On 10 November 2010 the Equality and Human Rights Commission launched a Formal Inquiry using its powers under Section 16 of the Equality Act 2006. The Inquiry looked at the effectiveness of the English care and support system in protecting and promoting the human rights of older people (aged 65 and over) requiring or receiving home based care and support. We had a range of evidence submitted from various carers, organisations older people and their families.
The inquiry forms part of our wider body of work on human rights, and feeds directly into our Human Rights Review in England and Wales, and our submission to the United Nations Universal Periodic Review of the UK's performance on human rights.
Why we carried out the inquiry
There are significant risks to the human rights of older people who require or receive home based care and support, yet the duties and responsibilities of those providing, commissioning, funding or regulating the care and support system to protect and promote human rights are far from clear.
This inquiry looked at the effectiveness of the English care and support system in protecting and promoting the human rights of older people requiring or receiving home based care and support. It aimed to provide clarity and confidence for all who have rights and responsibilities that human rights are being robustly and comprehensively protected.
The inquiry investigated the experiences of, and as a result confidence in, the system to protect human rights of older people and their families. It explored the legal obligations of different groups, including care providers, local authorities, the Care Quality Commission and central government.
It looked specifically at whether obligations are being discharged effectively in the context of reforms to the care and support system and evidence of good practice in this area. Finally the inquiry looked at the case for legislative reform to ensure that the human rights of vulnerable older people are comprehensively and robustly protected.
The Inquiry began in November 2010 and published its findings and recommendations in November 2011 with guidance for home care users being published in November 2012, guidance on human rights for Commissioners of homecare in May 2013 and the Close to home recommendations review in September 2013.
Background to the inquiry
The nature of social care is changing rapidly with a greater emphasis on personalised services and choice. The majority of social care services are already delivered by private sector agencies, either via contract with local authorities or directly with individuals through a mix of public and private funding.
This complex web of transactions is combined with a narrow judicial interpretation of the meaning of 'public authority' under the Human Rights Act. This combination has created a confused picture concerning the duties and obligations of the various groups involved in respecting, protecting and promoting human rights. Further, an increasing number of care transactions are likely to take place at the margins of, or even outside of, regulated care. There is the possibility that these transactions are beyond the present human rights obligations of the State. We are also seeing the emergence of new on-line care marketing and brokerage services aimed at people purchasing social care with either 'individual budgets' or private funds. These marketing and brokering services are currently completely outside of the regulatory system with no means of monitoring the quality of the advice and services they offer. The Government wants to accelerate the pace of reform even further. While personalised care and support has many potential benefits, this is uncharted territory. There are concerns that human rights protection (and other issues) could fall between the gaps.
Given the nature and pace of these changes it is important to make sure that the legislative, regulatory and quality control systems we have in place are able to keep up, and the elements in place make sure that human rights are fully protected. The Equality and Human Rights Commission knows that there are significant doubts about whether this is the case – and that these doubts are shared by a wide range of stakeholders, including those representing older people and their families, care workers, the Joint Committee on Human Rights, and some of the regulatory bodies themselves.
The reforms in social care are not unique and have been replicated in other areas of public services. The Inquiry will assist the Commission and others, including the government, in understanding the implications of such reform for human rights protection.
Last updated: 29 Jun 2016