Government may give ground on calls to ensure care providers protect clients’ human rights

The government may give ground on calls to amend the law to ensure independent care providers protect the human rights of people they are supporting, the care minister has said.

In a House of Commons debate on the Care Bill yesterday, Norman Lamb said ministers would consider amending the legislation to make clear that council or NHS-commissioned service users were protected by the Act, regardless of who provided their care.

In January, the government overturned a House of Lords amendment that would have bound all providers of regulated adult social care services by the provisions of the Human Rights Act for all of their service users..

Currently, only public authorities, such as councils, and care homes, in respect of people whose care is arranged by the state, are bound by the Act.

Gap in the law

The Lords amendment had been designed to fill a perceived gap in the law by extending human rights protections to all people who arrange their own care, and those receiving home care arranged by the state.

However, in overturning the Lords amendment in January, Lamb argued that the Human Rights Act was only designed to govern the relationship between the state and individuals, not private arrangements, such as those between a self-funder and a service provider. Lamb also claimed that all people whose care was arranged by the state were protected by the Human Rights Act through the liability on public authorities.

In yesterday’s debate, the last but one day of the Care Bill’s passage through the Commons, Labour’s shadow care minister Liz Kendall and Lib Dem former care minister Paul Burstow moved an amendment that would extend Human Rights Act protections to all users of care commissioned by councils and the NHS. Unlike the Lords amendment, this would not have protected self-funders. Lamb said he “sympathised” with Kendall and Burstow’s amendment but claimed that people in care commissioned by public bodies were already protected by the Human Rights Act.

The amendment was defeated by 280 votes to 208.

Lamb suggests concession

But Lamb suggested that the government would put forward an amendment to clarify the issue when the bill returns to the Lords for final consideration following its third reading in the Commons today.

“I recognise the strength of feeling on the matter, so I expect that it will be discussed further in the final stages of the bill’s passage in the [House of Lords],” said Lamb. “In the meantime, I am prepared to reflect on the points made and consider whether legislative clarification might be justified in order to make the government’s position clear.”

Burstow also failed in his bid – backed by social work leaders and adult protection charities – to amend the bill to introduce a power of entry for practitioners in cases where abuse of a vulnerable adult was suspected but entry barred by a third party.

Some changes were made to the Bill through amendments tabled by the government. The bill will no longer prohibit councils from outsourcing their functions to arrange direct payments from people – a change lobbied for by local government leaders, said Lamb.

Reablement won’t count towards cap

Another amendment will allow for regulations to be made under the bill to exclude certain types of services for which local authorities do not charge from personal budgets, held by council-funded service users, or independent personal budgets, held by self-funders looking to have their care costs capped.

Notably, this will cover reablement services, which councils must provide free to people who are eligible for six weeks. This means that reablement services will not count towards the cap on people’s care costs, beyond which their council will become liable for their care.

The amendment answers a fear among councils that they would have to, in effect, pay for such services twice for the same people – once when the person receives it and again by having this count towards the cap.

Following its third reading in the Commons, the bill now enters the ping-pong stage, where it shuttles between the two Houses of Parliament until both agree a final version of the text. It will then receive Royal Assent and become law, a year before its expected implementation in April 2016.