Last week the Care Bill received royal assent. Let’s mark the occasion by reflecting on the successes that we have achieved, the changes to the social care system and the measures that will help older people with care needs to live with dignity.
One of the changes that is particularly positive was only agreed in the very final
stages of the parliamentary process. During the exciting-sounding ‘ping pong’ where the two Houses are required to agree each other’s changes to the Bill, a
Government amendment was accepted that closes a loophole in human rights law; a change that Age UK has campaigned for a number of years.
Currently, whether you are covered by the Human Rights Act when receiving care services depends on what that service is, how it is funded and who arranges it. Publicly funded or arranged residential care is covered. Privately arranged
and funded residential care is not. That means two people living in the same care home could have different levels of protection under the law. When it comes to domiciliary care, there is no direct coverage at all. This means that human rights abuses could be taking place with no option for redress.
Worryingly, we know that such abuses do occur. Lord Warner spoke of an example in a House of Lords debate where a woman in privately funded residential care was evicted because she gave an opinion on assisted dying that the care home management disagreed with (Hansard, 22nd July 2013: Column 1107). In terms of home care, the Equality and Human Rights Commission’s inquiry into home care in 2011 found evidence of serious human rights breaches including examples of individuals having to stay in bed for long periods with soiled incontinence pads because they had no control over the timing of care visits.
This was why Age UK launched its petition on closing the loophole earlier this year. In the space of a couple of weeks, 17,500 people had signed it and of these, 10,500 contacted their MP to call on the Government to protect older people’s rights. As was noted frequently in Parliament, there was a lot of public interest in this.
The journey to success was a rollercoaster. After the high of the Lords amending the Bill in their Report Stage, we then had the low of the Commons Committee Stage removing that amendment. A new amendment, suggested by the Joint Commission on Human Rights, was rejected by the Commons at Report Stage. However, a glimmer of hope was offered when Care Minister, Norman Lamb, said he recognised the groundswell of opinion and would look for a solution.
That solution was presented at ‘ping pong’ and represented a big win for our campaign. The Government amendment looked to close the loophole for anyone whose care is publicly arranged or paid for. This brings many of those receiving home care directly within the scope of the Human Rights Act for the first time.
There is still a group who remain unprotected, namely those in residential and domiciliary care where their care is both privately funded and arranged. The Government’s reasoning for this was that the Human Rights Act was never intended to extend into purely private arrangements.
This may seem disappointing but there is an important point to remember. Under the Care Act, self-funders will be encouraged to be assessed by their local authority in order to begin their spending towards the Dilnot cap on costs. As part of this, they will have the opportunity to ask their council to arrange their care for them, even when the individual is paying the full costs of that care, directly protecting their human rights for the first time.
For the remainder, we need a creative approach to ensure that their rights are protected when they receive care. Some would argue that as a private arrangement, if someone’s rights are being infringed then it simply a case of changing provider. But it is simply not enough to expect that market forces and consumer choice will act as a suitable remedy to abuses when we remember that this involves vulnerable people who may lack the physical or mental capacity to simply move to a new care home.
But for the meantime, this is a time to celebrate a big step in the right direction and an impressive win for Age UK and the other organisations who have been campaigning on this for some time. And if you were one of those who signed our petition, pat yourself on the back because it would not have happened without you.