Legislative Scrutiny: Crime and Security Bill; Personal Care at Home Bill; Children, Schools and Families Bill - Human Rights Joint Committee Contents


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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