Close human rights loophole in provision of home care, says watchdog

A loophole that means “hundreds of thousands of older people” in home care lack protection under the Human Rights Act should be closed, the Equality and Human Rights Commission has said.

Publishing the final report in its inquiry, Close to home: older people and human rights in home care, the watchdog argued that “at a minimum” all people in receipt of publically funded home care should be protected by the Act.

The EHRC inquiry said it appeared that commissioning was not being consistently used to protect human rights effectively, and that some commissioning practices made the negative experiences that some older people described more likely to happen.

"Although practices varied a great deal, very few seemed to be consistently underpinned by local authorities' awareness of their duties under the Human Rights Act, including their positive obligations to promote and protect human rights," it said.

Local authorities appeared to have "a patchy understanding" of these obligations, the EHRC added.

The inquiry discovered very few local authority contracts for home care specified that the provider must comply with the Act. The EHRC argued that this oversight undermined the quality of care that older people were getting.

“The evidence given to the inquiry indicates that where human rights are embedded into the way home care is provided – from commissioning to service delivery – high quality care is delivered without necessarily increasing costs,” it argued.

The EHRC also expressed alarm at research showing that one in three local authorities had already cut back on home care spending and a further one in five planned to do so within the next year.

It suggested that the low rates that some local authorities paid for home care raised “serious concerns” about the pay and conditions of workers, including payment of the minimum wage.

“The low pay and status of care workers does not match the level of responsibility or the skills they need to provide quality home care,” it argued. “A high turnover of staff as a result of these factors has a negative impact on the quality of care given to older people.”

The inquiry found that half of those surveyed – older people, family and friends – reported real satisfaction with their home care.

However, the EHRC also said there was disturbing evidence of poor treatment breaching some individuals' human rights. This included “physical or financial abuse, disregarding their privacy and dignity, failing to support them with eating or drinking, treating them as if they were invisible, and paying little attention to what they want.”

Other key findings from the final report included:

• Commissioning practices often focus on a rigid list of tasks rather than what older people actually want
• Ways for older people to complain about their home care “are either insufficient or not working effectively”
• Evidence from the home care industry indicated that social activities were some of the first support services to be withdrawn when local authorities cut back their spending on care services. However, these activities are key to avoiding the social isolation and loneliness experienced by many older people
• Age discrimination was a significant barrier to older people getting home care. The inquiry found that people over the age of 65 were getting less money towards their care than younger people with similar care needs, and were offered a more limited range of services in comparison
• Local authority phone contact lines can screen out older people needing home care without passing them on for a full assessment – which the EHRC said was unlawful.

In addition to closure of the HRA loophole, the EHRC recommended that the government, the Care Quality Commission and local authorities work together better “to build human rights into home care and make sure that abuses are detected faster and dealt with more effectively”.

The watchdog said clear and robust guidance on human rights was needed for councils and older people.

Sally Greengross, Commissioner for the EHRC, said: “It is essential that care services respect people's basic human rights. This is not about burdensome red tape, it is about protecting people from the kind of dehumanising treatment we have uncovered. The emphasis is on saving pennies rather than providing a service which will meet the very real needs of our grandparents, our parents, and eventually all of us.

“This inquiry proposes some steps that would make sure human rights are protected in future – including changes to the law so that, at a minimum, all people getting publically funded home care are protected by the Human Rights Act. Currently this is not the case.

“Most of us will want to carry on living in our own homes in later life, even if we need help to do so. When implemented, the recommendations from this inquiry will provide secure foundations for a home care system that will let us do so safely, with dignity and independence."

Yesterday the CQC unveiled plans for an inspection programme of care home services. The programme, which will start in April and cover around 250 providers, will focus on three outcomes: respecting and involving people who use services; care and welfare of people who use services; and supporting workers.

CQC Chief Executive Cynthia Bower said it shared the Equality and Human Rights Commission’s concerns, adding that the three outcomes were ‘gateway’ issues that would lead to the examination of a range of rights-based issues.

In its response the Local Government Association said the inquiry’s results were “symptomatic of a social care system that is underfunded and in need of urgent reform”.

Cllr John Merry, Vice Chair of the LGA’s Community Wellbeing Board, said councils were facing long-term triple pressures of insufficient funding, growing demand and escalating costs, which had been compounded by recent government funding cuts.

He added: “Despite their best efforts, [councils] are having to make tough decisions about the care services they can provide. Carrying out homecare inspections will help to make the service more accountable and transparent and in turn help boost the public's confidence that people in need are being properly looked after.”

Cllr Merry warned that there should be no one-size-fits-all approach, stressing that different councils faced different pressures in adult social care and decisions needed to be taken locally.

“Simply to select a specific charge or service as a barometer of a council's approach to care is misleading,” he argued. “As well as direct services, adult social care is also tied into a council’s public health, leisure, housing, transport and technology initiatives.

"Reforming adult social care is one of the most important issues this country is facing and governments can’t keep dodging the question of how to properly fund it. The longer ministers procrastinate, the more our population ages and the worse things will become."

The EHRC's final report comes amid predictions that the legal system could be "swamped" with court cases between care home providers and local authorities over fees.

Earlier this month the High Court ruled that a decision by Sefton Council to freeze care home fees for a second year running was unlawful. Staffordshire County Council meanwhile agreed to reconsider the level of its fees after being threatened with judicial review by the Fairer Fee Forum.

Philip Hoult