DRC: Legal loophole must be closed to protect older and disabled people placed in private care homes

The Disability Rights Commission (DRC) is calling for an urgent closing of a legal loophole which fails to offer adequate human rights protection to disabled or older people if their local authority places them in a privately owned care home.

Responding to today’s decision by the House of Lords to dismiss the appeal in the case of YL v Birmingham City Council (1) on the grounds that private care homes contracted by a local authority do not come under the Human Rights Act, Sir Bert Massie, Chairman of the DRC, said:

“The situation is untenable and has major implications for thousands of vulnerable people across Britain. Many local authorities rely on care placements in the private sector. This ruling will cement a fundamental inequality in disabled and older people’s rights; those in care homes run by local councils have legal rights to human dignity, those ‘contracted out’ will not.

“Nine out of ten care homes are privately run. All too frequently we hear stories of residents who have been abused, restrained or neglected. For the care industry to be outside the legal framework of meeting basic human rights can only be described as perverse.”

Although not expressing his opinion, one of his Lordships, Lord Neuberger, acknowledged that it may be thought desirable for residents in private care homes to have Human Rights Act protection against the homes’ proprietors. His Lordship said that, if this was the case, it should be clearly spelt out, and be clear whether such rights are to be enjoyed by all residents of such care homes, or, just those wholly or partly funded through public funding.

Sir Bert continued: “Many public services are now run by the private and voluntary sector. The dismantling of that public provision should not diminish a citizen’s rights to basic, fundamental freedoms. Further discussions should now take place about how these rights can best be guaranteed.”

The appeal was supported by the British Institute of Human Rights (BIHR), JUSTICE, Liberty, Help the Aged, Age Concern and the Secretary of State for Constitutional Affairs.

The British Institute of Human Rights said today:

“We are stunned by this decision. By exempting private care homes from the Human Rights Act when they house people under contract to a local authority, the House of Lords has undermined the fabric of human rights protection in the UK.”

The DRC has intervened on other residents’ cases to test where public authority’s duties to abide by the provisions of the Human Rights Act extend to if their services are contracted out to the private sector (2).

The DRC has launched The Disability Agenda which calls for major reforms to the social care system. Go to www.disabilityagenda.org

Notes to Editors

Facts

Of the 267,000 local authority supported placements, just 27,820 (10%) are in council-run care homes. (Commission for Social Care Inspectorate 2006).

1. YL is an 84 year old woman with Alzheimer's disease. Since January 2006, she has lived in the nursing home which is owned and run by a private company although her care and accommodation was arranged and paid for by the local authority, in accordance with its statutory duties. In June 2006, the company wrote to YL's daughter to give 28 days notice to terminate the arrangement.
2. The DRC intervened in the case of Johnson and others v London Borough of Havering. The Council, which owns and controls the residential care homes in which Mrs Johnson and two other claimants reside in, had taken a decision to transfer the homes to a private sector provider. Mrs Johnson was concerned that her rights under the human rights act would no longer be applicable.
In January 2007, the High court held that a private care home providing accommodation contracted by a local authority, would not be providing a public function under the terms of section 6(3)(b) of the Human Rights Act (HRA) 1998, and are therefore not bound by the Act.

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