Inquiry will examine human rights ‘loopholes’ in home care


A major inquiry by the human rights watchdog will investigate the “loopholes” that could be depriving older people who use home care services of protection under the Human Rights Act (HRA).

The Equality and Human Rights Commission (EHRC) said people receiving home-based care and support – many of whom were disabled – were “acutely vulnerable” to human rights violations.

Some older people were “treated like children” by care agencies, who arrive at their home, “switch off their TV and send them straight to bed”, because the agency worker has five different clients to get to bed, an EHRC spokeswoman said.

The commission also pointed to the case of Elaine McDonald, who lost an appeal court case against a council that wanted her to use incontinence pads to avoid spending money on providing a night-time support worker.

The EHRC said the legal duties and responsibilities of care providers, local authorities, the Care Quality Commission (CQC) – the care regulator – and central government were “far from clear”.

Although the inquiry will focus on older people, the commission stressed that its conclusions and recommendations would also apply to younger disabled people who used care services in their own home.

The EHRC warned that older people would increasingly be forced to fund their own care, with such services likely to be “totally unregulated” and offer no protection under the HRA.

And although four-fifths of publicly-funded home care is already provided by individuals and the private and voluntary sector, most such providers are “likely to be operating outside the direct reach of the HRA”, said the EHRC.

The inquiry will also ask whether there are any “loopholes” in the protection provided by the CQC and whether its remit needs “strengthening”.

Baroness [Sally] Greengross, an EHRC commissioner, said the “complex web” of provision of home care had left older people and their families unclear “whether and how their human rights” would be protected.

Douglas Joy, senior solicitor with Disability Law Service, who acted for McDonald in her court case, welcomed the inquiry, and said: “Something has to happen because the system looks like it is creaking and about to collapse.

“The gap between what on paper a local authority has a responsibility to provide and what is actually happening is getting wider and wider and it needs to be addressed.”

The charity Age UK also welcomed the inquiry, which it said would “force providers and commissioners to recognise that the question of how home-care services are provided is just as important as ensuring there is enough care to go round”.

A CQC spokesman said: “CQC welcomes the EHRC inquiry and are happy to cooperate with it. If it makes any recommendations that concern our work we will, of course, consider them carefully.”

The inquiry will report its findings and recommendations in December 2011.

Meanwhile, a CQC report on the state of the adult social care market says the number of care homes, home care services, nursing agencies and shared lives schemes rated good or excellent rose from 69 per cent in 2008 (and 77 per cent in 2009) to 83 percent in 2010.

The report also found the average size of both residential homes (17.8 to 18.5 places) and nursing homes (43.1 to 46.6 places) had risen between 2004 and 2010.

For more information about the EHRC inquiry, visit:

11 November 2010