Following the decisions in R (Sefton Care Association and others) v Sefton Council [2011] EWHC 2676 (Admin) and Forest Care Home Ltd and Others v Pembrokeshire County Council [2010] EWHC 3514 (Admin), local authorities are likely to be facing the prospect of more challenges by care home providers to cuts in fees as they struggle to reconcile the spiralling cost of home care with a finite budget.
In addition to the threat of such litigation, the Equality and Human Rights Commission (EHRC) has recently published its final inquiry report into older people and their human rights in home care (Close to home: an inquiry into older people and human rights in home care). Although the EHRC’s report recognises the pressure on local authorities to reduce costs in the current financial climate, it argues that as a minimum all people in receipt of publicly-funded home care should be protected by the Human Rights Act 1998 (HRA) and that the key issue is to get the balance right between cost and quality to make sure the human rights of older people are not compromised. Inevitably the EHRC’s recommendations, and particularly the suggestion that local authorities should undertake a monitoring process to ensure care home providers are complying with the HRA, will be an additional financial burden on a social care system that is already stretched.
Although the EHRC’s report acknowledges that many people receive care at home that respects and enhances their human rights, the inquiry uncovered areas of concern. The EHRC considers that many of these problems could be resolved if local authorities made more of the opportunities they have to promote and protect older people’s human rights in the way that:
- Home care is commissioned.
- Home care contracts are procured and monitored.
However, it is difficult to see how the recommendations that the report puts forward can be met by an underfunded care system at a time of government funding cuts.
The EHRC considers that an individual is less likely to have their human rights breached if local authorities changed their commissioning practices. In particular, the EHRC’s report suggests taking the following steps.
- Commissioning should be used to protect human rights effectively.
- Local authorities should understand their obligations under the HRA, in particular their positive obligations to promote and protect human rights. The inquiry discovered that local authorities had a “patchy understanding” of these obligations.
- Human rights should not just be superficially addressed in commissioning documents by reference to the principles of dignity, respect and independence; documents should refer to the duties of a local authority under the HRA.
- Although commissioning by some local authorities is driven by quality, the practice of other local authorities is to focus on price. There was evidence that some local authorities have reversed their marking schedule in a procurement exercise for awarding a contract to give price considerably more weight than quality. Inevitably, cost pressures lead to shortened care visits and to the quality of care that individuals receive.
- Terms for delivering home care should not be tightly defined and inflexible as otherwise the care provided is a “one size fits all” service that takes no account of an individual’s religious or gender preferences.
- When monitoring contracts, local authorities should not just focus on checking outputs and processes but should look at quality of outcomes for individuals, including human rights standards.
- There should be more investment in care workers. The report cites the lack of investment in care workers and the fact that their low pay and status is in sharp contrast with their level of responsibility and the skills that are required to provide quality home care.
- Service specifications should include (as some local authorities already do) a requirement for the provider to act as though they were carrying out a “public function” and/or as though they are a public body under the HRA. Such a clause could allow the local authority to sue the provider for any breach of their human rights obligations although it would not enable a service user to sue the care provider for a breach of their human rights.
- Throughout the procurement and contract management processes, local authorities should manage and monitor how well the home care they have commissioned is protecting human rights.
- Older people should receive better protection by closing the loophole in the HRA 1998 to bring contracted home care services within the scope of the HRA, in the same way as residential care. The loophole has arisen as a result of the decision in YL v Birmingham City Council [2007] UKHL 27, where the court interpreted “public functions” as excluding services provided by private and third sector care homes, even when they were under contract to local authorities.
- There should be better guidance on human rights for older people receiving care so that they know how their human rights should be protected; the EHRC proposes producing this guidance.
Although the recommendations in the EHRC report are laudable, it is difficult to see how they can be followed through in the current climate. What is apparent, both from the report and the recent court decisions, is that local authorities will continue to face tough decisions about the care services they can provide given the long-term pressure that they are already under as a result of insufficient funding, growing demand for care services as the population ages and the escalating costs.