avoid or delay entering residential
accommodation.
2.20 During the second reading debate, Mr Stephen
O' Brien MP, pointed out that this justification for the Government's
approach differed from the objective identified in the Impact
Assessment accompanying the Bill and the Prime Minister's previous
statements. He noted that the Impact Assessment provided that
the purpose of the Bill is to fund care "to those who need
it at the time of their need".[156]
The Government considers that the proposals are proportionate
because "they are aimed at those people in highest need -
the group of people who are most at risk of entering residential
care".[157] This
justification appears to address the distinction between those
who have critical needs (and will receive free support) and those
with less serious support demands (who will not). This justification
does not address why it is appropriate and justified to distinguish
between payments for those receiving domiciliary care in their
own homes, those receiving that care in supported housing and
those who will receive personal care in care homes providing a
residential service.
2.21 The Government's supplementary memorandum
accurately explains the broad margin of appreciation afforded
to States by both domestic courts and the European Court of Human
Rights when determining where to draw the line in relation to
social benefits. However, we consider that it is important that
the Government explain its justification for its approach to such
benefits as fully as possible, without reference to the broad
discretion offered by the courts, in order to allow for effective
parliamentary scrutiny of that justification. We wrote to the
Minister to ask for further information about the Government's
view on proportionality. He emphasised that the Government's goal
in these proposals was to support people to live independently
in their own homes for longer. He explained that in the Government's
view, people in residential care and people living at home were
not in analogous situations. Firstly, people living in residential
care would already have access to support as part of their residential
support and they would have been assessed as unable to live independently
without residential care (and so free personal care could not
support them to live independently in their own homes). Secondly,
this distinction was already recognised in existing charging arrangements,
where local authorities were generally required to charge for
residential care but had a discretion to provide other care services
(including personal care) free of charge. The Government told
us that this policy was limited to benefit those with critical
needs, because this group was the most likely to benefit from
free personal care. The Minister further explained that this approach
was based on the need to prioritise Government resources:
Competing demands on limited public resources mean
that the Government has to prioritise those resources. The first
priority for this government with this limited measure is to preserve
the independence of those who can be assisted to do so. This is
intended to be a first step towards creating a simpler, fairer
and more affordable care system for everyone.[158]
2.22 The Equality and Human Rights Commission
agreed with the Government's assessment. It told us that while
it was appropriate to consider whether these proposals were compatible
with Article 14 ECHR, it did not believe the Bill had a discriminatory
effect:
The policy of providing free personal care at home
appears to be reasonably and objectively justified as a proportionate
means of achieving and legitimate aim, and thus compliant with
Convention obligations. The direction of travel in community care
policy over the past two decades has been towards a greater recognition
of the value of autonomy and independent living. This approach
has been supported by a strong evidence base […][159]
2.23 On the other hand, the English Community
Care Association (which represents private providers of care)
said that distinguishing this policy on the basis of residence
could discriminate against older people who might be more likely
to require residential support as they aged. They argued that:
Basing the allocation of free services on a setting
as opposed to an assessment of need works against individual choice
and personalisation which is at the forefront of current government
policies.[160]
2.24 Sense raised a distinct discrimination argument
in its submission. They consider that these provisions will discriminate
against people who are deaf blind and have high or critical support
needs which were not personal care needs. This group of people
were isolated and vulnerable and needed communication and other
support to continue to live independently, but this Bill would
not recognise that providing support for those needs could help
a deaf blind person continue to live independently outside of
residential care.[161]
2.25 We consider that there
is no significant risk that these proposals will be considered
discriminatory and incompatible with the European Convention on
Human Rights (Article 1, Protocol 1 ECHR). In light of the complex
financial and political decisions surrounding the resources available
for social care, we consider that domestic courts and the European
Court of Human Rights are likely to give a broad margin of appreciation
to the Government. In so far as the aim of the proposals is to
prolong the period which an individual can live independently,
that aim is a legitimate and seeks to promote the rights of others.
In so far as the measures proposed appear to target those with
critical needs who may be supported to live independently in the
community for a longer period of time, we consider that the proposals
are unlikely to be considered disproportionate.
139 Cm 7673, 14 July 2009 Back
140
Prime Minister, Labour Party Conference, 29 September 2009. Back
141
Ev 1 Back
142
Ev 3 Back
143
Ev 5 Back
144
HC Deb, 14 Dec 2009, Col 665. Back
145
Ibid, Col 668. Back
146
Seventh Report of Session 2007-08, A life like any other?,
HC 73/HL 40, paras 71-77 Back
147
Eighteenth Report of Session 2006-07, The Human Rights of Older
People in Healthcare, HC 378/HL 156, Annex 2. Back
148
Seventh Report of Session 2007-08, A life like any other?,
HC 73/HL 40, paras 71-77 Back
149
EHRC, Eighth Report of 2009-10, above n. 105, Ev 53, para 7. Back
150
http://www.guardian.co.uk/politics/2010/jan/03/gordon-brown-education-aspiration
Back
151
Para 1.24. See also Children Schools and Families Report. Back
152
Eighth Report of 2009-2010, Legislative Scrutiny: Children,
Schools and Families Bill; Other Bills, HL57/HC369.paras.
1.9-1.19 Back
153
Clause 1 Back
154
See for example, Munoz v Spain, App 49151/07, 8 December 2009,
paras 47 - 50. In our correspondence with the Minister, the Government
is keen to stress its view that social security and social welfare
can be distinguished for human rights purposes from the provision
of social assistance. We note that it is now generally accepted
by the European Court of Human Rights that social benefits - contributory
or non-contributory - are possessions for the purposes of Article
1, Protocol 1 ECHR and that where they are provided they should
not be provided in a discriminatory manner. We consider that the
distinction between social welfare and social assistance is irrelevant
for this purpose, where social benefits are provided by the Government,
we consider that the Government must ensure that they are provided
in a manner which is not arbitrary or discriminatory. This approach
is in keeping with the analysis in the Explanatory Notes, which
accepts that the scheme must be justified as compatible with Article
1, Protocol 1 ECHR and Article 14 ECHR. For example, we note that,
in connection with the right to social security guaranteed by
the International Covenant on Economic Social and Cultural Rights,
the UN Committee on Economic Social and Cultural Rights has considered
that distinctions on eligibility for social assistance based on
place of residence may lead to a violation of that right. General
Comment No 19, The Right to Social Security, 4 February 2008,
E/C.12/GC/19, para 30. Back
155
Human Rights Memorandum, paragraph 11. Further evidence to support
the legitimacy of this aim is provided in paragraphs, 13 - 14. Back
156
HC Deb, 14 Dec 2009, Col 735 Back
157
Ev 2, para 16 Back
158
Ev 8 Back
159
EHRC, above n. 105, Ev 53, para 50. Back
160
Ev 39 Back
161
See: http://www.sense.org.uk/responses/2010 Back
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