Disabled peer battles on over care home human rights protection

A disabled peer is refusing to concede defeat despite the coalition narrowly overturning his amendment to the care bill, which would have provided human rights protection for residents of private sector and charity-run homes.

Lord [Colin] Low secured the amendment after a Lords vote in October, but this week the government managed to have his new clause thrown out – by just 12 votes to 10 – after it was discussed during the bill’s committee stage in the Commons.

The crossbench peer said he was “disappointed” but not surprised by the government’s actions, but vowed to reintroduce the clause when the bill returned to the Lords, if Liberal Democrat MPs failed to rebel against the government in the Commons.

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, there remains a “grey area”, where those disabled and older people whose care was arranged through the National Assistance Act 1948 are probably protected under HRA, but those whose care was arranged under different legislation might not be.

Lord Low’s new clause stated that all organisations regulated by the care watchdog, the Care Quality Commission, were “exercising a public function” and therefore covered by the Human Rights Act.

This meant that his clause also provided HRA protection for the first time to “self-funders”, those eligible for care but who have to pay for it themselves because of means-testing.

But the Liberal Democrat care and support minister Norman Lamb said this week during the bill’s committee stage that the new clause would mean HRA applying to the relationship between a privately-funded care home resident and a privately-run care home, which would be an “unprecedented extension to its scope”.

He said: “The point I am making is that it would seem bizarre to apply those principles of the protection of the individual against the oppressive state to the relationship between the individual and a little care home in Lunesdale.”

But Paul Burstow, his Liberal Democrat colleague and predecessor as care and support minister, said the law as it stood was a “dog’s breakfast”, and left home care arranged and paid for by the state and some types of residential care arranged and paid for by the state not covered by HRA.

Liz Kendall, Labour’s shadow care and support minister, pointed to those backing Lord Low’s clause, including the Equality and Human Rights Commission, the Law Society, Liberty, Age UK, Mind, Scope and Disability Rights UK, as well as the former Conservative lord chancellor Lord Mackay, and Lord Hope, former deputy president of the Supreme Court.

Burstow abstained in the vote, which the government won by 12 votes (the 11 Conservative members of the committee and Lamb) to 10.

Lord Low told Disability News Service that the government was “labouring under a fundamental misapprehension about the legal position”, failing to realise that privately-provided services can still offer functions “of a public nature” and so be subject to the Human Rights Act.

Lord Low said that he and others backing his new clause were now “making contact” with Liberal Democrat MPs and seeking meetings with ministers.

He pledged to reinstate his clause when the bill returned to the Lords, and if that was not successful, to seek some form of compromise with the government.

23 January 2014