Government overturns Human Rights Act liability for care providers

The government has narrowly won a vote to block the extension of the Human Rights Act 1998 to people who pay for their own care or use independent home care agencies.

Care minister Norman Lamb’s amendment to the Care Bill reverses a change made to the bill in the House of Lords, which would have enabled recipients of home care and self-funding residential care to challenge independent providers under human rights law.

In the debate on the bill on 21 January, 12 MPs voted with Lamb and 10 voted to retain the House of Lords’ amendment.

Lamb argued that the Human Rights Act “is about the relationship between the state and the individual” and “was not intended to apply to entirely private arrangements” such as that between a self-funding care recipient and their private care provider.

He said people in privately-arranged and funded care could challenge their provider though their contract, or through civil or criminal law if an offence was committed.

Those who received home care that was arranged by their council had Human Rights Act protection for the relationship between them and the local authority, he added.

Additionally, he said the Care Quality Commission’s (CQC) new fundamental standards would apply to all organisations registered with the inspectorate.

“The CQC will seek to ensure that all registered providers comply with the aims of the Human Rights Act in how it applies its inspection regime and how it uses its enforcement powers, including prosecution,” Lamb added. “The risk of prosecution is surely a greater fear than the risk of a claim under the Human Rights Act in a civil court.”

He argued that the House of Lords’ amendment would not provide any additional protection to care recipients. He said: “Supporters of the clause have not produced a body of cases where the absence of the provisions in the clause has led to people being denied justice. That suggests that the clause is being proposed, in a sense, as a sticking plaster to deal with other failings of the care system. That is the wrong approach in principle and in practice.”

But shadow care minister Liz Kendall said the House of Lords’ amendment would have given all care users equality under the law. She said: “There are clear gaps in the system, with some people receiving publicly funded care being able to seek redress directly through the provisions of the Human Rights Act, but others, in private or third sector-provided home care, not being able to do so.” She cited the case of a woman evicted form a care home after expressing support for the right to die as an example of someone who would have benefited from the extension Human Rights Act protection.