The Lords had previously inserted Clause 48 into the Bill, seeking to apply the Human Rights Act (“HRA”) to all provision of CQC-regulated social care. The HRA makes it unlawful for any public authority to act in a way which is incompatible with the European Convention on Human Rights and Fundamental Freedoms (ECHR). Section 6 (3) (b) of the HRA defines "public authority" as "any person certain of whose functions are functions of a public nature". 

Unfortunately the Courts historically have had difficulty in interpreting the phrase "functions of a public nature", as demonstrated by the troubling case of YL v Birmingham (2007).

YL was an 84 year old lady suffering with Alzheimer’s. In the performance of its duties under s21 and s26 of the National Assistance Act 1948 (NAA), Birmingham City Council contracted with Southern Cross Healthcare Ltd (Southern Cross), to provide YL with residential care. The local authority contributed towards the costs of that care. When the relationship between YL’s family and Southern Cross deteriorated, Southern Cross served notice, terminating YL’s right to remain in the care home. YL challenged this as a breach of her right to respect for her home and a family life under article 8 of the ECHR, and so unlawful under section 6(1) of the HRA. The question of whether YL could claim the protection of article 8 against Southern Cross turned on whether the company could be said to be exercising a function of a public nature when providing publicly funded residential care. In this case, by 3 votes to 2, the Lords held that the provision of residential care by private or third sector organisations did not fall within the definition of "functions of a public nature".

This decision left thousands of service users with no direct HRA remedy against their service provider in any case of neglect, abuse or undignified treatment.

Section 145 was then introduced into the Health and Social Care Act 2008. This clause provided that anyone providing accommodation, with nursing or personal care, under s21 or 26 of the NAA in a care home is exercising a "function of a public nature" in doing so.

However, s145 only applied to residential care provided under the NAA. Domiciliary care provision, supported living arrangements and residential services provided under other legislation were still not brought under the protection of the HRA.

If Clause 48 to the Care Bill had become law, it would have been the first time that the HRA applied directly to purely private arrangements, with no state involvement whatsoever. Individuals who had made their own arrangements with care providers and who were entirely self-funding would have been able to bring an action against their provider seeking damages for any human rights’ breaches.

The Commons had rejected Clause 48 as going "too far", but the government then proposed an alternative amendment which, as Paul Burstow MP argued, would ensure:

"Service users who experience serious human rights abuses will then have direct means of legal redress. However, this is not just about going to law; it is about what goes on in the hearts and minds of those organisations and the attitude they take towards how they provide services, so the Human Rights Act has a part to play in culture change as well. For example, the Act has been successfully invoked in an argument about a local authority’s refusal to place a married couple in the same nursing home."

This new amendment covers the provision of personal care or residential accommodation with nursing or personal care, by registered providers, throughout the UK.

In these circumstances:

"(2) The provider is to be taken for the purposes of section 6(3)(b) of the Human Rights Act 1998 (acts of public authorities) to be exercising a function of a public nature in providing the care or support, if the requirements of subsection (3) are met.

(3) The requirements are that -

(a) the care or support is arranged by an authority […], or paid for (directly or indirectly, and in whole or in part) by such an authority, and

(b) the authority arranges or pays for the care or support [……]"

In short, if the care and support has been arranged by the local authority, or is paid for fully or partly by the local authority, then the provider is exercising a function "of a public nature" and the HRA applies.  This covers individuals residing in care homes and those receiving care or support in their own homes or other settings.

In addition, if a service user receives a direct payment from the local authority, and uses that direct payment to purchase care and support, then again that arrangement is covered by this amendment.

This amendment will reinforce the clear message to the sector that the prevention of abuse and harm to vulnerable members of society must be at the heart of their agenda.

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