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The Care Bill

For many people, growing older is something to look forward to, meaning more holidays, day trips and time to spend with loved ones. Yet, for others, old age is a daunting and worrying time. Whilst we all hope for a long and happy retirement, illness or disability can mean that this time is spent in a care home, or receiving care and assistance in one’s own home.

Whilst thousands of care providers give impeccable service, some do sadly fall short of the necessary standards; indeed, only this week the Telegraph has reported that one in three care homes fail their Care Quality Commission inspections. 

With this in mind, it is notable that earlier this week the House of Commons Committee considering the Care Bill disagreed to the inclusion of Clause 48.  

In short, this clause states that all those who provide social care are exercising a function of a public nature. If this came into force, the providers would thus be governed by s6 Human Rights Act, and therefore, would be bound to ensure that they uphold the human rights encapsulated in the European Convention on Human Rights, of those to whom they are providing care. 

The importance of this clause is due to a lacuna in the law, first highlighted in the case of YL v Birmingham. This case held that a privately owned care home, providing care to a publicly funded resident does not fall into the definition of ‘public authority’ in s6, and therefore, such residents do not receive the protection of the HRA against their care provider.

This problem was to some extent combated by s145 Health and Social Care Act 2008, which stated that a person who provides accommodation, and nursing or social care in a care home, in an arrangement with the Local Authority is subject to s6 HRA – and thus cannot act in a way which is incompatible with HRs. 

However, there is still a fundamental lack of HR protection for those who fund their own care, and those who require care which is non-residential. Clause 48 aims to remedy this, to give a form of legal redress for Human Rights violations, to those who receive regulated social care, be it publicly or privately arranged, and residential or otherwise.

The bill will go back before the House of Commons next month.