Last month, Lord [Colin] Low secured a rare parliamentary victory over the government when his amendment to the care bill was approved in a Lords vote.
A loophole in human rights law previously meant that service-users in voluntary and private sector-run homes had no protection under the Human Rights Act (HRA), for example if they suffered abuse or neglect.
Although the Labour government tried to close the loophole in 2008, there remained a “grey area”, where those disabled and older people whose care was arranged through the National Assistance Act 1948 are probably protected under the Human Rights Act, but those whose care was arranged under different legislation might not be.
Lord Low’s amendment states that all organisations regulated by the care watchdog, the Care Quality Commission, are “exercising a public function” and therefore protected under the act.
This means that his amendment also provides HRA protection for the first time to “self-funders”, those who are eligible for care but have to pay for it themselves because of means-testing.
All of this protection could now be lost if the government attempts to overturn the amendment when the bill is debated in the House of Commons.
A date has not yet been set for the bill’s second reading in the Commons, but Lord Low is focusing his efforts on persuading Liberal Democrat MPs to back his amendment.
He said: “The amendment is of importance to disabled people because it will help to protect them against arbitrary oppressive treatment by private homes and will also apply to domiciliary care.
“As regards the first, we heard in the debate about people who were given four weeks to leave simply because they alienated the home staff with the views they expressed.
“They took legal advice, but were told that as things stand there was nothing they could do legally. My amendment would change all that.”
Sanchita Hosali, deputy director of the British Institute of Human Rights (BIHR), said: “The amendment is quite a neat solution. It says that any care that is regulated should be considered to have human rights obligations.
“It is really important. We work on the ground with advocacy groups and service-providers and do outreach work and we constantly hear how important human rights are to people receiving care services.
“When you are treated in a really bad way, you don’t just say, ‘this is really unfair,’ or ‘this is not very nice.’ Instead, you can say: ‘Do you not realise you have an obligation to respect and protect my rights?’ That is a very powerful, and very different, conversation.
“When services realise that they have legal obligations and need to think about people’s rights, that is very powerful for changing cultures.”
BIHR toured the UK this year, visiting 15 towns and cities to raise awareness of the importance of human rights and how to apply them in everyday life.
Hosali said that this “odd gap” – the lack of protection for older and disabled people in privately-funded care homes – was raised repeatedly by those attending the tour events.
BIHR is now hoping that people will contact their MPs – of all parties – to ask them to support Lord Low’s amendment.
She said: “This is the kind of issue that is really real to the people they represent. It is about the everyday experiences of their constituents. it is about whether the people they represent are being treated with dignity and respect.”
A Department of Health spokeswoman said: “We are still reflecting on the amendment that Lord Low made and we are not in a position to give any further update at the moment because the [second]reading is so far away.”
She said the second reading of the bill in the Commons was likely to take place in late November or early December.
Earl Howe, the Conservative junior health minister, has already warned peers that the amendment would represent “an unprecedented change to the scope of the Human Rights Act”, and would capture “purely private arrangements, such as a privately arranged social care contract between a private care home and a private individual”.
18 November 2013