Have a care

In June 2007 the House of Lords ruled that a person placed in a privately run care home by a local authority under the National Assistance Act 1948 would not be entitled to protection under the Human Rights Act 1998.

At the time, two of the five lords gave strongly dissenting opinions, arguing that Parliament had intended that the act should apply in such circumstances. It seems that wrong is to be righted through a provision inserted by the House of Lords into the Health and Social Care Bill.

Now a person providing an individual with accommodation in a care home together with nursing or personal care, under arrangements made with the provider under sections 21(1) (a) and 26 of the National Assistance Act 1948 in England, will be taken to be exercising a function of a public nature for the purposes of the Human Rights Act.

This provision applies to all relevant persons resident in a care home once the bill comes into force, as well as any new placements.

It will affect all providers of care homes, including registered social landlords, who will become susceptible to challenges on the grounds set out under the act – usually the right to respect for private and family life – which have largely failed until now.

However, it will not apply to all residents: self-funders will continue to have to fend for themselves, as will those being provided with non-residential care, whether publicly funded or not.

It is possible that if a measure affects all residents then self-funders may well achieve protection by proxy, if a protected resident decides to challenge a measure under the act and wins. In addition, the bill will also strengthen the powers of the Care Quality Commission to ensure that all residents, including self-funders, will receive care which conforms to the spirit of the act.

No doubt most, if not all, social landlord care providers are already operating their care homes as if the act applied. Many contracts with local authorities require providers to act as if it did.

However, making this a statutory requirement will mean that this is no longer an option if a social landlord wants to continue contracting with the local authority. Landlords will therefore have to take the act into account, especially with decisions likely to threaten a resident’s claim to a care home being their home.

Of more general significance is that this provision is being brought in ahead of any changes made to the scope of the act following consultation later this year.

If the deciding factor is whether a function is being carried out under arrangements made under statutory provisions, this might well result in the act being extended to cover nominations by local authorities and other functions.

Lmurray@TLTSolicitors.com