Care Bill [Lords]

Meg Munn Excerpts

Monday 10th March 2014 Commons Chamber

[Paul Burstow]

I hope that the House will forgive my having a number of new clauses to explain in the time available to discuss part 1 of the Bill. I will try to crack on as quickly as possible to explain the thinking behind each of them. I will do so not in numerical order, but in order of importance, starting with the new clauses on which I particularly want to hear the Minister’s response.

First, I wish to discuss new clause 11, which deals with the Human Rights Act 1998 and its application to social care. The Act has enormous potential to improve the lives of those most vulnerable to human rights abuses in social care settings. People who are being provided care in their own homes or in care homes face risks in respect of their privacy, their family life, being safe and not suffering degrading treatment. Such matters are all very much at the heart of how we ensure that we provide dignified care.

I am sure that the Minister knows, as do other hon. Members, that a loophole has opened up in our law as a consequence of a judgment made by the courts some years ago. It arose in 2007 following the decision by the House of Lords in the YL v. Birmingham city council case. The Law Lords held that a private care home providing residential care services under contract to a local authority was not performing a “public function”, so its residents were excluded from the protections of the Human Rights Act. In practice, that means that domiciliary care users, or their families or carers, can complain to the care company, depending on the terms of their contract, but in many cases they will not be able to take their complaint any further. Contractual terms and conditions are important, but they can often fail to give the protection that we would want to see, and residents in care homes have no security of tenure and are often afraid to complain because of fear of eviction. Many people with care needs face additional challenges asserting their contractual rights, particularly if they lack the capacity to do so because of dementia or learning disabilities.

The decision that private and third sector care home providers were not directly bound by the Human Rights Act meant that thousands of service users had no direct legal remedy to hold their providers to account for abuse, neglect and undignified treatment, even though the public body commissioning those services remains bound in law by the Human Rights Act. There is need for change in this area. The loophole was partly closed by the previous Government, with cross-party support, through section 145 of the Health and Social Care Act 2008, which covers residential care services. However, under changes that this Bill will introduce, it will need to be reinstated by order, but there is a far better and more elegant way in which that could be done—by implementing new clause 11.

New clause 11 seeks to clarify the law so that all providers of publicly arranged or paid-for care are within the scope of the Human Rights Act. Service users who experience serious human rights abuses will then have direct means of legal redress. However, this is not just about going to law; it is about what goes on in the hearts and minds of those organisations and the attitude they take towards how they provide services, so the Human Rights Act has a part to play in culture change as well. For example, the Act has been successfully invoked in an argument about a local authority’s refusal to place a married couple in the same nursing home.

The Government have accepted that there is a loophole, and we very much welcome that. We raised the matter during consultation on and scrutiny of the draft Bill, and we offered up a suggestion, which their lordships adopted. In response to the Joint Committee, the Minister told us that organisations that were not covered by the Act should none the less consider themselves bound by it. Lord Hope, the recently retired Deputy President of the Supreme Court had this to say about that:

“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 the law”.—[Official Report, House of Lords, 16 October 2013; Vol. 748, c. 549.]

That is why we need to give it the force of law, which is what new clause 11 attempts to do. It puts back the law to where Members of all parties expect it to be, and ensures that a poor judgment by the court is corrected.

New clause 1 deals with the issue of power of access. Last week, I handed in a letter to the Prime Minister, setting out the case for the measure. It was signed by 602 organisations and individuals, including Age UK, Mencap, the National Autistic Society and many others with expertise in the area of adult safeguarding. They all share a common concern that there is a gap in the law when it comes to protecting vulnerable people who have the ability to make decisions for themselves but who are living in a home with someone else who is abusing them or neglecting them and who is denying them, because of their ability to exert their authority over that person, the ability to get the protection that they need. The Law Commission took that view in its review of mental capacity legislation, and the Equality and Human Rights Commission also took that view in its analysis of the legislation.

In our debates in Committee, my hon. Friend the Minister of State said that when officials were asked to provide the evidence behind their advice that the new power was unnecessary, there was an opaqueness surrounding the issue. There was not the necessary level of clarity to understand what powers could be used and in what scenario. I must say to the Minister that the scenarios that have been offered up to justify the position that there is no need for legislation do not address the circumstance that I and my new clause 1 seek to address. I am talking about someone who legally has capacity but who is under duress and unable therefore to exercise their individual right to seek protection. As a consequence of that, we need this power.

[Meg Munn (Sheffield, Heeley) (Lab/Co-op)]

I added my name to the right hon. Gentleman’s new clause. Does he agree that the Bill is putting in place a range of measures on new safeguarding boards, and that this power would complement the work that is now being done to raise the whole issue and to ensure that vulnerable people get the protection they need and their circumstances properly investigated?

[Paul Burstow]

The hon. Lady is right, and with her own experience in social work practice, she will know why this matters so much. She is right to say that in the Bill, for the first time, many aspects of adult safeguarding are put on a statutory basis, which is welcome. None the less, there is still a gap, which the Government with this Bill should seek to fill. We have had a lot of back and forth between the Minister of State and his officials, and I am grateful to him for the patience that he has shown. I just hope that the patience translates into something else. However, he has told Members that there is a balance of risks, and his judgment is that the powers are not needed. I say to him and to officials that if that is the case, why, in the scenario that I have described, can he not produce the evidence?

I welcome the fact that the Social Care Institute for Excellence has been commissioned to do work on this issue, but if there is a gap in the law, that will not fix it. It has been suggested that the problem is that practitioners are ignorant of the law. Again, I have to ask where the evidence is for that. Thanks to Action on Elder Abuse, which instituted a freedom of information request, we know that the evidence does not support that line either. So far, 84 out of 152 local authorities have responded. Twenty-nine councils have reported at least one instance in the past 12 months in which they have been unable to gain entry because a third party had denied them access. In 21 of those cases, they never gained access. Therefore, all the arts of negotiation and relationship building that are essential to good social work practice did not gain those people access, and who knows what happened to those individuals. Let us hope that they do not find their way on to the front page as a tragic story.

Not a single one of the 84 authorities that responded to that request have suggested that a failure to gain access was the result of a lack of knowledge. It is really about a lack not of knowledge but of that backstop power, which the new clause provides. In a survey of front-line practitioners, 365 of whom have responded, 82% believe that the power is necessary.

New clause 1 provides a proportionate power for a circuit judge, approved by the Court of Protection, to determine whether an entry warrant should be granted where a person is believed to be under duress and a victim of abuse. Let me be clear that the measure should be rarely used, but it is required for those circumstances in which a person is in the situation that I have described. I agree with the Minister about good social work, but just talking about good social work is not an adequate answer.

--- Later in debate ---

[Hazel Blears (Salford and Eccles) (Lab)]

I shall do my best not to be grumpy and to be as quick as the right hon. Member for Banbury (Sir Tony Baldry). I wish to speak in support of new clauses 9 and 19. New clause 9 has support across the breadth of organisations from the Association of Directors of Adult Social Services to the Care and Support Alliance. It makes fundamental good sense, when setting up a new system, to have the ability to have an annual report about whether there is sufficient money in the system. Whichever Government are in charge, we need to know that. We are in danger of willing the ends but not the means for social care, and we have to make sure that this issue is kept under close review.

We all support the two fundamental principles of the Bill, which are about promoting individual well-being and moving towards a more preventive system. Those are commendable and high ideals, but if we do not have the funding in the system to be able to deliver them, the Bill will not achieve the potential that we all know is there.

I spoke on Second Reading about transformation, and I look forward to welcoming the Minister to Salford on Wednesday to show him how we are transforming the system for dementia care in the city by bringing together £97 million of our total health and social care budgets to try to squeeze every bit of impact out of every last penny to give better care for people with dementia. I hope he will be impressed, but more than that I hope he will help us to do this with his better care fund. That fund should be used for the transformation of our services at a time of austerity when we need more money in the system.

The second part of the new clause is about having a five-yearly review of eligibility criteria, which is essential—to be frank, I would like to see that happen more often than every five years. Eligibility criteria are now set at “substantial” instead of “moderate”, which means that in Salford 1,000 fewer families are being helped, and the heartache and misery that that causes are enormous. It also goes against the second fundamental principle of the Bill. If we do not have eligibility criteria at the right level, how can we transform the system to be preventive? If we only pick up people when they are in crisis, they are escalated into the acute sector, which costs a fortune. If we invest in lower level community-based interventions by social enterprises and voluntary groups, we can save money in the acute sector.

[Meg Munn]

Does my right hon. Friend agree that even when people’s needs are substantial, they are often not getting the support they need because the local authorities are not recognising that low level services, such as shopping and cleaning, help to support the care that is being provided by families? The Government need to have clear guidance on this.

[Hazel Blears]

My hon. Friend, as ever, makes an extremely worthwhile and practical point. Simply having the words in statute does not always portray the real position on the ground. A small intervention can often help to stop things becoming a crisis.