Human rights watchdog to investigate home care legal obligations

The Equality and Human Rights Commission is to examine the legal obligations of local authorities, care providers, the Care Quality Commission and central government as part of a major inquiry into the human rights of older people who need or receive home-based care.

The EHRC said that 81% of publicly funded home care is now provided by the independent sector, up from just 2% in 1992. It is estimated that more than a million older people currently receive such care.

The watchdog claimed that most independent providers are likely to be operating outside the direct reach of the Human Rights Act because they are not considered to be performing a “public function”.

Older people who receive home-based care are “acutely vulnerable to human rights violations”, the EHRC added, “yet the duties and responsibilities of those providing commissioning, funding or regulating the care and support system are far from clear.”

Sally Greengross, Commissioner at the EHRC, said: “Against a backdrop of budget cuts and public sector reform, local authorities are playing an ever-decreasing role as direct providers or funders of care and support, with the majority of older people receiving care from private and voluntary sector organisations or individuals.

“The complex web of provision has left older people and their families unclear whether and how their human rights will be protected. Equally, we believe those providing, commissioning or regulating care are unclear of their legal responsibilities and how to discharge them.”

The EHRC warned that, with older people and their families increasingly having to fund their care, there was a risk of care “being provided at the margins of, or even outside of, current regulations and beyond the reach of human rights obligations”.

The terms of reference for the inquiry include identifying:

• The extent to which public authorities are effective in protecting and promoting the human rights of older people , including those paying for their own services, in the initial and ongoing assessment of their needs, commissioning home based care and support and subsequent contract management
• Good practice in the promotion and protection of human rights of older people in home based care
• Public authorities’ understanding of their duties under the Human Rights Act in relation to promoting and protecting the human rights of older people requiring or receiving home based care and support
• The extent to which the legal framework for human rights and community care adequately protects and promotes the human rights of older people requiring or receiving home based care and support services
• The extent to which appropriate information, advice and advocacy is provided to older people directly purchasing home based care and support in order to protect and promote their human rights
• The extent to which inspectorate and regulatory bodies, including professional regulatory bodies, protect and promote the human rights of older people requiring or receiving home based care and support services and the extent to which it is appropriate for them to do so
• The scope for enhancing the role of inspectorate and regulatory bodies, including professional regulatory bodies, individually and collectively
• The extent to which people, including the families of older people requiring or receiving care and support, based on their experience, have confidence that the system will promote and protect their human rights.

The EHRC said its recommendations would be used to inform the practices of local authorities, regulators and providers of home based care, as well as the Commission's own work. The watchdog is also keen to influence the Independent Commission on social care reform and the independent Commission on a Bill of Rights.

The Inquiry will publish its findings and recommendations in December 2011.