Care Bill [HL]

Lord Willis of Knaresborough Excerpts

Wednesday 16th October 2013 Lords Chamber

[Lord Low of Dalston (CB)]

My Lords, I shall speak also to Amendments 138A and 138B, which are in my name in this group. I shall get those amendments out of the way first, as the debate is likely to focus principally on Amendment 83. Clause 75(6) says that anything done or not done by a third party authorised to carry out a particular function is treated as done or not done by the local authority. In effect, the local authority is solely responsible for the third party’s acts or omissions, subject to a couple of exceptions in subsection (7).

The Joint Committee on the draft Care and Support Bill recommended an amendment to make clear that a person with delegated authority is subject to the same legal obligations as the local authority itself. This reflected concerns that there should be a clear chain of accountability by which the individual could hold the third party, not just the local authority, responsible if their rights were infringed. The Government have contended that the clause already provides for continued accountability. They said that the local authority,

“will remain liable for the proper discharge of that function”.

This misconstrues what the Joint Committee was recommending. The Government are viewing accountability solely in terms of the relationship between the third party and the local authority. Subsection (6) precludes the possibility of the individual seeking redress from the third party, so it does not accord with the Joint Committee’s recommendation. The Minister in Committee said that care providers with delegated functions must carry them out in a way that complies with the Human Rights Act 1998 and that any failure to do so will be a failure by the local authority. That is not the same as the third party being subject to the Human Rights Act; the third party would be failing in its obligations to the local authority, but to no one else. The Minister effectively conceded as much when she said:

“By that device, the Human Rights Act would end up having an effect on what those third parties could do, even if they were not themselves directly responsible”.—[Official Report, 29/7/13; col. 1587.]

The noble Earl, in his letter to Peers following Committee stage, confirmed that individuals will have recourse only to third-party dispute resolution procedures or the local authority’s complaints process.

Without these amendments the individual will have no remedy against, for example, a private care home delivering poor service, or a private company failing to carry out proper assessments. We therefore need these amendments to give effect to the Joint Committee’s recommendation that a person with delegated authority should be subject to the same legal obligations as the local authority.

On Amendment 83, I set out the arguments in detail in Committee and shall not repeat them at length here. The matter is really quite simple and straightforward and can be stated briefly. The Human Rights Act 1998 applies to all public authorities and to other bodies when they are performing functions of a public nature. That means that it should apply to all providers of care, given that the provision of care is a public function. However, the matter was thrown into doubt in 2007 by the case of YL v Birmingham City Council, which held that care home services provided by private and third-sector organisations under a contract with the local authority did not come under the definition of “public function” for the purposes of the Human Rights Act. This meant that thousands of service users had no direct remedy against their care provider for abuse, neglect or undignified treatment. Though the public body commissioning the care remained bound by the Human Rights Act, that was of little practical value to the individual on the receiving end of poor or abusive treatment, or the person given four weeks’ notice to leave because they had antagonised their provider, about whom the noble Lord, Lord Warner, told us in Committee.

Accordingly, Section 145 was introduced into the Health and Social Care Act 2008 to clarify that residential care services provided or arranged by local authorities are covered by the Human Rights Act. There has been concern that this Bill would undo Section 145 by repealing Sections 21A and 26 of the National Assistance Act 1948, under which persons were placed in residential care and through which Section 145 has operated. However, the noble Baroness, Lady Northover, responding to the debate in Committee, set minds at rest on that when she provided the assurance that,

“there will be a consequential amendment to Section 145 of the Health and Social Care Act 2008 so that there will be no regression in human rights legislation”.—[Official Report, 22/7/13; col. 1118.]

However, there remains concern that Section 145 does not cover all care service users, or even all residential care service users. It only protects those placed in residential care under the National Assistance Act. That being so, it is anomalous not to treat residential care provided under other legislation and domiciliary care in the same way.

The noble Baroness, Lady Northover, reflecting the position put to the Joint Committee on the draft Care and Support Bill, further stated that the Government’s position is that all providers of publicly arranged health and social care services, including those in the private and voluntary sectors,

“should consider themselves to be bound by the duty imposed by section 6 of the Human Rights Act 1998 and not act in a way that is incompatible with a Convention right”.

However, there are two things wrong with this. First,

“should consider themselves to be bound”,

is not the same as “covered in law”. Secondly, the Joint Committee was not convinced. It concluded that, as a result of the decision in the YL case, statutory provision is required to ensure this. As I said in Committee, I have seen a letter in which it is stated that the Government’s position is that care providers are covered, and should not just “consider themselves to be bound”. However, the House of Lords in YL said that they were not and the Joint Committee was not convinced either. Given such uncertainty, it is surely essential that the matter is put beyond doubt in legislation and Amendment 83 would achieve this by deeming that all those providing social care services regulated by the CQC are exercising a public function for the purposes of Section 6 of the Human Rights Act.

The amendment would also include those who are eligible for care but who, due to means testing, have to arrange and/or pay for their own care—so-called “self funders”—and therefore currently lack the full protection of the Human Rights Act. To date, it has been the case, at least for those who were found to be eligible for care in their own home, that the obligation for the local authority to arrange care regardless of the person’s resources provided them with a degree of protection under the Human Rights Act. However, the changes to the system of arranging care to be introduced by the Bill weaken this protection. My amendment follows the approach of the Joint Committee and, if accepted, would provide equal protection to all users of regulated social care regardless of where that care is provided and who is paying for it.

The Government believe, as the Explanatory Notes to the draft Bill make clear, that protection under the Human Rights Act extends to care arranged by a local authority, even if it is self-funded, but the Joint Committee does not accept that this does not require explicit statutory provision. However, regardless of this view, it makes the point that it does not address the situation of self-funders, who arrange their own care and support. The Government, they say, will need to consider whether it is right that, of all adults in need of care, only this group should lack the protection of the Human Rights Act.

Given the manifold ambiguities and uncertainties surrounding this question, surely it is right to take this opportunity of putting the matter beyond doubt, as my amendment would do. What reason can the Government possibly have for resisting it, when all it does is to spell out in words of one syllable in the Bill that to which the Government have no objection—indeed, already believe to be the case—but which is subject to so much doubt in everybody else’s mind? I beg to move.

[Lord Willis of Knaresborough (LD)]

My Lords, I support Amendments 138A and 138B, but will not add to the excellent comments of the noble Lord, Lord Low. I speak in particular to Amendment 83.

I apologise to your Lordships for not having made any comments in Committee but, as I have pointed out, I was away from the House on the orders of my wife. In supporting Amendment 83, I acknowledge the excellent supporting brief from the Equality and Human Rights Commission. In particular, I thank my noble friend Lord Lester of Herne Hill, who sadly cannot be here today, for his considerable guidance.

The amendment stems from a failure by successive Governments to heed the recommendations of the Joint Committee on Human Rights and the Joint Committee on the draft Care and Support Bill to legislate to tackle the problem created by the majority decision of the Law Lords in 2007 in the case of YL v Birmingham City Council.

In YL, the issue was whether a care home, such as that run by Southern Cross Healthcare Ltd, was performing functions of a public nature for the purposes of the Human Rights Act when providing accommodation and care to a resident such as Mrs YL under arrangements made by Southern Cross with Birmingham City Council under Sections 21 and 26 of the National Assistance Act 1948.

The Law Lords decided by three votes to two—the noble and learned Lord, Lord Bingham, and the noble and learned Baroness, Lady Hale, dissenting—that they were not performing a function of a public nature. However, anyone reading the dissenting judgments of the noble and learned Lord and the noble and learned Baroness would understand why the majority ruling appeared contrary to the objective and purpose of the Human Rights Act. The previous Government thought that YL was wrongly decided and I assume that the present Government share that view. It would be useful if the Minister could confirm that that is the Government’s position.

The previous Government then sought to resolve the problem by intervening in test litigation to clarify or overturn YL, but that did not prove possible. The JCHR twice recommended remedial action, but the previous Government refused to take such action or to support the efforts of Andrew Dismore MP, as the chair of the JCHR, to do so by means of a Private Member’s Bill.

[Lord Wills (Lab)]

I am very grateful to the noble Lord for giving way and I hesitate to interrupt him, because I agree with almost everything that he is saying, but on a factual point he is wrong. The previous Government—and I was the responsible Minister—did not disagree. We were trying to find a way of resolving this and we ran out of time. It is not that we disagree with it; we were wholly in agreement with the efforts made by Andrew Dismore. We were simply trying to find a robust way of dealing with that particular problem and we ran out of time.

[Lord Willis of Knaresborough]

I thank my former honorary opponent for that clarification and I certainly would not wish to contradict him. The reality is that the previous Government did, in fact, try to find a way out of this judgment and to correct it in a way which they thought would be beneficial for the people of England and Wales. Instead, they introduced an amendment to the Health and Social Care Act 2008 to extend human rights protection to those receiving residential care arranged by a public authority. The amendment did not extend, as the noble Lord, Lord Low, rightly said, to home care services, even though they were provided under a similar statutory framework. It is that gap that this amendment is designed to fill. Surely there is precious little difference between a local authority securing care services of an individual in a residential care setting or in someone’s own home. That is the kernel of this particular problem.

The Department of Health has explained the Government’s position in Written Answers to the JCHR. It said that,

“all providers of publicly arranged health and social care services, including private and voluntary sector providers, should consider themselves to be bound by the duty imposed by section 6 of the Human Rights Act 1998, and not to act in a way which is incompatible with a convention right”.—[Official Report, Commons, 17/7/12; col. 702W.]

We are told that:

“The case law supports a broad application of Section 6(3)(b) and provides that individual factors should be considered in each case. As such YL was a case on the particular facts, and it does not necessarily follow that the reasoning in that case will be applied to other social care settings”.

I find that very difficult to understand. Can the Minister explain the department’s judgment in that way?

The factual settings in YL in favour of a finding that Southern Cross was indeed performing a function of a public nature could not have been stronger, and yet were rejected by the majority so that legislative intervention became necessary. The department says that all providers should consider themselves bound by a Section 6 duty, but the law is entirely uncertain as it stands whether they are required by law to do so.

The department continues in its letter to JCHR:

“The Government do not therefore consider that an amendment to the Human Rights Act 1998 is necessary.”

But Amendment 83 is not seeking to amend the general test in Section 6 of the HRA, but to make it clear that someone who provides regulated social care is to be taken for the purpose of Section 6 (3)(b) to be exercising functions of a public nature in doing so. It is hard to see how it could be otherwise. The department continues by saying that the government position remains that:

“Any amendment to the Human Rights Act in relation to third sector and private providers … risks casting doubt about the interpretation of the Human Rights Act”.

However, the uncertainty is created not by this amendment but by the decision in YL, and by the fact that the amendment made by the previous Parliament was too narrow.

The Joint Select Committee on the draft Bill, chaired by Paul Burstow MP, included strong membership from all sides of the House. The committee’s report, published on 19 March, considered the Government’s arguments with great care at paragraphs 280 to 292, and concluded that the present amendment is absolutely necessary.

I therefore hope that the Minister will have had discussions with his ministerial colleagues and officials and will be able to accept the amendment in the name of the noble Lord, Lord Low, without the need to test the opinion of the House.

[Lord Hope of Craighead (CB)]

My Lords, I will say a few words in support of Amendment 83 in the name of the noble Lord, Lord Low. Before I say anything I will follow the example of the noble Lord, Lord Willis, and apologise for not having taken part in proceedings on this Bill before. As the Minister may know, I have recently returned from a period of disqualification, which has now been lifted on my retirement from the UK Supreme Court, so I am now able to speak, which I was not able to before. I thought I might contribute just a few thoughts to this debate against the background of that experience.

My first point is that Section 6(3)(b) of the Human Rights Act is one of the few provisions in what was an excellently drafted Act which, in my experience, judges have found rather difficult to apply in practice. The reasons for this were explained by the noble and learned Lord, Lord Neuberger, in YL. He made the point that any reasoned decision about the meaning of that phrase,

“functions of a public nature”,

risked falling foul of—as he put it—circularity, preconception and arbitrariness. The words are quite imprecise, so one has to search for some kind of policy guidance as an aid to their interpretation. There may be a whole variety of factors in one case taken with another that have to be brought into account as one tries to reach an answer—and in practice, answers are quite hard to predict.

With great respect to the noble Lord, Lord Willis, it is not helpful to ask at this stage whether YL was wrongly decided; we have to take the decision as we find it. That is how the law works. Of course, it is always open to Parliament to take a different view and judges—and, I am certain, noble Lords in that case—appreciate that entirely, as the noble Lord, Lord Neuberger, did for a reason I will come to in a moment. We have to assume that the judges in the lower courts will follow the decision in YL if other cases come before them, and it may not be all that easy for the Supreme Court—if the issue comes back before it in some future case—to depart from the basic reasoning in YL. I therefore suggest that one has simply to approach these issues on the basis that YL is there, and proceed accordingly.

The solution to the problem which the noble Lord, Lord Neuberger, indicated in his speech, at the very end of quite a long judgment, was that if the legislature considered it appropriate that residents in privately owned care homes should be given convention rights protection against the proprietors, it would be right for the legislature to spell that out in terms and make it clear that the rights should be enjoyed by all such residents. The words “spell it out”, which I think the noble Lord, Lord Willis, used, make the point that one has to have something which puts the matter plainly on the record and which gets over the difficulty created by the very broad reach of the subsection in Section 6.

As we have heard—I do not need to go over the ground again myself—an amendment was made to the 2008 Act which did not extend to regulated home care services, so there is a gap. There are, therefore, two questions. First, should the gap be filled? Secondly, which is a question for the Minister, how should that be done?

As far as the first point is concerned, as I understand the progress of events, and my reading has indicated this, there is not really any dispute about this because the Department of Health’s position, as explained to the Joint Committee on Human Rights, is that,

“all providers of publicly arranged health and social care services … should consider themselves to be bound by the duty imposed by section 6 … not to act in a way which is incompatible with a convention right”.—[Official Report, Commons, 17/7/12; col. WA 702.]

I think it was also suggested that it would not necessarily follow that the decision in YL, which was about a care home, would apply to other social care solutions.

I see a difficulty with that approach. Comments of the kind that were made, that people should consider themselves bound by a convention right, however well intentioned, do not have the force of law. They could not be relied upon, for example, in a court to guide a judge about the meaning of Section 6(3)(b) in the particular context. Therefore, they leave the law in a state of uncertainty because they do not have the force of law, and they have no relevance to a decision that the court would have to take.

If one takes the example of a provider who is faced with a claim from a person who is in need of care and not receiving it or whose rights are being infringed, that provider will probably have to seek legal advice as to what should be done. Legal advice would take the provider back to YL, and we find ourselves once again faced with the gap to which other speakers have drawn attention. It is perfectly true that YL was a decision on its own facts, but I respectfully suggest that the implications of the decision go wider than that. If you read the judgments, there is a distinction between private, profit-making bodies on the one hand and state or government-owned bodies with public functions on the other. One can debate how far private and profit-making bodies may be caught by the section, but that is the area which is creating difficulty.

The fact that that body was regulated, which was the situation in YL, was not determinative. The fact that we are dealing with social care which is regulated is not the answer to the problem. That is where the gap now confronts us. I would respectfully suggest, in support of the amendment of the noble Lord, Lord Low, that the answer is to do as the noble and learned Lord, Lord Neuberger, urged us to do at the end of his judgment and to spell it out in terms that a person who provides regulated social care is to be taken to be exercising a public function.

There is another point. A failure by Parliament to grasp this opportunity now and to make it clear will be noticed. There is a risk that, if that opportunity is not taken by Parliament now, courts may take this as a sign that Parliament is content with the law as it stands and may be understood to be on the basis of YL.

I absolutely appreciate that there is a question for the Minister whether this amendment would have wider implications. From my own experience, and having read the judgment in YL too, I am quite certain that thought passed through the minds of the judges. There is reference, for example, to schools and other institutions; the judges may have considered, “If we make a pronouncement about this, it may affect other circumstances and situations”. There is a difference, of course, between a judge making that kind of pronouncement and Parliament’s putting forward or putting into a measure a precisely targeted measure which deals with a particular problem. It is the difference between a sledgehammer, I would say, to crack a nut, and a rapier which deals with a particular issue. I do not see that there is any real risk that, by dealing with the matter in the targeted way that the amendment of the noble Lord, Lord Low, seeks to do, it will be taken as a signal in the courts that there is some wider reach in Section 6(3)(b) from that which was being discussed in YL.

It is a difficult issue, but I respectfully suggest that it has to be addressed now and that there is a real risk that, if we do not do it now, it will give rise to real problems later. I warmly support the initiative of the noble Lord, Lord Low.