Care Bill 2013 - House of Lords Report Stage
Care Bill 2013
House of Lords Report stage Briefings
Briefing One - Briefing in support of amendment to clarify that the Human Rights Act 1998 extends to regulated care services
The Commission’s analysis
The Equality and Human Rights Commission’s (the Commission’s) analysis of the Care Bill 2013 (the bill) suggests that it would give better protection of rights under the European Convention on Human Rights (ECHR) if amended to provide greater clarity about the application of the HRA to regulated care services. In the Commission’s analysis, Lord Low’s proposed amendment would achieve this clarity.
The reform of care and support legislation presents an important opportunity to confirm that regulated providers of care services in the private and third sector are performing public functions within the meaning of Section 6(3)(b) of the Human Rights Act 1998 (HRA). The Commission notes that this approach was also recommended by the Joint Committee on the draft Care and Support Bill.
Clause 107 of the Care Bill provides an order-making power allowing another enactment to be amended or repealed. It is expected that Ministers will use this power to repeal sections of the National Assistance Act 1948 (NAA) which set out the current statutory framework for arranging care and support. The Commission’s analysis is that repealing these parts of the NAA would remove human rights protection from care home residents whose care is publicly arranged. For this group, HRA protection is currently secured by Section 145 Health and Social Care Act, which cross-refers to Section 29 NAA. Lord Low’s amendment would ensure that care home residents in England retain the protection of the HRA.
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Briefing Two - Briefing in support of amendment to introduce a power of access in specified circumstances
The Commission’s analysis
The Equality and Human Rights Commission’s analysis of the Care Bill suggests that the human rights of persons at risk of abuse would be better protected by amending the bill to provide a power of entry for local authority representatives, where a third party is refusing access to a person who is thought to be at risk of abuse and neglect. A power of entry with appropriate safeguards, combined with the proposed duty of local authorities to make enquiries, would enable more effective interventions in response to allegations or suspicions of abuse and neglect. The Commission therefore supports the amendment of the Care Bill to include 42 “Power of Access” as drafted in our briefing.
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Briefing Three - Briefing in opposition to Earl Howe's amendments 145, 146 and 149 relating to assessment of local authority adult social care commissioning
The Commission's analysis
The Commission's analysis is that the Care Bill presents an important opportunity to ensure that local government commissioning of care and support is effectively regulated. Evidence submitted to our formal inquiry into older people and human rights in home care (‘Close to Home’) suggested that the commissioning of adult social care was no longer being effectively regulated.
As currently drafted, the Care Bill would allow the CQC to conduct regular performance assessments of adult social care commissioning through periodic reviews, providing a framework for independent oversight of local authority performance.
The Commission understands that the Government is moving this amendment because it believes the provisions in the Health and Social Care Act 2008 enabling the options of special reviews or investigations will be sufficient to keep local authority adult social care commissioning under scrutiny.
The Commission’s analysis is that the human rights of people receiving care would be better protected by retaining the requirement under the Care Bill as currently drafted that CQC should conduct regular periodic reviews of local authorities’ commissioning of adult social care. If this amendment is adopted CQC will only be able to conduct periodic (routine) reviews of adult social care providers, but not of commissioners. This would leave a central element of the social care delivery system without regular independent scrutiny. In our analysis, routine reviews would raise the standards of adult social care commissioning practices and would result in higher quality services which better protect the human rights of care service users.
In the absence of routine scrutiny through periodic reviews, the CQC would be unable to identify thematic trends or poor commissioning by individual authorities that indicate the need for a special review or investigation.
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Last Updated: 17 Oct 2013