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Close to home

An inquiry into older

people and human

rights in home care

This has been a collaborative inquiry,

significantly enhanced by the commitment

of an expert advisory group listed below.

Their advice and insights have greatly

assisted us.

Our advisory group was made up of

representatives from:

Action on Elder Abuse

Association of Directors of Adult Social

Services (ADASS)

Age UK

British Institute of Human Rights

Carers UK

Counsel and Care

Care Quality Commission (CQC)

Department of Health

English Community Care Association

(ECCA)

Local Government Association

National Care Forum

National Pensioners Convention

Social Care Association

United Kingdom Home Care Association

UNISON

Inquiry into older people and human rights in home care

Acknowledgements

We are also grateful to all the

organisations and individuals who took

the time to submit evidence to our inquiry,

including local authority officers and

councillors, home care providers and

voluntary sector organisations, who

generously gave their time to provide

us with the insights we needed. Our

thanks go to the many individuals and

organisations, such as Anna Gaughan and

local Age UK organisations, who helped us

to arrange interviews and to reach older

people in different communities, and to

Wendy Sykes and Carola Groom, whose

interviews with older people informed

and shaped our inquiry.

www.equalityhumanrights.com/homecareinquiry

Acknowledgements Page 2

Foreword Page 7

Part 1: About this inquiry Page 8

Why this inquiry? Page 8

About the Equality and Human Rights Commission Page 9

Terms of reference for the inquiry Page 9

How we conducted the inquiry Page 10

Where our evidence has been drawn from Page 10

Supplementary reports Page 12

Analysing the evidence: using a human rights framework Page 12

The legal and regulatory framework Page 13

What are human rights? Page 13

The Human Rights Act 1998 Page 13

Positive human rights obligations Page 14

The UN Convention on the Rights of Persons with Disabilities Page 15

Regulation of home care services Page 15

Part 2: About home care Page 17

Who needs and benefits from home care? Page 17

Who provides home care? Page 17

What are older people’s rights to home care? Page 18

The effect of financial restraints Page 18

How is home care paid for? Page 18

How are human rights relevant to home care? Page 19

Adopting a human rights approach to home care Page 20

Part 3a: The importance and value of home care in the lives

of older people Page 23

Choosing to live at home Page 23

How satisfied are older people with the care they get? Page 23

Skill and professionalism in executing duties and tasks Page 23

Older people’s relationship with home care workers Page 24

Views of home care workers Page 25

Part 3b: Our findings on the protection of human rights in

home care Page 27

Older people’s physical and emotional wellbeing Page 27

Support with food and drink Page 27

Physical abuse Page 30

Contents

Inquiry into older people and human rights in home care

Neglect of personal care Page 30

Financial abuse Page 33

Lack of autonomy and choice Page 33

Inflexibility Page 34

Lack of respect for privacy Page 35

Lack of personal security Page 36

Insufficient attention to diverse needs Page 36

Social and civic participation Page 39

The impact of isolation Page 40

Maintaining family relationships Page 40

The experience of home care workers Page 41

The impact on older people Page 41

Part 3c: How well do local authorities promote and protect

older people’s human rights? Page 43

Commissioning home care Page 44

Including human rights in contracts and service specifications Page 44

Procurement and contract monitoring Page 46

Procurement Page 46

The bias towards cost criteria in awarding contracts Page 46

Commissioning home care at very low hourly rates Page 47

The practice of using reverse e-auctions Page 48

The need for supportive leadership Page 48

A partnership approach to commissioning care services Page 48

The role of the Association of Directors of Adult Social Services Page 49

The effects on the service for older people Page 49

The effects on the care market Page 50

Assessing and reviewing older people’s needs Page 52

‘Screening out’ people from services? Page 52

How assessments are carried out Page 53

Reviews Page 54

Our conclusions Page 54

Part 3d: Choice and control over care Page 57

Older people’s understanding of their entitlements Page 57

Information and advice Page 58

Older people’s involvement in assessing their needs Page 58

Choosing a provider Page 59

Offering greater choice and control through personalisation Page 59

Older people’s experiences of personal budgets Page 60

Factors preventing older people taking up direct payments Page 61

Local authority targets for personalisation Page 65

Personalised service does not have to mean a personal budget Page 66

www.equalityhumanrights.com/homecareinquiry

Part 4: Key challenges to the human rights of older people Page 69

The impact of age discrimination Page 69

Different treatment for different age groups Page 69

Ban on age discrimination Page 71

Lack of informed choice on care Page 71

Positive obligations linked to choice on care Page 71

Lack of understanding Page 71

Lack of investment in home care workers Page 72

Pay and working conditions Page 73

Core skills including literacy and English, induction and training Page 75

Output-driven commissioning Page 76

‘Time and task’ commissioning Page 76

Financial constraints on quality Page 77

Part 5: How can threats to human rights in home care be brought

to light and dealt with? Page 79

Current avenues for complaint Page 79

Satisfaction surveys Page 79

Complaints Page 80

How well does the legal and regulatory framework protect human rights? Page 86

Are human rights embedded into the regulation of social care? Page 87

Gaps in the coverage of the Human Rights Act Page 90

Lack of legal protection from age discrimination Page 91

Underpinning social care legislation with human rights principles Page 92

Part 6: Recommendations and conclusions Page 95

Appendix 1: Glossary of terms about home care Page 100

Endnotes Page 105

Inquiry into older people and human rights in home care

“Where, after all, do universal human

rights begin? In small places, close

to home... Unless these rights have

meaning there, they have little

meaning anywhere.”

Excerpt from Eleanor Roosevelt’s “The Great Question” (remarks

delivered at the United Nations, New York, March 27, 1958)

www.equalityhumanrights.com/homecareinquiry

Foreword

Barely a week goes by without some news

that calls into question how the existing

care system can continue to meet the needs

of society. As social care reforms gather

pace ahead of the government’s White

Paper expected in spring 2012, this report

sets out our specific concerns about human

rights in home care for older people and our

recommendations.

Our inquiry has uncovered serious,

systemic threats to the basic human rights

of older people who are getting home care

services. Our evidence gives a comprehensive

picture of weaknesses in the home care

system, their impact on older people and

shows how easily breaches of human rights

in home care can occur.

Our findings suggest that age discrimination

is one of the key factors explaining why

older people face risks to their human rights

in home care services. We have uncovered

worrying examples of where someone’s age

determines the funding and provision of

home care services.

Universal, basic human rights are an

essential standard, not an optional extra or

burdensome red tape. Our evidence indicates

that embedding human rights into the way

home care is provided delivers high quality

care, without necessarily increasing costs.

This report 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.

Local authorities already have

responsibilities under the Human Rights

Act to protect and promote the human

rights of older people needing home

care – but often don’t understand those

responsibilities or how to put them into

practice when commissioning services

from private or third sector providers.

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.

Society has to get this right, before it’s too late.

Tackling this now will make life better for a

generation of older people and their families.

Baroness Sally Greengross OBE

Lead Commissioner for the Equality

and Human Rights Commission’s

Home Care inquiry.

authorities delivering care themselves to

commissioning (sometimes jointly with

health authorities) private and voluntary

sector care agencies to deliver home care

on their behalf. In 1992, the proportion of

publicly funded home care provided by the

private and voluntary sectors was only 2

per cent,

but by 2009/10 this had

increased to 84 per cent.

Decisions taken

by the courts mean that private and

voluntary sector organisations are almost

certainly not subject to the HRA when

performing this role. However, when the

HRA came into effect, in 2000, many

more older people would have benefited

from its protection because at that time 44

per cent of home care was provided

directly by local authorities.

The recent changes have also brought a

greater use of personal budgets, including

direct payments. By 2009/10, 10 per cent

of the older people receiving publicly

funded social care were arranging their

care in this way.

Expenditure on direct

payments for older people receiving day

and domiciliary care increased from £190

million in 2008/09 to £250 million in

2009/10.

This has contributed to a

mismatch between the state’s duty to

assess and arrange care – which is

covered by the HRA – and the actual

provision of home care, the vast majority

of which isn’t.

The government’s White Paper on the

future of social care is due to be published

in spring 2012, and far-reaching changes

to the social care system are expected to

follow. This inquiry is well placed to

Inquiry into older people and human rights in home care

Why this inquiry?

We have conducted this inquiry to find out

whether the human rights of older people

wanting or receiving care in their own

homes in England are fully promoted

and protected. There has never been a

systematic inquiry into the human rights of

older people receiving or requiring home-

based care and support. Although far more

older people receive home care than either

residential or nursing care,

the human

rights of older people in residential and

hospital care have received much more

attention.

The potential risks to human rights when

care is provided ‘behind closed doors’, in

people’s own homes – a less easily

regulated environment – are in many ways

greater than in institutional settings. There

is also evidence that older people face

particular risks to human rights associated

with the provision of care and support

services, especially at home. For example,

there has been evidence of breaches to the

prohibition against inhuman or degrading

treatment and to the right to respect for

private and family life.

As we explain below, the Human Rights

Act 1998 (HRA) provides a legal safety net

for many, but – because of the way the

HRA has been interpreted by the courts –

this protection does not extend to the

majority of older people receiving care at

home. Over the last 10 to 15 years, there

have been significant changes in the

provision of home care. This ‘quiet

revolution’ has seen a shift from local

Part 1: About the inquiry

www.equalityhumanrights.com/homecareinquiry

influence these changes. Its findings

are providing a strong evidence base to

inform the Commission’s response to the

White Paper. We will capitalise on the

opportunities to embed our inquiry

findings and recommendations into

future policy and legislation.

About the Equality

and Human Rights

Commission

The Equality and Human Rights

Commission is the regulator of equality

and human rights. This inquiry builds on

our Human Rights Inquiry published in

2008 and dovetails with our forthcoming

Human Rights Review to be published in

early 2012.

The Commission has a duty under Section

9(1) of the Equality Act 2006 to promote

awareness, understanding and protection

of human rights, and encourage public

authorities to comply with the HRA. We

also have a general duty to exercise our

functions ‘with a view to encouraging and

supporting the development of a society in

which … there is respect for the dignity

and worth of each individual’.

Under Section 16 of the Equality Act 2006,

the Commission may conduct inquiries

into issues or sectors where there are

concerns relating to human rights and/or

equality. Through our inquiry powers, the

Commission can require organisations to

provide evidence, both in writing and in

person. The Commission must publish a

report and may make recommendations to

organisations or individuals which they

need to ‘have regard to’.

Terms of reference for

the inquiry

The inquiry was launched in November

2010 with the following terms of reference:

To inquire into the extent to which the

human rights of older people who require

or receive home-based care and support,

however funded, are promoted and

protected by public authorities, working

singly or with others, and the adequacy of

the legal and regulatory framework within

which they are required and empowered to

do so.

While the inquiry is focused specifically on

older people – which we have defined as

those aged 65 and over – the majority of

these home care users would also fall

within the legal definition of ‘disabled’

under the Equality Act 2010.

In particular, the inquiry aimed to identify:

1. 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.

2. Good practice in the promotion and

protection of human rights of older

people in home-based care, including

by reference to examples of how public

authorities have addressed human

rights matters in discharging their

existing duties to promote race, gender

and disability equality or through the

development of single equality schemes.

Inquiry into older people and human rights in home care

3. 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.

4. 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.

5. 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.

6. 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.

7. The scope for enhancing the role of

inspectorate and regulatory bodies,

including professional regulatory

bodies, individually and collectively, in

promoting and protecting the human

rights of older people receiving home-

based care and support.

8. 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.

In carrying out this inquiry, we have taken

into account the extent to which the diverse

experiences and needs of older people

related to their disability, age, gender,

gender identity, race or ethnicity, religion

or belief, and sexual orientation are

effectively incorporated.

How we conducted the

inquiry

Where our evidence has been

drawn from

To gain a rounded picture of how the

human rights of older people are promoted

and protected, we gathered a broad

evidence base from 1,254 individuals and

organisations across England. The evidence

came from older people, their friends and

families, organisations that provide home

care and their staff, local authority staff and

elected councillors, as well as people from

government, the voluntary sector and

regulatory bodies.

We used a range of methods to collect the

evidence, including:

Written evidence

We sent out a ‘call for evidence’ aimed at

older people, their friends and family,

individuals working in this sector and

voluntary sector organisations. We received

560 responses – 361 from older people,

their friends and family, 148 from

individual workers, and 61 from

organisations.

Drawing on our interim findings, we also

sent 12 targeted requests for evidence to

government departments, regulators and

national organisations with expertise in

the area.

www.equalityhumanrights.com/homecareinquiry

Focus groups

Thirteen focus groups, attended by 178

people of different age groups, aimed to

ensure that our evidence base represented

the views and experiences of a wide variety

of groups, including different ethnic and

faith groups and older lesbian, gay, bisexual

and transgender people.

Interviews

We conducted 150 in-depth interviews with

local authority staff and councillors,

organisations providing home care, home

care workers and voluntary sector

organisations from across England. Verbatim

transcripts of these interviews were analysed

using qualitative analysis software.

Interviews with older people

Independent Social Research was

commissioned to conduct 40 face-to-face

interviews with older people using home care

services in four different areas of the country.

Surveys of local authorities and

care provider organisations

IFF Research conducted two surveys on

our behalf:

an online survey of local authorities –

we received 83 responses (a response

rate of 54 per cent)

250 telephone interviews with a range

of organisations that provide home

care.

Where a person’s need for care is

primarily due to their health needs, a

home care package may be fully funded

by the NHS under the ‘continuing

healthcare’ provisions.

However home

care commissioned or provided by local

authorities is much more common for

long term care and we therefore chose to

focus on home care that was not funded

by the NHS.

Evidence Collection

Older People

Family and Friends

Voluntary and

Community Sector

Home Care Workers and

Personal Assistants

Professional and

Representative Bodies

Independent Sector

Providing Services

Government

Local Authorities

Regulators/Complaints

Handling Bodies

Service User

Perspective

Service Provider

Perspective

Public Authority

Perspective

Inquiry into older people and human rights in home care

Supplementary reports

Supplementary reports which were

obtained or prepared in the process of our

evidence collection can be found on the

Commission’s website. We have drawn on

these in writing this report.

Analysing the evidence: using a

human rights framework

We identified a series of areas where an

individual’s human rights might be at risk

in the context of home care services. This

was then used as a framework for our

evidence.

Our starting point for this inquiry was the

rights protected by the European

Convention on Human Rights (ECHR) as

these are part of our law and can be

enforced through the HRA. However, we

also took into account certain rights under

the UN Convention on the Rights of

Persons with Disabilities (CRPD) which

are particularly relevant to people using

home care services.

In addition, we

referred to the UN Principles for Older

Persons, which were adopted by the UN to

help guide national policy programmes for

older people.

Drawing from these human rights

documents, we adopted a framework for

our evidence collection. This framework

sets out four broad headings, subdivided

into key areas of risk where the provision

of home care might compromise an

individual’s human rights.

Dignity and security

Physical wellbeing – including freedom

from physical abuse or neglect,

protection from pharmaceutical/

medical abuse and sexual abuse

Psychological and emotional wellbeing –

including freedom from bullying and

threats, or disrespectful treatment, and

respect for cultural heritage and religion

Financial security/security of

possessions – including protection from

financial abuse and, for those without

mental capacity, decisions taken in one’s

best interests

Autonomy and choice

Self-determination – including the right

to live as independently as possible, to

make routine decisions and to be

consulted about professional decisions

Support for decision-making about care

– including information and advice

about options and being given

meaningful choices

Privacy

Respect for privacy – including modesty

when dressing/bathing and privacy

when one’s personal circumstances are

discussed by others

Respect for private correspondence –

letters, phone calls, private documents

Social and civic participation

Maintaining relationships with friends

and family

Participation in community events,

groups and associations, religious or

non-religious activities

www.equalityhumanrights.com/homecareinquiry

Civic participation – including the right

to vote in elections.

In analysing our evidence, we also took

into account the different experiences of

particular groups, for example older

people from ethnic minority communities

and older lesbian, gay and bisexual people.

In Part 3, we look at the experiences of

older people using home care services and

identify whether breaches of rights

protected by the HRA are likely to have

taken place. Where appropriate, we

considered whether there had been

compliance with the CRPD.

The legal and regulatory

framework

What are human rights?

Human rights are the fundamental and

irreducible rights of every individual,

representing moral and ethical principles

that are central to a democratic society.

They are founded on a framework of

fundamental values: dignity, autonomy,

equality, fairness and respect.

The United Nations adopted its Universal

Declaration of Human Rights in 1948 as a

response to the atrocities of the Second

World War. This was followed, in 1950, by

the European Convention on Human

Rights (ECHR), which focuses mainly on

civil and political rights. Drafted primarily

by British government lawyers, the ECHR

was ratified by the UK in 1951. However,

before the Human Rights Act (HRA)

became law, anyone claiming that their

ECHR rights had been breached could not

bring a claim in the UK courts. They had

to bring a case against the state itself –

that is, against the UK – to the European

Court of Human Rights in Strasbourg.

The Human Rights Act 1998

The ECHR was made part of our law by

the Human Rights Act 1998 (HRA). The

HRA requires public authorities to act

compatibly with the ECHR, as far as their

statutory powers and duties allow them to

do so. As a result of the HRA, an

individual who believes their rights have

been infringed can bring a case in our own

courts against the public authority

concerned. However, if their claim fails,

the person could bring a human rights

claim against the state (the UK) in the

European Court of Human Rights. The

state is responsible to this court for any

breaches of the ECHR caused by a public

authority.

The effect of the HRA is that local

authorities must take into account ECHR

rights in relation to all of their functions.

These functions include the provision of

public services to individual users – for

example, planning, commissioning and

monitoring the provision of home care

services. This means that local authority

social services departments must exercise

all their powers and duties in a way that is

compatible with ECHR rights.

The same principle applies to NHS bodies,

which have responsibility for certain types

of home care (often provided under

partnership arrangements with local

authorities).The Care Quality Commission

(CQC) is also a public authority under the

HRA and so must comply with ECHR

rights when carrying out its functions as

the regulator of the home care sector.

Inquiry into older people and human rights in home care

provide information to individuals to

explain the risk of their human rights

being eroded, where it is clear that this

risk exists.

This means that, in some situations, local

authorities and other public bodies such as

the CQC, might have to take positive steps

to protect the human rights of older

people receiving home care from private

or third sector organisations. For example,

if a local authority failed to use its powers

to take action in response to a pattern of

complaints from older people about

abusive or neglectful treatment by a

particular home care agency, the authority

might be in breach of its positive human

rights obligations to protect those whose

human rights were at risk. Similarly, if the

CQC were to fail to respond effectively to

allegations by whistleblowers about a

certain home care provider, this could

breach its positive obligation to respond to

human rights violations.

Local authorities which are not complying

with their positive obligations to promote

and protect human rights in home care

provision (such as by ensuring there is a

proper system for reporting and

monitoring human rights breaches) may

be failing to perform their statutory duties

in a way that complies with the HRA. This

could expose them to a legal challenge.

Likewise, a court could find a local

authority was under a positive obligation

to ensure that organisations contracted to

supply home care services respect the

human rights of service users by making

this part of the contractual arrangements

with the local authority.

In addition, private and third sector

organisations have to comply with the

HRA when they are performing ‘public

functions’. However, in 2007 the courts

interpreted the expression ‘public

functions’ as excluding services provided

by private and third sector care homes,

even when these were under contract to

local authorities.

This legal decision

leaves little doubt that contracted home

care services are also outside the scope of

the HRA. The effect of the court judgment

has been reversed by legislation

– but

only for residential care. Most home care

services are still not covered by the HRA.

Positive human rights

obligations

Public authorities have to do more than

just the minimum needed to comply with

the ECHR. The European Court of Human

Rights has clarified that the state has

‘positive obligations’ actively to promote

and protect the rights guaranteed by the

Convention. Because of the HRA, these

positive obligations must be taken into

account by our courts and tribunals and

also by other public authorities when they

are fulfilling their statutory powers and

duties. Positive human rights obligations

include duties to:

prevent breaches of human rights,

which may sometimes mean protecting

individuals from the actions of others

take measures to effectively deter

conduct that would breach human

rights

respond to human rights breaches,

which may include carrying out an

effective investigation

www.equalityhumanrights.com/homecareinquiry

The UN Convention on the

Rights of Persons with

Disabilities

The UK has also ratified a number of other

international human rights treaties, many

covering economic, social and cultural

rights as well as civil and political rights.

Some are highly relevant to older people

using home care services. Unlike the

ECHR, these other treaties have not been

made part of our domestic law – but they

can have an impact in other ways. They

can be a useful tool for interpreting

national legislation in the courts and

should be used as a set of guiding

principles for public policy-making,

although their impact has been patchy

because they cannot be directly enforced

in our courts.

There is no treaty expressly dedicated to

protecting older people’s human rights,

and the UN has paid limited attention to

older people when monitoring its other

treaties. However, the UN Convention on

the Rights of Persons with Disabilities

(CRPD) has a clear bearing on the present

inquiry, given the age-related increase in

the prevalence of disability: nearly half of

all disabled people are retired.

The CRPD sets out the standards that the

UN expects government and public bodies

to meet in delivering genuine equality and

inclusion for disabled people. It covers

civil and political rights similar to those in

the ECHR, but also extends to social and

economic rights such as an adequate

standard of living and social protection –

rights that have their origins in the

International Covenant on Economic,

Social and Cultural Rights. CRPD rights

are acutely relevant for older people using

home care services. However, as it is not

part of our domestic law, the CRPD cannot

be directly enforced in the UK courts.

Regulation of home care

services

The Care Quality Commission (CQC) is the

regulator for the health and social care

sector in England. It monitors the quality

of care given by all providers of social care

services, including private and voluntary

sector organisations. All care providers

must be licensed with the CQC and meet

their essential standards of quality and

safety.

The CQC’s essential standards come from

28 regulations and expected outcomes.

For each regulation, there is an associated

outcome setting out the experiences that

service users can expect as a result of the

care they receive. The CQC monitors how

well providers comply with these

standards by checking against the 16

regulations most relevant to the quality

and safety of care. For our inquiry,

probably the most important essential

standard is set out in Outcome 1. This

confirms that the CQC expects service

users to be involved in decisions about

their care and be treated with respect for

their privacy, dignity and independence.

The CQC currently takes a risk-based

approach to its monitoring, focusing on

providers that are identified as being at

the greatest risk of non-compliance with

the essential standards of quality and

safety.

www.equalityhumanrights.com/homecareinquiry

the average weekly cost to local authorities

for an older person in residential and

nursing care was £497. In contrast, the

average weekly cost of home care was

£145.

Who provides home

care?

We recognise the vital role that unpaid

carers have and the immense value of the

work they do in economic terms. However,

in this inquiry we focused on care

provided by paid workers.

Home care is an important and growing

sector of employment. Paid workers

include those working for local authorities

or private or voluntary organisations, and

personal assistants employed directly by

older people themselves.

Care workers who deliver support to older

people in their own homes can play a

pivotal role in promoting and protecting

human rights. They may be the only

contact with the outside world the person

they are visiting has that day (or even that

week).

The combination of frequent lone

working and high levels of individual

responsibility, coupled with the need for

highly developed communication and

practical skills required by good home

care workers are found in few other jobs

afforded such low value in our labour

market.

Part 2: About home care

People receiving home care have to trust

other people to help them with personal

and intimate tasks such as bathing,

dressing, meals and getting into bed.

When this help is delivered well it is done

in a way that respects the older person’s

privacy, respects their dignity and enables

them to decide how things get done –

essentially, it follows a human rights

approach to service delivery.

Who needs and benefits

from home care?

As people get older, they are increasingly

likely to need home care. Research

suggests that around 20 per cent

of older

people living at home receive domiciliary

services, and in 2009-10, an estimated

453,000 older people received home care

through their local authority.

In fact, 81

per cent of people receiving home care in

that year were 65 or over,

and as our

population ages, more people will

inevitably need home care in the future.

People aged 85 and over are the fastest

growing group – their numbers have

doubled since 1985, and are projected to

increase substantially in the next

decades.

Studies show that older people would

prefer to stay at home until it is impossible

for them to do so rather than move into

residential care

and that the benefits of

home care are enormous, both to

individuals and to the state.

Home care

provision also costs less than a place in

residential or nursing care. In 2008-09,

Inquiry into older people and human rights in home care

What are older people’s

rights to home care?

The social services department of a local

authority has responsibility for assessing a

person’s need for community care

services. Anyone who thinks they may

need home care can ask for an assessment,

and the local authority must carry one out

if the person appears to need the service.

The government has now introduced a

single assessment process for older

people, encouraging local social care,

health and housing bodies to work

together so that personal details do not

have to be repeated unnecessarily.

Local authorities may use a telephone

service as a first point of contact for

community care assessments. As we

discuss later, there are sometimes

problems with people being turned away

at this stage before they are able to talk

about their care needs.

Once a full assessment has been carried

out, the local authority must decide

whether or not to provide – or arrange –

care services for the individual

concerned.

If the person has been

assessed as having ‘eligible needs’, a

financial assessment will usually follow to

decide how much they should contribute

towards the cost of the services.

The government has issued guidance to

promote fairness and consistency in the

assessment process and each authority

sets its own eligibility criteria based on

this guidance.

The effect of financial

restraints

Over the last five or six years, with

increased financial restraints, many local

authorities have tightened their eligibility

criteria for care, making them very

restrictive. Most now only provide publicly

funded home care to people with ‘critical’

or ‘substantial’ needs. Before 2006, only

half the local authorities in England set

their eligibility levels at ‘critical’ or

‘substantial’, whereas in 2011 4 per cent

will only fund care for people with ‘critical’

needs and a further 78 per cent set

eligibility at ‘substantial’ needs.

This

means that an increasing number of

people have to pay for their own home

care or manage without support,

particularly individuals who are assessed

as having ‘moderate’ or ‘low’ needs. It also

means that whether or not someone is

entitled to publicly funded home care can

depend on which area they live in.

How is home care paid

for?

Most home care is subject to means-

testing although sometimes there is no

requirement to pay for it; for example, up

to six weeks home care can be provided

free of charge to avoid unnecessary

hospital stays and, occasionally, home care

services are funded by the NHS where the

person’s primary need is for health care.

In summary, an older person’s home care

might be paid for:

in full by the local authority (or in some

cases by the NHS)

partly by the local authority and partly

by the older person, or

www.equalityhumanrights.com/homecareinquiry

entirely by the older person (as a ‘self-

funder’).

Local authorities play an essential part in

protecting the human rights of older

people, particularly when commissioning

home care from private and voluntary

sector organisations. In 2008, an

estimated, 4.1 million hours of home care

were purchased or provided by local

authorities.

It is estimated that 80 per

cent of the home care provided by the

independent sector is commissioned by

local authorities,

who spent just over

£2.1 billion on home care for older

people in 2009-10.

Many home care providers are highly

dependent on local authority contracts.

Just over half of independent sector

providers do 80 per cent or more of their

work for local authorities.

There are

now almost 6,000 registered home care

providers – ranging from large national

private and voluntary sector

organisations with multiple branches to

small providers often operating from a

single office.

The numbers of care providers have been

rising in recent years with 68 per cent in

the private sector and 19 per cent in the

voluntary sector. In a survey in 2009, 74

per cent of those responding were stand

alone businesses and 26 per cent were

part of a larger business group.

How are human rights

relevant to home care?

Human rights apply to everyone, but they

are particularly significant for people

who have a greater risk of poor

treatment. Our evidence has confirmed

that older people using home care may be

at risk of breaches of their human rights,

especially when they depend heavily on

these services, if they have limited or

fluctuating mental capacity, or have little

contact with other people, particularly

supportive family members.

The right to respect for one’s home is

an important part of the European

Convention on Human Rights (ECHR).

As explained above, the Human Rights

Act 1998 (HRA) is the means by which

Parliament has brought the ECHR into

our own legal system.

Several Articles of the ECHR have key

relevance for people receiving home

care services:

Right to life (Article 2)

Prohibition on inhuman or degrading

treatment (Article 3)

Right to respect for private and family

life, home and correspondence (Article

8). As we explain below, this Article

also protects the right to respect for

one’s dignity and personal autonomy,

and the right to respect for social

relationships.

Right to peaceful enjoyment of

possessions (Article 1, Protocol 1).

Other Articles which may be relevant to

home care are:

Freedom of thought, conscience and

religion (Article 9)

Freedom from discrimination on any

ground in the enjoyment of other ECHR

rights (Article 14). This is not a free-

standing right; it must be used in

conjunction with another right under

the ECHR.

Inquiry into older people and human rights in home care

Central to the quality of older people’s

day-to-day experience of home care is the

cluster of rights protected by Article 8. Its

scope has been clarified by the European

Court of Human Rights to include the right

to respect for personal dignity,

one of the

most important considerations when

receiving home care. Article 8 also recognises

the right to respect for personal autonomy,

such as being involved in decisions about

one’s own life, controlling one’s own body,

and participating in society.

Certain rights under the ECHR – the right

to life and the prohibition against inhuman

or degrading treatment – are absolute and

cannot be removed or compromised. The

rights under many other Articles,

including the right to respect for private

and family life under Article 8, may be

restricted. However restrictions can only

be imposed if they can be justified as a

lawful and proportionate response to one

of the social needs set out in the Article

itself. For Article 8, these aims include

protecting the country’s economic

wellbeing, public safety, health or morals,

or the rights and freedoms of others.

More information about the Articles of the

ECHR, and their relevance to home care

services, can be found on our website.

Adopting a human rights

approach to home care

Individuals can use the HRA to challenge

any ill-treatment that is serious enough to

breach the rights guaranteed by the ECHR.

However, this legislation was designed to

provide a floor, rather than a ceiling, for

human rights protection – and to do more

than provide legal entitlements that can be

enforced in the courts. According to Lord

Irvine, former Lord Chancellor, the HRA

was intended to create a ‘culture of respect

for human rights’, so that public services

would be ‘habitually and automatically

responsive to human rights considerations’

in all their procedures and practices.

The Commission’s Human Rights Inquiry

found that, if a human rights approach is

properly understood and applied, it can

help to transform the way services are

planned and delivered, driving up

standards and providing a code of

behaviour for organisations. A human

rights approach provides an ethical

framework for ‘person-centred’ decision-

making by ensuring that rights are only

restricted where proportionate and

necessary. It can also provide guidance on

how to balance competing rights and duties

in situations where they conflict.

Similar conclusions were drawn by the

Joint Committee on Human Rights (JCHR)

in its report on the human rights of older

people in healthcare. The inquiry looked at

several case studies of NHS trusts that had

piloted a human rights approach to

commissioning and delivery of services.

The JCHR was persuaded that this

approach could make a real difference to

organisational culture and ‘quite evidently’

to the quality of service provision for

users.

The Department of Health has adopted a

human rights approach to health and social

care for older people through its Dignity in

Care campaign, which aims to demonstrate

how putting human rights at the heart of

health and social care services can deliver

better outcomes for service users and staff

alike. The campaign invites commissioners,

providers and service users to become

‘dignity champions’ for its 10 point ‘Dignity

www.equalityhumanrights.com/homecareinquiry

Challenge’, setting out clear expectations

for older people’s services. These

expectations include:

Having zero tolerance of abuse

Treating each person as an individual

Supporting independence, choice and

control

Respecting an individual’s right to privacy

Acting to alleviate loneliness and isolation

Making people feel they can complain

without fear of retribution.

By providing an accessible entry point to a

human rights approach, the Dignity in

Care campaign is a valuable initiative.

However, to have a complete picture of

human rights, service providers and

commissioners also need to understand

their duty to comply with enforceable legal

obligations under the HRA.

Case study

Care about Rights is a training and

awareness programme developed

by the Scottish Human Rights

Commission, designed to embed a

human rights approach into the

delivery of care for older people. The

programme, targeted at care providers,

care workers and older people, aims to

demystify human rights so that

decision-making and policy-making are

better informed and more accountable

and older people are empowered to

understand and claim their human

rights. This approach to training was

particularly effective in helping care

workers use a human rights approach

in balancing risk in decision-making,

including resolving conflict between the

needs of different service users.

A parallel human rights approach to home

care in England could bring similar

benefits. It could help change the culture

of service delivery, support a personalised

approach to care and encourage older

people to complain without fear of

retribution. It could also assist care

providers when they are faced with some of

the difficult decisions they routinely have

to make, such as whether a person’s right

to autonomy must be overridden in the

interests of their welfare. This case

scenario, taken from the Care about Rights

training programme, illustrates how a

human rights approach can help.

Case study

Marian, a housebound woman, became

depressed because she had not had a

shower for several weeks. The home

care provider decided to provide

Marian with only strip washes after

a care worker pulled a muscle trying

to manoeuvre her out of the shower.

A human rights approach would

emphasise the importance of

understanding the fundamental rights

at stake – in particular Article 8 (right

to respect for private and family life).

It would also involve critically

reviewing the available courses of

actions so as to balance Marian’s rights

with the interests of the care workers.

For example, have alternative options

been explored that better meet

Marian’s needs and interfere less with

her rights? Have staff been properly

trained in moving and handling?

Can more than one worker be

allocated, or can a hoist or specially

designed wheelchair be used?

How satisfied are older

people with the care

they get?

Around half of the older people, friends

and family members who responded to

our call for evidence reported that they

are satisfied with the service received.

“The Council home care service is

ultrareliable, even in bad weather,

and they are always cheerful … I have

tremendous respect for the work they do.”

Husband of older woman, North of

England

They most often highlighted that they were

happy with:

consistency of staff

reliability

staff interacting positively with them or

having time to talk to them

control over tasks to be carried out.

Skill and professionalism in

executing duties and tasks

Older people who were satisfied with their

home care often praised the skill and

professionalism of their care workers. This

was very important to older people whose

www.equalityhumanrights.com/homecareinquiry

Choosing to live at home

Care in people’s own homes allows older

people to continue to live as they wish

even once they can no longer carry out all

their day-to-day tasks without support. As

long as older people have the good quality

care they need to support them at home,

they can keep their independence and

control over their lives in familiar

surroundings.

“Both my parents have been enabled to

stay independent as long as they can due to

the adult social care they have been

provided with … [They] are able to enjoy a

dignified life, in their communities, at little

cost to the state, and remain in control and

as independent as they can be.”

Daughter whose parents receive

home care, Midlands

Many older people told us that they

wanted to remain in their homes as long

as they could – but that they could only

do this if they received good quality

home care.

Part 3a: The importance

and value of home care in

the lives of older people

Inquiry into older people and human rights in home care

safety and security could depend on their

home care worker, for example if they

were being assisted with taking

medication or having a bath. A number of

people told us about instances where

home care workers had gone beyond their

expectations to deliver a service that

really improved the quality of their life.

Sometimes this involved home care

workers staying longer than they were

paid for in order to make sure support

was provided in a sensitive and

personalised way.

Small things can make a big difference:

home care providers who shared

examples of positive feedback they had

received from older people highlighted

the significant impact on people’s quality

of life of things that at first sight might

not seem so important, such as being able

to have a regular shave and keep up the

same standards in their appearance as

they had before they required support.

We received evidence from many older

people who began receiving home care at

times of stress and illness in their lives.

Some of the experiences they described to

us illustrated how the quality of the home

care they had received had made a

significant difference to their self-

confidence and ability to cope at a

difficult time in their lives when they had

felt extremely vulnerable.

Older people’s

relationship with

home care workers

Care workers can sometimes be the only

person older people see from day to day.

Bearing in mind the often intimate tasks

they carry out, it is important for many

older people that they have a good

relationship with their care workers.

“We have a good laugh which is what I

need, they do the job, but we joke and

laugh at the same time. It is important

because when you are like us, you

don’t go out, you don’t ... see anybody.

They are friends.”

Woman, 70, lives with partner, self

funded

Many place great value on conversation,

being able to have a chat or a laugh

together – indeed, for some this is more

important than getting all the practical

tasks done.

Older people also emphasised the

importance of how services are provided.

The attitude and approach of home care

workers while carrying out tasks were of

real significance to them.

Older people said they expected and

wanted to be treated as individuals by care

workers – to:

be the focus of attention during visits

have their needs and wishes listened to,

understood and attended to

be spoken to kindly and politely.

www.equalityhumanrights.com/homecareinquiry

Views of home care workers

These views were echoed by the majority

of home care staff giving evidence to the

inquiry who told us about key elements of

their work that they found satisfying, such

as:

helping older people to keep their

independence and stay as long as they

wanted in their own homes

talking to older people and getting to

know them as individuals

knowing they had provided high-

quality, respectful care

having the flexibility to offer the

support that people wanted

being able to use their initiative.

Workers described the pride they took in

their work and how job satisfaction was

greatly increased when they could see the

positive impact of their work on the lives

of older people and their families.

The following examples show the

aspects of their job that care workers

found most satisfying:

“I can contribute to keeping the

service user in their own home with

their own dignity and independence.”

“To see people maintaining a life at

home, in their own surroundings ...

where they feel safe and secure.”

“When I made a service user a

proper English breakfast with all

the trimmings and the response

made me feel good. Something so

easy you take for granted, made

their day and mine.”

Home care workers recognised the

important role that they played in the lives

of many older people they cared for,

particularly if they had limited interaction

with others.

“We are important to service users as

sometimes we are the only people they

see regularly.”

Home care worker employed by

local authority

The evidence from these care workers

suggests that they were instinctively,

if not consciously, using human rights

principles to inform their work with older

people. Giving a high priority to valuing

older people as individuals, respecting

their dignity and independence and

understanding the value of social

interaction are all hallmarks of an

approach that promotes and protects

human rights. It is clear that an important

spin-off from using this approach is the

increase in job satisfaction that workers

described.

www.equalityhumanrights.com/homecareinquiry

Many older people are highly satisfied

with their home care and there is no doubt

that good quality home care has a huge

positive impact on their lives. However,

the problems set out below – whilst not

the full picture – do represent a range of

older people’s experiences and raise issues

of real concern.

The evidence gathered from older people

and their families, care workers, home

care providers and bodies working with

older people, and local authorities, shows

some good practice, but also some very

poor treatment.

We have seen that, because of the HRA,

public authorities must fulfil their

statutory powers and duties in a way that

complies with rights under the ECHR.

They may also have to fulfil positive

obligations to promote and protect the

human rights of people receiving services.

The ECHR rights most likely to be relevant

to home care include protection from

inhuman or degrading treatment and

respect for private and family life,

including dignity and personal autonomy.

The purpose of this inquiry was not to

assess whether human rights had been

breached in individual cases, which would

depend in every case on the type of

treatment, its frequency and severity and

the circumstances in which it took place.

Yet it became clear to us that some older

people were likely to have been victims of

breaches of their rights under the ECHR.

In many instances it is impossible to think

of any circumstances that would justify the

treatment that these older people received.

In the worst cases, we heard of older

people not being fed, or being left without

access to food and water, or in soiled

clothes and sheets. In numerous other

instances older people were ignored, strip-

washed by care workers who talked over

them, confined to their home or bedroom,

put to bed in the early afternoon and

unable to participate in their community.

Older people’s physical

and emotional

wellbeing

Support with food and drink

Older people, their families and voluntary

organisations all brought up concerns

about older people getting adequate food

and drink.

In some cases they were unhappy with the

quality of the food, for instance:

the care worker was only able or willing

to prepare a limited range of food

(heating tinned food or microwave

meals, sandwiches)

Part 3b: Our findings on

the protection of human

rights in home care

Inquiry into older people and human rights in home care

the food provided was not always

suitable (for instance culturally

appropriate for Asian or African-

Caribbean people)

concerns with frozen meals replacing hot

meal delivery service

poor nutritional content of meals.

Many further concerns were about older

people not being given the support they

needed to eat and drink.

In some cases this was due to lack of time.

The daughter of an older woman with

Huntington’s disease described the serious

consequences of her mother receiving no

help with eating or drinking. This

treatment might well amount to inhuman

and degrading treatment within Article 3 of

the ECHR.

“Carers were supposed to feed and give

drinks but simply left them beside a person

who was physically unable to feed herself

because the carers had to go to their next

client. My mother went down to 7 stone.

Someone with Huntington’s needs an hour

per meal to swallow food/drink, and special

care when it all falls out of their mouth, and

they get very damp and dirty. They also

need 4,000 calories per day to maintain

body weight due to the chorea movements

that constantly burn energy.”

Daughter of older woman, South of

England

In other cases, care workers believe they

can’t help, due to food standards

regulations, or possibly health and safety.

A number of responses to the call for

evidence from older people and their

families raised concerns about home care

workers saying they could not prepare any

food, or in some instances even heat up

food in a microwave. One woman described

how her elderly mother, who was in the

advanced stages of terminal cancer, was

forced to heat up her own food. Although

the severity of this neglect may fall short of

‘inhuman or degrading treatment’, it would

certainly amount to a breach of this

woman’s right to respect for private life

under Article 8 of the ECHR.

“In one incident an able-bodied, healthy

32-year-old female member of staff stood

and watched as a 76-year-old woman with

advanced cancer struggled from the lounge

to the kitchen to microwave this dish

herself, because the worker could not do

this ‘because of health and safety’; although

apparently this did not preclude the worker

from dishing up the microwaved meal onto

a plate. These ‘small’ acts of cruelty are

being enacted, possibly unthinkingly,

every day.

‘It is hard to think of a reason or excuse

big enough adequately to cover such a

fundamental lack of care from one adult

to another at such a basic level as the

provision of food.”

Daughter of woman in 70s, self

funded

www.equalityhumanrights.com/homecareinquiry

This approach to food safety may, in part,

be influenced by a belief that the

preparation of food by home care workers

is covered by Food Standards Agency

regulations which apply strict rules to

businesses such as restaurants; or a

misinterpretation of health and safety

requirements.

The Health and Safety Executive were

clear in their evidence to the inquiry that

care providers needed to take an

approach based on ‘sensible risk

management’, focused on how the

obvious benefit of the provision of care to

older people can be delivered safely.

“HSE expects employers and workers

to take a sensible and proportionate

approach to assessing any risks … real

risks and not trivial risks … [they] should

focus on how to complete the task safely,

rather than providing reasons for leaving

it undone.”

Health and Safety Executive

The HSE told us they could see no

reason why workers should not heat

pre-prepared meals in a microwave.

In some cases, care workers just don’t

appear to consider older people’s needs

properly. For instance, they would

prepare food for people with dementia,

but then just leave it for them rather than

prompting them appropriately to eat, or

would put it in the fridge where the

person would not see it and so would

forget to eat it.

“I know one lady, she had Alzheimer’s.

The carer came in in the morning and

dressed her; got everything ready and

made a sandwich, ‘You eat that at

lunchtime. I’ll put it in the fridge ...

because of health and safety,’ and the old

lady ... she forgot and by night time ... the

sandwich [was still there] ... She hadn’t

had anything to eat until her daughter or

the carer came in at night. It’s the same

with drinks. It’s health and safety kicking

in and making it impossible, really.”

Co-ordinator, voluntary sector

organisation offering support to

older people

Families and voluntary sector

organisations supporting older people

reported a number of instances where

older people had suffered severe weight

loss and dehydration because they did not

get the support they needed to eat. We

were told about the case of one older man

with dementia who lost so much weight

due to not being supported properly by

home care workers to eat that he was

admitted to hospital and died three days

later. In this case, the individual was

probably subjected to inhuman or

degrading treatment in violation of Article

3. If his death was as a result of this

neglect, there may also have been a breach

of Article 2 of the ECHR – the right to life.

Some organisations told us of instances

where home care workers placed food in

front of older deaf/blind people, but did

not let them know it was there, or left it in

an inaccessible place – resulting in these

people missing meals.

Inquiry into older people and human rights in home care

Physical abuse was most often in the form

of rough handling or unnecessary physical

force directed against older people. The

daughter of one older man receiving home

care described how her father had suffered

skin injury as a result of rough handling by

care workers. Another older woman

described being pushed by her care worker,

an event which left her shocked and upset.

“Most of the girls [from the agency] were

nasty; they were rough. Rather than say ‘sit

in the chair’, they’d push me back into the

chair, that sort of thing, and I didn’t like

that … It was only on one occasion; I

recognised it as a push. She wasn’t nice at

all … I couldn’t do anything about it. I can’t

even walk and I think they know this you

see; they know you’re vulnerable.”

Woman, 78, lives alone, with local

authority and self-funded care

Neglect of personal care

We heard about a number of instances

where the care specified in the older

person’s care plan was not carried out by

the home care workers. As many home care

packages do not cover more than the basic

tasks necessary for physical wellbeing, any

failure to follow the care plan can cause

neglect of the older person and is also likely

to be in breach of the right to respect for

private life under Article 8 of the ECHR.

Depending on the severity and frequency of

this neglect, it could even reach the

threshold for a violation of the prohibition

on inhuman or degrading treatment under

Article 3 of the ECHR.

Case study

Sense (voluntary sector

organisation working with

deaf/blind people)

A Sense worker bumped into a care

worker coming out of Sam’s house as

the Sense worker entered. The care

worker was wondering why Sam hadn’t

eaten his breakfast for the past three

days. It transpired that the care worker

had left the breakfast out on the

kitchen countertop every day, but

without letting Sam know that she was

there, or that his breakfast was in the

kitchen. Neither the care worker nor

other care workers doing the later visits

had reported that Sam had not eaten

his breakfast to the agency.

Concerns about systemic failures to ensure

older people have enough to eat and drink

in other care settings are well documented

For example the CQC reported in October

2011 that half of the hospitals they

inspected are failing to meet the

nutritional needs of older people.

Our

findings indicate that this is a serious

concern in home care too.

Physical abuse

A small number of care providers, local

authority staff and individuals mentioned

physical abuse of older people receiving

home care. Intentional ill-treatment of

this nature will almost always be a breach

of the victim’s right to respect for private

life under Article 8 of the ECHR even if it

does not reach the threshold for a breach

of Article 3.

www.equalityhumanrights.com/homecareinquiry

“For several weeks Mum was not bathed

or had her hair washed.

One time carers decided not to do any of

her washing any more, even though [it

was included] on [her] care plan, leading

to my Mum being left in filthy nightwear

and clothes and bedding. They did not

inform [the] agency or me as family.”

Daughter of woman in 80s

receiving home care, London

Often this seemed to come down to lack

of time. It was a very common complaint

that staff rushing through tasks could

result in some key tasks not being

completed or in staff having to do other

tasks too hurriedly.

“[Home care workers] often rush and

leave early, leaving my Mum in distress,

dirty and without water and food.”

Daughter of woman in 80s

receiving home care, London

“They are supposed to do an hour in the

morning and an hour in the evening, but

... she’s gone within 10 to 15 minutes.”

Woman, 85, living alone, local

authority funded home care

Some older people told us that the tasks

that needed to be done really couldn’t be

achieved in the time allocated. For

example, one older woman with severe

arthritis, which slowed her movements,

told us that by the time her home care

workers had supported her to wash

there was no time left for breakfast,

meaning that she was often left with just

a cup of tea until lunchtime.

These time shortages experienced by older

people often stem from what the local

authority has commissioned from a care

provider and how the contract is managed,

which is detailed in Part 3c below.

Patronising or ignoring the older

person

It does not seem a lot to ask for care

workers to treat older people as

individuals, to listen, and to be kind and

polite. However we came across numerous

instances where home care provided to

older people fell below these expectations.

Older people and their families reported

concerns at how some home care workers

interacted with them. This included

speaking as if to a child or in a

condescending or exaggeratedly loud or

slow voice, not bothering to check how

people wanted to be addressed and

adopting an inappropriately informal

tone. We were told how patronised people

felt by this communication style which

appeared to be rooted in ageist attitudes.

Older people were clear that they wanted

to be communicated with as individuals

rather than in a way based on stereotypes

around their age.

“Some staff ‘talk down/shout’ at my

mother thinking they will ‘get through’

to her by doing so. She is an intelligent

woman and isn’t hard of hearing.”

Daughter of older woman, part

funded by local authority

We also heard of care workers who were

so fixated on completing their tasks in the

set time that they seemed to view the

person themselves as one of their ‘tasks’

Inquiry into older people and human rights in home care

rather than a human being with thoughts

and feelings.

Some, when working in pairs, would chat

to each other over the head of the older

person, ignoring them – sometimes even

while they were giving older people

intimate personal care. We also heard

instances of care workers chatting on

their mobile phones while providing care.

Although this lack of respect for the

dignity of the service user may not be

intentional, it still falls short of the

standards of care required by Article 8.

It also fails to meet Outcome 1, a key

component of the CQC’s Essential

Standards of Quality and Safety.

“There were two [local authority] care

workers there, and they were talking to

each other over the client, who was blind,

completely ignoring him while they were

assisting him. So here is a gentleman

who’s registered blind, two people are

talking to each other while they’re doing

things to him, as if he’s a lump of meat,

and they’re not even explaining what

they’re doing.”

Senior manager, voluntary sector

organisation

Good practice – the use of ‘life

stories’

A number of organisations have adopted

a human rights approach to combat this

dehumanising attitude towards older

people, particularly those with dementia.

One approach is through the use of ‘life

stories’, where a range of information

about an older person’s history, key

relationships, likes and dislikes is

recorded, usually in the form of a

scrapbook. Although this is more

commonly used with people who have

dementia, it could be relevant to

supporting many older people who wish

to share this information, especially

when they have many different care

workers.

We received evidence that this has a

positive impact, making sure that services

are focused on the person as an individual.

When workers have a more rounded

picture of the person they are working

with, they can begin to take a far more

person-centred approach, which can

overcome some issues related to the

time and task-focused delivery of care.

It also supports workers to develop an

approach which respects the individuality

of each person.

“I think to look at how people were and

what people used to do is absolutely

vital and (to) try to extend that into

everyday life.”

Care provider

We were told about the impact on staff of

this approach.

‘People were saying things like, “You

know, I understood more about this

person… it gave me an opportunity to see

them as a person, and that helped me

understand their behaviour so we started

to change the way that we deliver care.”’

The Department of Health has recently

funded a project aimed at supporting and

embedding the delivery of Life Story work

into work with older people with

dementia.

www.equalityhumanrights.com/homecareinquiry

Financial abuse

We were told about a number of instances

of financial abuse of older people receiving

home care. In their evidence to the

inquiry, Action on Elder Abuse shared a

number of examples of older people, often

with dementia, who had had money

systematically stolen from them over a

period of time by current and former care

workers. Regular theft of this sort by care

staff is likely to breach the right to

peaceful enjoyment of possessions under

Article 1, Protocol 1 of the ECHR, as well

as being a breach of the right to respect for

private life under Article 8. Of course, it

also amounts to criminal activity.

We were also told repeatedly about the

important role that well trained care

workers play in protecting older people in

vulnerable situations from financial

exploitation. This was illustrated by one

older person we interviewed, who

explained that when his current care

worker was appointed she noticed that he

was underweight and there was very little

food in the flat. This was due to the actions

of two supposed ‘friends’ who had been

taking the older man’s pension and all his

savings over time, under the guise of

helping him with banking and shopping.

The care worker supported by her agency

brought in the police, with the older man’s

agreement, and his situation has now

improved greatly as a result.

Lack of autonomy and choice

Older people expressed a widespread

desire to be treated as a person rather

than as ‘a task to be undertaken’. People

need to feel in control of their lives,

particularly if they are frail and feel

vulnerable. Yet we were inundated with

examples of control being removed from

older people in numerous avoidable ways.

Respect for personal autonomy is one of

the rights protected by Article 8 of the

ECHR. Autonomy is also a central

principle of the Convention on the Rights

of Persons with Disabilities. In the

delivery of home care, the lack of control

and choice many older people have over

the timing of their home care visits can

undermine their personal autonomy

and this treatment could, in some

circumstances, be a violation of Article 8.

The time of day when home carers were

scheduled to visit and whether they

arrived on time are of great importance to

older people. It affects what else they can

do during the day and issues such as

timing of taking medication.

Many older people told us they had little

or no control over what time the home

care visits took place. We heard of many

instances where older people were forced

to stay in bed for long periods of time,

sometimes in soiled incontinence pads. In

one instance an older woman was put to

bed at 5pm and not helped to get up until

10am – a period of 17 hours. This is likely

to amount to an unjustifiable breach of the

right to respect for autonomy under

Article 8, as well as a breach of the right to

respect for dignity.

“Going to bed too early causes many

problems – spending long nights lying

sleepless, missing evening entertainment

and time with spouses and family, not to

mention the humiliation of being treated

like a child.

The earliest we were told of someone

being put to bed was 2.45 pm.

“The carers … get Mum ready for bed at

4.30pm. Mum would prefer this later but

the only slot given was after 9.30pm and

this was too late for her, and they

sometimes did not come. So I agreed to

4.30pm. This does not always work; last

week one carer arrived at 2.45pm to get

her ready for bed. Apart from loss of

dignity, she needs her stockings on longer.”

Daughter of woman in her 90s,

North of England, part-funded local

authority care

Inflexibility

A number of older people raised the issue

of inflexible services where workers

adopted a rigid approach, delivering

the tasks they had listed to the letter,

without taking account of older people’s

fluctuating conditions, changing

circumstances or individual wishes. This

inflexibility can be driven by the time and

task approach to commissioning which

some local authorities adopt, as detailed in

Part 3C below. Although the failure to take

into account individual wishes might not

qualify as a breach of the service user’s

rights under Article 8. it would fall short

of standards required by Article 19 of the

CRPD, which expects the state to ensure

that disabled people have the same right

to choice and control as non-disabled

people.

In some instances this mechanical

adherence to a set list of tasks flew in the

face of common sense. In one example a

care worker refused to help an older

woman off the toilet or seek assistance

when she was stuck. Instead of helping

her, the care worker performed the

allocated tasks and left the older woman

on the toilet with her lunch waiting for her

downstairs until she managed to get

unstuck. This lack of respect for the older

woman’s dignity could amount to a breach

of Article 8 of the ECHR – the right to

respect for private life.

“I had a lady who was on the toilet when

the carer came, she shouted, ‘I’m stuck,

I need some help.’ The carer shouted up,

‘Can’t do that, but I’ve made you a butty

and I’m going now.’ ‘But I’m stuck on

the toilet,’ and she said, ‘I’ve made you

a butty.’”

Local authority officer, North of

England

In other cases an inflexible approach

prevented the care workers from meeting

the express wishes of older people. For

example, one older woman wanted help

with meal preparation and assistance to

get out into her garden whilst maintaining

control over her intimate personal care.

“[The team of care workers] made clear

they expected to wash and dress my mum,

despite her wishes to do this herself. They

appeared ill equipped to think of the other

aspects of living in a house that use

someone’s energy with which they could

help and, in so doing, leave the person

with sufficient energy to be able to

continue to wash and dress herself.”

Daughter of recently deceased older

woman, South of England

A few older people had decided to fund

their own care rather than seek publicly

funded care, precisely so that they could

decide how their care worker’s time was

Inquiry into older people and human rights in home care

www.equalityhumanrights.com/homecareinquiry

used. In some cases it was due to a wish to

be looked after by someone they knew, or a

belief that they could obtain a better

quality of care than that provided by the

local authority. They were happy with

these private arrangements, even though

there seldom appeared to be much of a

safety net if their care worker was to fall

sick or leave their job suddenly.

Lack of respect for privacy

Some older people told us about what

appeared to be a complete disregard for

their privacy when home care workers were

supporting them to undress, bathe and

dress. Where individuals experience such

insensitive treatment on a regular basis,

this may well fall short of the standard of

personal care required by Article 8, which

includes the right to respect for personal

privacy and dignity. If the instances are

isolated ones, the CRPD could be relevant:

the state is expected to ensure that every

disabled person has the same right as

anyone else to respect for their physical

and mental integrity (Article 17).

As mentioned earlier, this lack of respect

for privacy seems to stem from workers or

their managers not thinking about the

older person as an individual who needs to

be accorded dignity and respect for their

personal privacy.

“There is a constant parade of new staff

passing through the house, to be ‘trained’.

[My] personal dignity is not respected.

‘Trainees’ turn up unannounced and the

agency fails to contact us beforehand to

ask permission.

I have MS and am very severely disabled,

and feel my dignity when being showered

and dressed is not being respected when I

have several trainees observing quite an

intimate routine.”

Man, aged over 65, East of England,

self-funded care

One interviewee described how her

husband looked like a ‘scared rabbit’ lying

naked on his bed while being strip-washed

by home care workers. She felt that no

attention was paid to his dignity but that

with only a little effort on the workers’

part, for example covering him with a

towel, the process could become far more

bearable for him.

The high staff turnover rate of care workers

also impacts on older people. They

described the emotional impact of having

intimate personal care tasks performed by

a large number of different people, and the

frustration of having to repeatedly disclose

personal information every time a new

care worker came to the house. One older

woman recorded having 32 different home

care workers over a two week period,

which could quite possibly amount to an

unjustifiable breach of her right to respect

for private life under Article 8.

One older man who was unable to get up

without support described his terror as he

lay in bed and, after hearing a key in the

lock, saw a stranger standing in his room.

It turned out that the person was a new

care worker, replaced without notice from

the agency. At the very least, this would

appear to be a failure to comply with

Article 19 CRPD, which gives disabled

people the same right to choice and

control as non-disabled people.

As in other aspects of care, a common

theme was the impact on people’s dignity

when staff have to rush tasks that intrude

on personal privacy:

Older people told us they felt demeaned

and stripped of their dignity when

staff perform intimate care tasks in a

distracted and rushed way, without

having time to talk to them about

how they would like care tasks to be

carried out.

The impact of staff rushing could be

greater on older people with dementia,

who might need longer than others to

recognise workers and recall why they

were there. One interviewee described

the extremely distressing impact of staff

rushing into the home of an older

person with dementia and quickly

removing their clothes for a strip-wash

– before the older person had fully

realised who the care worker was and

the purpose of their visit.

Older people told us that care workers

not having time to talk to them while

carrying out care tasks not only added

to their sense of isolation, but made

them feel like objects having things

done to them rather than individuals

receiving a service. Some were made

to feel as if they were a burden or an

impediment in the way of a busy

worker.

These three issues illustrate how time

pressures on care workers undermine the

prospect of older people’s privacy and

dignity being respected. This evidence

suggests that it may be difficult for

providers to adopt a human rights-based

approach to home care unless the problem

of time constraints can be addressed.

Lack of personal security

Concerns were raised about the risk to

personal security of constant changes of

home care workers, especially when older

people were not informed of changes.

The impact was even more significant

for particular groups of older people,

for example older people with visual

impairments and people with dementia.

“It is frightening to open your door to

someone you don’t know and whom you

can’t see. Couldn’t someone phone me to

say there’s going to be a different person

today?”

Older person with visual impairment

– from Joseph Rowntree Foundation

written response to call for evidence

“If you’ve got a client who has dementia …

they need regular bodies. Somebody

different coming every day, perhaps two

and three times a day, is a real problem

for them because they then get to the

stage where they’ll just let anybody in.”

Co-ordinator, small voluntary sector

organisation, North of England

Insufficient attention to

diverse needs

Interviewees from voluntary sector

organisations offering support to older

people emphasised that older people are

not a homogeneous group with similar

needs. However they felt that they were

treated as such by some local authorities

and care providers.

Inquiry into older people and human rights in home care

www.equalityhumanrights.com/homecareinquiry

“I spend a lot of my time now trying to

explain to the council for example that

older people are not a homogenous group,

and I think that’s how they’re seeing them,

they’re just old. Actually they are gay, they

are black, they are disabled, they have

mental health problems.”

Director, voluntary sector

organisation, South of England

The experiences of different groups of

older people attending our focus groups

demonstrate that a one-size fits all

approach towards the provision of home

care can impede respect for diversity and

create anxiety for some service users.

Sexual orientation and transgender

Participants at lesbian, gay and bisexual

and transgender focus groups expressed

real fears about their future as they had

very little confidence that home care

workers would be trained and supported

to provide a sensitive service, free from

prejudice. Organisations supporting

lesbian, gay and bisexual older people told

us about people they had had contact with

feeling the need to remove all signs of

their sexual orientation from their houses,

such as pictures of their partner, in order

to avoid negative reactions.

“Older Lesbian, Gay, Bisexual and Trans

people quite often, we have found, face

harassment or misunderstanding … or

ignorance of their needs in services so they

often have to go back into the closet for

fear of the reaction that they might get

from care providers.”

Voluntary sector organisation in

focus group

The main fears expressed were:

the impact of constant changes in home

care workers, as they would need to

‘come out’ as each new worker started

negative reactions from staff involved

in assessment and delivery of home

care.

These fears were sometimes realised. One

older transgender woman described being

stared at like a ‘freak’ by her home care

workers and sometimes sitting crying

after they had left. An older gay man with

dementia decided to stop receiving

services because of the homophobic

reaction of care staff. This had led to him

having to move into residential care

earlier than necessary as his elderly

partner had struggled to cope alone with

caring responsibilities. Examples such as

this raise potential concerns under Article

8, the right to respect for private and

family life. It also raises issues under

Article 14 (which guarantees the

enjoyment of ECHR rights without

discrimination of any kind) in conjunction

with Article 8.

Older lesbians, gay and bisexual people

told us that they would like to see

assurances in literature produced by care

providers that their specific needs

wouldn’t be ignored and prejudice from

staff would not be tolerated. They

emphasised how reassuring they would

find steps of this kind. However, some

care providers we interviewed perceived

sexual orientation as a ‘personal issue’

that had no bearing on the delivery of

home care and was best not raised. Others

did flag it up as an area where action was

needed due to ‘ignorance and lack of

competence in the workforce’.

Inquiry into older people and human rights in home care

Cultural heritage and religious

beliefs

The state has a positive obligation to

ensure the peaceful enjoyment of the right

to respect for religion and belief under

Article 9 of the ECHR. We were told of

some encouraging examples of care

providers taking into account religious and

cultural needs; for example, care workers

supporting Jehovah’s Witnesses who do

not take certain medication or, for Muslim

clients, showing respect for the Qur’an.

On the whole, however, it was suggested

that not enough consideration is given to

these issues. More training to raise

awareness was seen as fundamental by

local authorities, providers and voluntary

organisations.

“People have told us from all sorts of

backgrounds … that to them (ignoring

their cultural and religious beliefs), that’s

almost like a form of abuse because it’s

so important to them, that they feel like

they’re not being respected ... It’s

something that’s not being adhered to in

the way that they want, and then that takes

away from their choice and autonomy.

It’s distressing for people.”

Director, national brokerage

organisation

Care packages do not generally cover

giving support to attend church/temple etc

– this only happens if it is being paid for

or provided by a voluntary group or the

older person’s family. In the interviews

with older people, some mentioned the

important role religious activities played

in social interaction and support. For

one older man church members were

instrumental in getting him into sheltered

housing and access to home care. In

another case, church members provide the

older person with a lot of social support.

The provision of culturally appropriate

food and not just ‘standard’ frozen meals

is very important to some older people:

for instance, a number of voluntary

organisations highlighted that many

older Muslims they worked with don’t

trust that food provided is Halal.

Disabled older people

Evidence submitted to the inquiry from

organisations working with older disabled

people and from older people themselves

highlighted the fact that for many older

people, particularly those over 85, sensory

impairment is the norm, with only a

minority of older people not experiencing

some degree of hearing or sight loss. Over

seven out of ten people over the age of 70

have some form of hearing loss and one in

five people aged 75 and over are living with

sight loss.

We were told by organisations supporting

older people that it was quite common for

older people’s impairments not to be taken

into account in home care. Questions

were also raised about skills of home

care workers in relation to issues such as

communicating effectively with older

people with sensory impairments. Some

interviewees believed that younger disabled

adults would be less likely to experience

these difficulties to the same degree. These

reports suggest concerns about compliance

with Article 14, which guarantees the

enjoyment of ECHR rights without

discrimination of any kind, taken in

conjunction with Article 8.

www.equalityhumanrights.com/homecareinquiry

Social and civic

participation

The proportion of the population living

alone increases with age, and many older

people we interviewed spend much of

their time at home on their own. In the

UK in 2010, around 25 per cent of those

aged 65 to 74, and 45 per cent of those

aged 75 and over, lived alone.

Our interviews with older people

revealed a pervasive sense of isolation

and loneliness for virtually all; this was

especially bad for those who lived alone.

Many older people who responded to the

call for evidence also told us they did not

get regular opportunities to leave their

homes and our evidence suggested there

were relatively few packages of home

care that included support for activities

outside the house. Article 8 of the ECHR

includes the right to create and maintain

social relationships with other people. In

some limited circumstances, this could

mean that local authorities have a

positive obligation to remedy extreme

isolation experienced by individuals who

depend on care services to maintain

relationships with others by getting out

of their homes. We received evidence

that packages of home care for younger

disabled adults and for children

commonly include support for social

activities. Once again, this raises

concerns about compliance with Article

14, which guarantees freedom from

discrimination in the enjoyment of

ECHR rights, taken in conjunction with

Article 8 (the right to respect for private

and family life).

“I’m stuck here all day long, and I look at

the sun and I think, I wish I could get out

there … if you’re stuck between four walls

of a day, every day, that is like living in a

box being squeezed in.”

Woman, 78, lives alone, local

authority funded

“I am on oxygen 24 hours and I walk

with a stick, and I would love to go out

shopping or even just driving around

and someone to talk to.”

Woman, aged over 65, living alone,

South of England, local authority

funded home care

Almost all older people we interviewed felt

cut off from everyday life and deprived of

human company, referring to ‘gaol fever’

and inescapable boredom. The minute

passage of time in a day became a major

focus, with one older woman sleeping as

much as possible to pass the empty

expanses of time.

We heard of some older people trapped in

their homes, sometimes due to the lack of

simple physical adaptations, or often due

to lack of transport and support to get out.

One older man said he was still waiting,

three months after contacting a social

worker, for the front and back doors of his

house to be adapted so that he could leave

his home in his wheelchair. He hadn’t

gone outside on his own since he had

acquired his wheelchair six months

previously, following an amputation.

This severe restriction on the man’s

contact with the outside world is likely

to be in breach his right to respect for

private life under Article 8.

Inquiry into older people and human rights in home care

Some organisations also highlighted that

older people with sensory impairments (for

example, older people with hearing

impairments, older deaf/blind people)

suffered even greater risk of isolation.

Another group also repeatedly highlighted

as being at increased risk of isolation were

older people living in rural areas, where

there are fewer community facilities and

access to public transport is limited.

As we have observed, care plans for older

people rarely make provision for social

participation. However, there are a large

number of voluntary sector organisations,

including local Age UK organisations, the

Alzheimer’s Society and other community

groups, that provide a range of services –

including befriending schemes and

neighbourhood warden services – designed

to address older people’s social isolation. In

some areas local befriending services have

been commissioned by local authorities.

In interviews, concern was expressed that

financial constraints were having an

adverse effect on such services. In some

cases, befriending activities had ceased

altogether. In other areas, face to face visits

had been replaced by telephone based

services which were perceived as an

inadequate alternative because they would

be difficult to access for many older people

with sensory impairments and lacked the

direct personal contact valued by older

people.

The impact of isolation

Interviewees from organisations working

with older people thought that older

people’s experience of isolation had an

impact on other areas of their life, including

their mental and physical health and

confidence.

“Social isolation of older people … does

have a big impact on their emotional

wellbeing. And also it seems to impact …

on their memory … when they don’t see

anybody and they lose certain skills.”

Manager, voluntary sector

organisation, North of England

A number of submissions from

organisations stressed the importance of

recognising and addressing issues of

isolation, and ‘reframing’ home care for

older people to include elements that

would considerably increase older people’s

quality of life such as support to develop

and maintain relationships and participate

as a member of the community.

Maintaining family

relationships

Respect for the right to family life is

expressly protected by Article 8 of the

ECHR. A number of older people and their

family members told us about the

disruptive impact that poorly delivered

home care had on their family life.

Relationships, routines and normal family

life were disrupted by artificially early

bedtimes, late or early arrival of care

workers and the stress of care and support

delivered without dignity or respect.

One woman reported that she wanted to die

due to her lack of control after an injury to

her spouse, who was her main carer, led to

her needing home care. This lack of control

included being told by an assessor that her

husband’s bed should be moved out of their

shared bedroom to make it more

convenient for staff to provide care, an

incident that would be inconceivable if a

human rights approach had been

embedded into the assessment process.

www.equalityhumanrights.com/homecareinquiry

“I said, ‘No way, that’s my husband’s bed’.

But she just said ‘that’s got to come out’.”

Woman, 76, lives with partner, direct

payments from Independent Living

Fund

The experience of home

care workers

We received evidence from home care

workers who worked for local authorities

and in the private and voluntary sectors. The

vast majority of workers highlighted aspects

of their jobs which they were dissatisfied

with, and identified elements which stopped

them working in the way that they would

like. These issues reflected the areas that

older people themselves raised with us.

One of the most frequent issues raised by

workers, particularly from the voluntary

and private sectors, was not having enough

time to deliver care to a standard that they

wanted. One in four workers who responded

to the call for evidence mentioned this as one

of the least satisfying elements of their job.

“The least satisfying is not having enough

time, you try not to hurry them [older

people] (or to let them know you haven’t

enough time) but you are aware that your

next client is watching the clock and waiting

for you to arrive.”

Home care worker – voluntary sector

provider, South West

They also mentioned the stress involved in

travelling between service users, sometimes

considerable distances, under time pressure

and their frustration at not being able to

take a ‘common sense’ approach and use

their initiative in their work.

The impact on older

people

It is hard to overstate the negative impact

of the failure to apply human rights

principles to the day-to-day care of older

people. We saw many tears and came

across frustration, expressions of a desire

to die, and feelings of being stripped of

self-worth and dignity – much of which

was due to avoidable factors. Many

affronts to dignity stem from easily

rectifiable issues, such as not covering

somebody with a towel while washing

them. If this treatment is persistent, it

can make life a misery.

Many of the instances cited would not

necessarily make the news but their

accumulated impact on older people can

be profoundly depressing and stressful.

“It wasn’t just one thing, they’ve mounted

up...”

Man 69, living alone, local authority

funded home care

“It was terribly stressful. I’d never had

anything like that before. It was this

intrusion into my home, I felt worse than a

baby ... a package that was just left there.

They would come in and do this and that,

and go again, and then come back. I just

wanted to curl up and die. I was

diminished. I wasn’t me any more ... A

pudding, not quite a human being. My life

was ... taken over.”

Woman, 76, lives with partner,

direct payments from Independent

Living Fund

www.equalityhumanrights.com/homecareinquiry

One local authority has taken steps to

embed a human rights based approach in

all these areas, using the Department of

Health’s ‘Dignity in Care’ model we

describe in Part 2.

Halton Borough Council employs a

Dignity in Care Co-ordinator, whose role is

to integrate a ‘whole system’ human rights

based approach across all health and

social care services including home care.

All partner organisations and care

providers work to embed dignity via a

Dignity Champions’ Network, having

signed up to Halton’s Dignity Charter and

appointed Dignity Champions. Providers

report back regularly on the practical steps

they are taking to promote the human

rights of people using their services.

A senior local authority manager

highlighted the benefit of having a

dedicated co-ordinator:

‘It (dignity) becomes the norm really for

[us] ... It becomes the norm to recognise

that within contracts and ... in the

provision of services as well.’

Local authorities have positive obligations

to carry out their functions in a way that

promotes and protects the rights in the

ECHR. This applies to every aspect of their

day-to-day work. However, our findings

reveal that local authorities may not have

a comprehensive grasp of their human

rights obligations as they relate to home

care and as a result may incorporate

human rights into their commissioning in

a superficial way.

There are major opportunities for local

authorities to promote and protect older

people’s human rights in:

the way they commission home care

the way they procure and monitor home

care contracts.

They also have a role, more directly with

older people, in:

assessing older people’s needs

reviewing older people’s ongoing needs

and the care they are receiving

providing information to people in need

of home care (this is covered in Part

3d).

Part 3c: How well do local

authorities promote and

protect older people’s

human rights?

Inquiry into older people and human rights in home care

Commissioning home

care

Local authorities have the power to

provide home care themselves, instead

of procuring services from external

providers. However, 84 per cent of

publicly funded home care is now

provided by private and voluntary

organisations commissioned by local

authorities.

Commissioning can play a vital role in

protecting and promoting human rights.

“Because of the nature of home care

provision, regulation and inspection –

while crucial – may not be as effective at

monitoring compliance in home care

services as it can be for care homes.

Therefore commissioning must play the

central role in ensuring home care services

meet needs and promote and protect

human rights.”

Alzheimer’s Society

Our evidence has highlighted that, while

there is evidence of poor commissioning

practice, there are also plenty of pointers

to how commissioning home care

can support and improve providers’

performance in protecting and promoting

human rights and increase the quality

of care.

Local authorities can influence the

protection of human rights in care

services:

in their strategic planning

when specifying the services that must

be provided

in the way they procure and manage

the contracts with care provider

organisations.

Most local authorities who responded to

our national survey reported that they take

account of human rights in both their

commissioning plans and procurement

processes. However, it was apparent from

our interviews and detailed analysis of

commissioning and procurement

documentation that local authorities have

a patchy understanding of human rights

and their own obligations in protecting and

promoting these rights for older people.

We see this as a missed opportunity. At a

strategic level, commissioners are in a

position to identify the needs of the local

population and plan how these should be

met, in a way that complies with their

equality and human rights obligations. We

would like to see this happening in a more

systematic way so that local authorities are

doing as much as possible to prevent the

human rights of older people receiving or

requiring home care from being put at risk.

Including human rights in

contracts and service

specifications

Commissioning bodies have considerable

scope to influence the way care services are

organised and delivered – they can specify

particular practice and outcomes aimed at

protecting and promoting human rights.

We found that, in practice, human rights

are often only superficially addressed in

commissioning documents:

They usually just list the Human Rights

Act or related legislation in the standard

terms – often in legal appendices,

without any substantive requirements

www.equalityhumanrights.com/homecareinquiry

setting out how providers should be

addressing human rights.

They tend to refer to principles of

dignity, respect and independence

without mentioning human rights or

linking them to their duties under the

HRA. We have termed this a ‘human

rights lite’ approach – one that adopts

aspects of human rights language

without fully understanding the

underlying legislation or taking on

board its obligations. As the Equality

and Human Right’s Commission’s

Human Rights Inquiry found, ‘the

propensity of public authorities to use

these general terms, without linking

them to their legal underpinning in the

Human Rights Act … dilute[s] the

potential impact of the Human Rights

Act, and make[s] the obligations on

public authorities appear optional and

aspirational’.

Some service specifications include a

requirement for the provider to ‘act as

though they were carrying out a public

function’ and/or ‘as though they were a

public body under the HRA’. This is a

welcome approach, and could allow the

local authority to sue the provider for

any breach of human rights obligations.

However, these clauses alone would not

provide any right of redress for service

users against care providers who breach

their human rights. For this to be

possible, there would need to be an

express contract term giving the service

user ‘third party’ rights to sue the care

provider for any human rights breach.

Even where human rights are referred

to in contracts, this is often not

consistently translated into practice, or

meaningfully incorporated into service

delivery and contract monitoring.

Significant limitations and problems

follow from this, as one local authority

acknowledged:

“On a formal contracting basis most

documents will refer to the human rights

of people receiving services. However,

simply including such statements within

the contract is not the same as promoting

people’s rights. What is more crucial is

that specifications outlining the service

make a reality of the issues of human

rights, and monitoring tools such as

quality assurance frameworks are

designed to look at how services are

provided, but even more crucially to

ensure that providers are aware of how

their services will be monitored and the

areas that commissioners feel are crucial.

The other issue with inclusion in contracts

is that the documents will not necessarily

prioritise areas that providers are expected

to comply with. Therefore issues such as

human rights will sit along[side] more

mundane areas such as payment terms

and conditions and will not always be

viewed with importance.”

Local authority response to survey

Other matters of concern in

commissioning documents included:

Lack of consistency on equality

obligations – while nearly all the service

specifications referred to race, gender

or disability equality, there were fewer

references to other protected

characteristics

such as age, religion

and belief, or transgender.

Commissioning too often ignores or

gives very low priority to issues such as

the role of social care in tackling social

isolation and promoting autonomy – all

of which have a bearing on mitigating

risks to older people’s human rights.

We were repeatedly told by

interviewees from local authorities and

voluntary sector organisations that this

is less likely to be the case with home

care for children and younger adults.

There were a few examples of local

authorities actively seeking to combat

isolation for older people – for example,

when commissioning domiciliary care one

local authority particularly emphasises to

prospective providers the importance of,

and need to deliver on, social interaction

and community participation. This

includes an expectation that providers will

link older people into local community

groups and activities and employ

community development workers.

Procurement and

contract monitoring

Throughout the procurement and contract

management processes, local authorities

can actively manage and monitor how well

the home care they have commissioned is

protecting human rights in practice, and

take action if any risks to human rights

become apparent. This is an important

element of their positive obligations to

promote and protect human rights. As was

the case with commissioning, we found

that opportunities to protect human rights

were being missed in the ways local

authorities procure and monitor home

care contracts.

Procurement

We recognise the pressure on local

authorities to reduce costs in the current

financial climate. However, the key issue

is to get the balance right between cost

and quality to make sure the human

rights of older people are not

compromised.

We identified several trends in

procurement that are of particular

concern to commissioners and providers

as well as organisations representing the

interests of older people.

The bias towards cost criteria

in awarding contracts

According to the United Kingdom

Homecare Association (UKHCA), local

authority tender procedures for home

care services used to operate a

widespread convention under which

providers’ bids were assessed on the

basis of 70-80 per cent of total marks for

quality/compliance issues and 20-30 per

cent for price. However we came across

examples of local authorities basing their

procurement decisions on 70 per cent of

total marks for cost and 30 per cent for

quality, with one as low as 80 per cent

cost and 20 per cent quality. The

UKHCA’s recent experience is also that,

in some local authorities, the marking

schedule has been reversed to give price

considerably more weight.

Conversely some local authority officers

were clear that their authority’s focus

was consistently on quality.

Inquiry into older people and human rights in home care

“We’ve heard about £8 or £9 per hour

contracts being let and I just wonder what

quality you can get for that? … We would

certainly not consider going to £8.50 …

But I would just like to understand how

you could actually deliver a quality home

care service on £8.50 ... I don’t know.

Possibly local authorities who have taken

that bold move would refer to the national

providers, that’s how you get your cheaper

price. We couldn’t deliver a quality

assured service in [our area] for £8.50 ...

without major risks.”

Local authority commissioning

manager

One private sector agency described

being contacted by a local authority who

discussed a contract with an hourly rate

of between £9.00 and £9.50 with a care

provider. The provider told the local

authority they could not deliver home

care for this price.

“We just are not prepared to reduce what

we feel are our essential quality standards

to be cheaper.”

Manager, small voluntary sector

care provider, North of England

Local authority officers gave examples of

home care providers who had accepted

contracts at such a low rate that they

were subsequently unable to deliver the

contract – in some cases where firms had

gone bankrupt. In these instances the local

authorities had to invest time and effort

finding replacement care for people at

short notice.

www.equalityhumanrights.com/homecareinquiry

“As a council, quality is a big thing, and

that goes all the way to the top. I know

other local authorities ... budgets seems to

define what they want. That’s not what

commissioning social care’s about. It’s

very different to buying paper and pens.

Very, very different ... We focus more on

quality assurance ... I wouldn’t go to the

shop and buy a cheap loaf of bread that’s

gonna go out of date the next day, ‘cause

it’s rubbish. It’s rubbish quality and I

wouldn’t expect the same for the people of

[this area]. So why do they [other local

authorities] buy something that’s not fit

for purpose? I don’t get that.”

Local authority commissioning

manager

Commissioning home care at

very low hourly rates

In our survey of local authorities, 33 per

cent had negotiated contracts on lower

payment terms in the previous 12 months

and a further 19 per cent expected to do so

in the following 12 months.

A number of home care providers told us

they would not be able to provide services

to an acceptable or safe standard at the

low rates paid by some local authorities.

Only around a third of home care

providers who took part in our survey

thought that the rates currently paid by

local authorities support them to promote

and protect the human rights of older

people.

However the price of services is not the

only indicator of human rights

compliance:

“It is recognised that the current financial

climate presents real challenges to local

authorities in commissioning services but

it is noteworthy that the standards of care

are not always linked to the price of

services. There are many providers of good

quality care which promote the human

rights of older people whose costs are

lower than average.”

The Association of Directors of

Adult Social Services

The practice of using reverse

e-auctions

Reverse e-auctions are where providers

place online bids for contracts in real time,

competing to offer the lowest price that

meets all of the service specifications.

Proponents claim that this is a dynamic,

competitive process that helps to achieve

rapid price cuts, not normally possible

using more conventional bidding

processes. However several interviewees

highlighted concerns that the process

promotes a focus on reducing costs at the

expense of quality.

“There is absolutely no way we would

enter into an e-procurement auction and

see the prices hammered down in relation

to home care. It’s too risky. That would

undermine our whole approach. So no,

we didn’t do that.”

Local authority commissioning

manager

Inquiry into older people and human rights in home care

The need for supportive

leadership

Commissioning officers in some local

authorities whose leadership, both senior

management and elected members,

maintained a consistent focus on quality

told us that they were able to make

commissioning decisions without the

pressure to contract with very low-cost

providers, which they felt would damage

the quality of their services.

Clear and explicit leadership was a notable

common feature in all of the good practice

local authorities, starting with councillors

and running through senior management.

The interviewees in these authorities were

clear that the messages about the central

importance of quality and dignity which

guided their decision-making came from

the top.

Elected members in some local authorities

saw the potential to, and expressed

enthusiasm for, integrating a human rights

approach into their scrutiny function.

However only around a quarter of local

authorities train all elected members with

lead responsibility for social care about

their important role in protecting and

promoting human rights.

A partnership approach to

commissioning care services

The local authorities with clear leadership

around quality also adopted a partnership

approach to working with independent

sector care providers in their local area.

Local authority officers described the steps

they had taken to engage positively and build

a shared understanding of the importance

of a human rights based approach and

www.equalityhumanrights.com/homecareinquiry

how this could be incorporated by

providers into service delivery.

This meant that when commissioning

managers set strict targets on quality

issues which affect older people’s human

rights, such as late care visits and turnover

of care workers, the providers were clear

about why this was done, and did not see

the targets as punitive or irrational.

“We’ve done groundwork with providers

and we’ve got a positive relationship …

We’ve built an understanding of what

dignity means … why it’s important that

somebody receives the call [care visit]

within the time frame. Why it’s important

that we have a limited number of carers.

So it’s about that work rather than the

providers feeling its penalties.”

Local authority manager

A number of the local authorities also

offered free or subsidised training to

providers to support this work. Some

smaller providers see this as important,

as they do not have the same in-house

training support as larger providers,

and quality training can be expensive.

Consulting providers

These local authorities also asked home

care providers for feedback and invited

them to suggest innovations. Providers

appreciated being consulted and having

their responses listened to. They felt that

this approach helped to promote high

quality services by drawing on their

knowledge built up through experience of

the practicalities of delivering home care

on a day to day basis and frequent direct

contact with older people.

Home care providers contrasted this

practice with the top-down, ‘command

and control’ approach adopted by other

local authorities, where changes were

imposed on providers without

consultation.

“We have steering groups at [local

authority] where they ask for our feedback

… which I think is good … Rather than just

saying, ‘There you go, go and do that’, they

ask us first, ‘Do you think this will work?

What are the best ways to do it?’”

Small private sector provider, North

of England

The role of the Association of

Directors of Adult Social

Services

The Association of Directors of Adult

Social Services (ADASS) has a significant

role in promoting human rights standards

through commissioning. It represents

Directors of Adult Social Services in local

authorities in England with statutory

responsibilities for the commissioning

and provision of social care.

As individual members, ADASS members

have statutory responsibilities to promote

social inclusion and wellbeing, to lead on

adult safeguarding, and have leadership

responsibilities in local authorities to

promote good standards in home care.

The effects on the service for

older people

Particular concerns were raised about cost

reductions leading to shorter time slots for

care visits, and the impact this can have on

the human rights of older people.

Inquiry into older people and human rights in home care

Local authority interviewees also raised

concerns about the risks to the quality

and safety of care and warned about the

dangers of cutting costs too far, or too

quickly, without fully assessing the risks

involved.

“If the price of your service is so low then

you will have to start to strip out the time

that people spend with individuals, or the

time that the organisation spends in

developing the staff. That’s a major risk.”

Local authority commissioning

manager

Organisations giving evidence to the

inquiry considered that squeezing hourly

rates or placing too much emphasis on

cost rather than quality increased the

risks of:

rushed visits

in extreme cases, ‘call cramming’ where

providers over-book home care visits

on a care worker’s rota making it

impossible for them to spend the

allotted time on each visit

not paying workers for travel time

reduced pay and conditions for care

workers leading to increased staff

turnover

greater difficulty recruiting good

quality care workers in some areas

reduced scope for training, especially

for smaller providers

less supervision of care staff or

opportunities for group meetings.

Given the findings of our inquiry that the

risks listed above are all factors impacting

on the protection of human rights, we

consider that human rights are more likely

to be protected if commissioning is based on

the costs of care with sufficient resources

for support, training and travel time.

The effects on the care market

Until recently there was polarisation

within the care sector between those

providers who largely provided local

authority commissioned home care and

those who focussed on privately funded

care. More recently the evidence indicates

that smaller home care providers are being

consolidated into larger ones at a steady

rate. Medium to larger scale home care

providers have been more successful than

smaller providers in gaining local authority

contracts, while some smaller providers

have chosen to transfer their business

from local authorities to private care.

It was widely recognised in written

evidence that local authorities, as the

largest local purchasers of home care,

were in a powerful position, particularly

in economically deprived areas, where

private purchase of home care is limited.

We were told that care markets had been

adversely affected where local authorities

had appointed a few large providers

at very low rates. This led to smaller

providers, perceived to be of high quality,

disappearing from the local area.

Doubts were raised about the long term

sustainability of this approach.

“I think where some local authorities are

now, around the pressure financially

to drive down the cost ... The risk is a

collapse of the market ... You go for that

lower price, the market collapses but in

collapsing you place people at risk.”

Local authority commissioning

officer

www.equalityhumanrights.com/homecareinquiry

and longer term impacts of commissioning

and procurement decisions both on older

people and the local care market was

fundamental to commissioning services

that were both high quality and sustainable.

Contract monitoring

Again, we found a range of practice –

from process-based (checking outputs

and processes) to a more proactive,

person-centred approach.

Interviewees from local authorities and

voluntary sector organisations seeking to

adopt good practice felt that including

human rights principles and quality of

outcomes in contract monitoring and

management (rather than just checking

outputs and processes) was the way to

make sure providers prioritised and

delivered on these areas.

Good practice that we were told about

included:

Quality monitoring using face-to-face

interviews with service users,

commissioned from a local voluntary

sector organisation that specialises in

working with older people – this

uncovered issues that would not have

been raised in paper-based

questionnaires.

Training older people from the local

community as ‘citizen assessors’ to talk

to older people receiving home care in

their own homes about their

experiences, as a key source of

intelligence to inform their work.

A proactive, hands-on approach to

contract monitoring that places older

people’s views and experiences at the

heart of assessing quality of care:

A number of interviewees from local

authorities viewed it as important to

maintain a balance within the local care

market by type and size of providers, given

the distinctive strengths of different sized

organisations.

“The approach we looked to develop was

very much about the local market. If you

were to look at our profile of providers,

we have local private businesses that are

small and have been established for a

long time, that have a local identity. We

have voluntary and community sector

organisations. So there’s a real sense of a

mix and that mixed approach is something

that we’ve consciously developed.”

Local authority commissioning

manager

“It balances it quite well really, because

when the smaller ones [providers] can’t

pick up packages, the larger one is able to

do that.”

Local authority contracts manager

One local authority described steps it had

taken to support the development of local

services that were culturally sensitive to the

needs of older people from ethnic minority

groups, which they had identified as a gap

in the local care market. The uptake of

direct payments from ethnic minority

communities has increased as a result.

An issue that was repeatedly raised in

interviews with local authority staff was

the importance of having commissioning

and procurement led by officers who have

a detailed knowledge of home care and the

local care market. Interviewees believed

that a nuanced understanding of the short

Inquiry into older people and human rights in home care

“I don’t want the officers spending time

sitting there reading policies and

procedures, I want them to get out, observe

what’s really happening in the services ...

we’ve made what we call the values, the

things that matter to people, first in the

[monitoring] document, because that’s

what we think is actually more important.”

Local authority commissioning

manager

The key value of a person-centred

approach to contract monitoring is that it

is much more likely to help protect older

people’s human rights than a more

process-based approach. It also means

that any problems that may place human

rights at risk are likely to be picked up

early. The prioritisation of obtaining the

direct experiences of older people is also

relevant for the formal regulation of home

care by the CQC (see Part 4).

Assessing and reviewing

older people’s needs

As well as commissioning local authorities

also have a statutory role to assess

individuals and review their home care

needs. Our inquiry considered whether

human rights were protected and

promoted within these processes.

‘Screening out’ people from

services?

Local authorities have a legal duty to

carry out an assessment for anyone who

appears to need community care services.

The first point of contact to begin the

process of arranging home care may be a

local authority telephone contact line.

Concerns were raised that this can mean

people in real need being turned away, with

the result that they only receive support

when their needs reach a crisis point.

Telephone contact lines also create barriers

for older people with cognitive or hearing

impairments and, for this reason, local

authorities could be failing in their legal

duty to make reasonable adjustments if this

is the only route to getting home care.

A few interviewees from voluntary sector

organisations highlighted what they saw

as a failure by the local authority to carry

out full assessments. It was alleged that

some local authorities were using their

telephone contact lines as a form of

screening. The director of a voluntary

sector organisation that supports older

people described how older people would

typically call the local authority saying

they ‘needed a bit of help around the

house’. However, instead of exploring the

older person’s needs in more depth, the

staff on the telephone lines would take the

request at face value and simply pass on

details of a local voluntary organisation

that could provide light gardening and

housework. The interviewee saw this as a

way for a local authority, struggling with

tight resources, to avoid their statutory

obligations and reduce demand for home

care services.

Age UK expressed concerns that where

local authorities have central telephone

access points for all their services, this

presents a significant obstacle to some

older people getting a full assessment.

Telephone screening interviews are more

likely to overlook pertinent points about

the difficulties the older person is

experiencing, so they are not given a

www.equalityhumanrights.com/homecareinquiry

formal assessment. Given the reported

tendency of older people to understate

their needs and be reticent about

disclosing the need for personal care or

difficulty coping over the phone to a

stranger, the level of support at home they

actually need could go unrecognised.

Apart from undermining the promotion

and protection of people’s human rights,

screening practices of this sort could

amount to an unlawful refusal by the local

authority to carry out its statutory duty to

assess a person’s needs. The Penfold case

established that there is a low threshold

for local authorities to undertake

assessments; for example, they should

provide them for a person needing

services that the authority does not

currently provide, or where the person

would have to meet the full costs of the

care they need.

How assessments are carried

out

In some assessments, staff had taken their

time and shown skill and sensitivity in

finding out about the older people’s needs

and preferences.

However a few older people were unhappy

with their assessments. One woman

witnessed a heated discussion between

her daughter and the assessor, which she

had found humiliating, about whether

overnight care could be provided to help

her to the toilet. The assessor said that

incontinence pads were the only viable

option, although she was not incontinent.

“[Daughter] That’s when I terminated the

interview and walked out ... I wanted to

hit her ... no, I wasn’t happy with that

comment. You’re taking away their

dignity.”

Woman, 75, living alone, local

authority funded home care

Concerns were raised by both local

authority officers and voluntary sector

organisations supporting older people

about the practice of conducting full

assessments and reviews by telephone.

Should an assessment by telephone fail to

elicit all the relevant information, a local

authority would be in danger of failing to

identify or meet the needs of the service

user – leading to potential human rights

risks. Social workers experienced in

conducting assessments told us that there

were many important non-verbal pieces of

information – such as the state of clothing,

or being underweight – that could be picked

up from a face-to-face visit, which could

indicate how well an individual might be

coping and what support they might need.

They also stated that, in their experience,

older people tended to understate the

extent of their needs and were often

reluctant to admit that they might need

support, so this sensitive information

needed to be teased out in a setting which

allowed them to communicate openly.

Other interviewees mentioned the

introduction of computer-based self-

assessment systems which are commonly

used for personalised support, including

direct payments. These were viewed by

some interviewees as inaccessible to

many older people and, as with telephone

interviews, would not pick up when

older people understated their needs.

Inquiry into older people and human rights in home care

we hadn’t reviewed you for three years

but actually now we looked at you again

and you’re not eligible.’ It’s incredibly

bad practice really. I’m sure it happens

everywhere.”

Local authority manager

In other places it was claimed that reviews

were currently taking place more

frequently than before, with the

perception that the primary purpose was

to look for opportunities to cut individuals’

care packages. One local authority

contracts manager told us that they were

currently urgently reviewing all service

users who had two workers at a time to

support them, with a view to reducing the

number of these ‘double up’ calls.

Our conclusions

Our findings indicate that – for a variety

of reasons – commissioning bodies are

not making the most effective use of the

scope that they have for protecting and

promoting human rights. As a result,

there are concerns that they are not fully

meeting their own obligations as public

authorities under the HRA. This seems to

stem primarily from a lack of awareness

about the full extent of their HRA duties,

including complying with positive

obligations to promote and protect

human rights.

We found that practice on commissioning

varied a great deal. Some local authorities

adopted a quality-driven approach,

incorporating human rights principles at

all stages of the commissioning process,

while others appeared to focus on price

above all other considerations – an

approach which is likely to reduce the

quality of services. However, very few are

A small number of interviewees raised the

question as to whether these methods

were being used as a way of rationing

scarce resources through under-assessing

needs.

Carers’ assessments

Carers also have a statutory right to have

their needs assessed,

and local

authorities have a duty to explain this.

However, we were told about a number of

situations where carers’ assessments had

not taken place. In one example, we heard

about an older woman caring for her

husband, who had dementia and

Parkinson’s disease, who was driven to a

point where she threatened suicide due to

feeling overwhelmed with caring

responsibilities and sleep deprivation. It

then transpired that she had not received a

carer’s assessment or any support. It is

likely that the local authority’s neglect of

the carer’s needs would amount to a

breach of the right to respect for private

life under Article 8 of the ECHR, as well as

being a breach of their statutory duty to

conduct the assessment.

Reviews

Again, we heard of mixed practice with

regard to reviews of service users’ needs.

Local authorities have a general duty to

conduct reviews, which is backed by

government guidance. However, in some

areas we were told about long delays. One

local authority manager highlighted the

impact this had on service users.

“When people … get a review and suddenly

are told, if you like, that their services have

changed or they will change because

they’re not eligible any more or, ‘Sorry

www.equalityhumanrights.com/homecareinquiry

consistently adopting commissioning

principles that are firmly underpinned by

an understanding of human rights.

A small number of local authorities have

attempted to incorporate human rights

into their practices in a meaningful way

throughout their commissioning,

procurement and contract management –

human rights was sometimes one of

the specific factors considered when

assessing providers’ performance.

Halton Borough Council uses the ‘Dignity

Challenge’ approach pioneered by the

Department of Health, which we described

earlier.

“In our commissioning and contracting,

we include the 10-point Dignity Challenge

in our service specifications for block

contracts, within principles and standards,

and within the outcomes required for spot

contracts. Dignity and human rights are

underlying themes – ‘golden threads’ in

our Quality Assurance Framework [QAF].

This means that providers will be assessed

according to the degree to which they meet

these standards, being mainstreamed into

the QAF rather than as a tick list. In the

procurement of services prospective

providers have to evidence how they meet

these underlying themes prior to the

award of a contract and this becomes part

of the contract monitoring process. We

also publicise the annual Dignity Day to

providers to highlight its importance and

to give providers the opportunity to

showcase good practice.”

Halton Borough Council written

evidence

Some local authorities have adopted the

Dignity Challenge as a framework for

commissioning older people’s services –

with a clear understanding that this

approach is underpinned by legal

obligations under the HRA. This is a

welcome development, one which we

hope other local authorities will follow.

www.equalityhumanrights.com/homecareinquiry

As for anyone else, it is important for older

people to stay in control of their lives and

what happens to them, and to be able to

have a say in the care they receive. As

mentioned earlier, the right to respect for

private and family life under Article 8 of

the ECHR includes the right to respect for

personal autonomy. This is also a central

principle of the UN Convention on the

Rights of Persons with Disabilities (CRPD).

Local authorities can help to fulfil these

human rights requirements by offering

older people a personalised approach to

home care, giving them as much choice

and control as possible over the nature

and timing of services. Providing

personalised services is a central element

of a human rights approach to home care.

From our interviews with older people, it

was clear that few of them – apart from

some who had made private care

arrangements – had taken much active

part in arranging their care. For most of

those we spoke to, their care was arranged

with the help of their local authority. The

majority of these felt they had had little

say, and some were surprised to hear they

were entitled to any choice.

Even though many local authorities

specify that service users should have

choice and control over their care, most

older people said they had little or no

choice over the tasks that were carried out

or the timing of care visits. Many felt that

home care was something that was being

‘done to them’, rather than a service that

they could engage with and arrange to suit

their lives and needs.

Older people’s

understanding of their

entitlements

We found that most of the older people

using home care had little or no

understanding of how the home care

process works or what they were entitled

to, what they had a right to expect, or the

different options for managing their care.

Some found the system too complex and

difficult to understand. We heard about

one older person who would have become

homeless had it not been for his family

intervening.

“The biggest problem with home care is

the complexity of the different services.

My father-in-law was suffering as he did

not understand the system; he was given

conflicting advice about carers, and he was

left to cope with being made homeless.

My husband got involved, insisted on

talking to managers, got advice from the

CAB, discovered who was responsible and

what he was entitled to, and suddenly the

local authority could not do enough for my

father-in-law.”

Daughter-in-law of an older man

receiving home care

Part 3d: Choice and

control over care

Inquiry into older people and human rights in home care

Even family members supporting older

people to get home care found the systems

too bureaucratic.

Information and advice

Much of the evidence from voluntary

sector organisations flagged up the lack

of understandable information for older

people on either home care or their

human rights. Even when the information

is available, it is often not easy to find, or

easy to access. For instance, it is often

online, although nearly 6 million people

aged 65 and over have never used the

internet: 42 per cent of those aged 65-74

and 76 per cent of people aged 75 and

over.

We were also told of information

that is inconsistent, out of date or

incorrect.

For people funding their own care, good

information on how to obtain home care

and how to protect their human rights is

even more vital. Apart from a right to an

assessment of needs, the only thing self-

funders are entitled to from their local

authority is this information. In practice

they may get no more than a list of contact

details for local care providers without any

indication of the quality of the providers

or their areas of specialism.

Older people’s

involvement in

assessing their needs

A human rights approach to assessment

would respect older people’s autonomy by

genuinely involving them in defining their

own home care needs. Most older people

we interviewed had had one or more

formal assessments, but they generally

had no detailed recollection or

understanding of the process. Many older

people found that although home care

workers and payment arrangements were

put in place, they had no clear sense of

having had any input into – let alone

control of – the process.

Anyone can ask for an assessment of their

care needs, for example if they are finding

it increasingly difficult to manage their

basic day-to-day needs. However, there

was little evidence that older people we

interviewed were aware of their right to

an assessment or had asked for one.

Many were first assessed for home care

at a time of crisis – usually encouraged

by family, or health or social care

professionals. This may partly explain

why older people often didn’t seem to

feel involved with the arrangements for

their care, or feel that that they had

control over them.

www.equalityhumanrights.com/homecareinquiry

Choosing a provider

Many older people we spoke to were

unsure how their provider had been

chosen, or assumed there was no choice.

In some cases, individuals who had

expressed a preference felt that they

were not listened to.

“[The agency] was provided by social

services. I did not have a choice of

provider, and though when I last came

out of hospital I did request that the

provider who I had had three months

prior continue to be used, this did not

happen and I had new care staff … I felt

no one paid any attention to my request.

It is doubtful it was even considered.”

Woman, over 75, local authority

funded, South of England

Some older people had had their provider

changed against their preference, causing

upset and disruption. For example, one

older man had recently been told by the

local authority that his care provider had

been replaced. Although he was much less

happy with the services of the new agency,

he felt he had little choice but to accept it,

even though he was paying towards the

cost of care from his own funds.

There was some good practice. In a few of

the interviews it emerged that the local

authority had replaced an agency because

the interviewee was unhappy with the

service they were getting. However, there

was little evidence that the older people

concerned had been consulted or involved

in the change process. They simply

accepted the next agency chosen by the

local authority.

Some older people and their families,

particularly those paying for their own

care, told us about feeling overwhelmed

when faced – often at a difficult time –

with choosing a home care provider. In

some cases they were only given a long list

of care providers, and had no other source

of information. In written evidence, some

explained the difficulty of differentiating

between organisations without any

indication of quality. A provider complying

with CQC standards demonstrates that

they meet the minimum standards rather

than indicating levels of quality.

The CQC used to award ‘star ratings’ as a

guide to the quality of each provider, but it

no longer follows this system. Some older

people told us that they had found this

very helpful in selecting care providers.

According to ADASS, the star system also

provided information that enabled local

authorities to require improvements from

care providers.

Offering greater choice

and control through

personalisation

If properly implemented, personalisation

has the potential to enhance older people’s

choice and control over their care, and so

promote their human rights – in particular

their right to respect for personal

autonomy.

In the past, a service-led approach to social

care has meant that individuals have been

expected to fit in with the services

provided. As the Social Care Institute for

Excellence has highlighted, personalisation

challenges those commissioning and

delivering care to take a radically different

approach.

Inquiry into older people and human rights in home care

Personalisation means thinking about care

and support services in an entirely

different way. This means starting

with the person as an individual with

strengths, preferences and aspirations,

and putting them at the centre of the

process of identifying their needs and

making choices about how and when they

are supported to live their lives.

Personalised care is typically delivered

through personal budgets, which should

allow people to control the funding

available for their care and make choices

about the support and services that they

need. People can choose how they receive

their personal budget. The most common

ways to receive a personal budget are as a

direct (cash) payment where an individual

takes on management and budgetary

responsibilities or as an account managed

by the local authority (‘managed account’

or ‘virtual budget’) but where the money is

spent as you choose. People can also

benefit from personal budgets through

third party trusts or other third party

services. Local authorities usually decide

how much money to put in a personal

budget by using a formula called a

Resource Allocation System (RAS) which

allocates points according to how care

needs assessments questions have been

answered.

The benefits of personal budgets and

direct payments are widely recognised in

terms of the opportunity to obtain an

individually tailored blend of services

which can give greater freedom of choice

and autonomy. However, it is also

accepted that the benefits may be greater

for some people and for some sectors of

the population than for others.

Older people’s experiences of

personal budgets

Consistent with the national picture, only

a handful of older people and their families

who provided evidence to the inquiry

reported receiving personal budgets.

Most were positive about their experience,

and preferred the increase in choice and

control. They usually contrasted their

current satisfactory situation to previous

arrangements where poor quality and, in

some cases, unsafe care was provided.

“When I was using [the] agency I did

not have my decisions taken into

consideration for the most part. I was

expected to conform to behaviour they

found acceptable.

Now on an individual budget I make all

the decisions. I am 100 per cent happy

with my support workers.”

Woman aged over 65, North of

England, local authority funded care

“The care agency chosen [by social

services] did not provide an adequate

service. They failed on many occasions

to give the correct medication, which

severely affected my father’s health.

We transferred to self-directed support

and now employ personal staff. My

father now gets an excellent service

which supports the care that we can

give as a family. They are a lifeline.”

Daughter of man aged over 75, part-

funded local authority care, North

West

www.equalityhumanrights.com/homecareinquiry

Factors preventing older

people taking up direct

payments

The Commission has found that some

older people do not wish to use personal

budgets and indeed, the take-up is lower for

older people than for most other groups.

A number of older people told us that they

were not prepared to change to a personal

budget by way of direct payments, even

some who were unhappy with the care

they were receiving. They voiced practical

concerns about being responsible for a

direct payment, concerns that were

supported by many providers, local

authorities and voluntary sector

organisations:

concerns about responsibilities

lack of support to manage

responsibilities

lack of information to make an

informed choice

increased risk of abuse or breaches of

human rights.

Concerns about the responsibilities

Some older people and their families, who

did not currently receive direct payments,

were nervous that they might be required

to do so. Their concerns included:

the burden of managing employment

responsibilities

feeling unable to cope with the

demands of organising their own care.

The concerns of older people and their

families were echoed by a range of

organisations and individuals who

submitted evidence. Many interviewees

from local authorities and voluntary sector

organisations doubted whether older

people were fully aware of the range of

responsibilities that came with being a

micro-employer. This would include

organising back-up for annual leave,

sickness or maternity cover. Others

pointed out how difficult some older

people were likely to find raising

complaints or areas of dissatisfaction

with an individual who was not providing

a satisfactory service, given the significant

difficulties that older people experience

in raising concerns with organisations

providing care.

“The idea that you might just employ an

individual yourself … can work very well

for some people, but can also not be what

people are looking for, partly because

they don’t want the risks and the legal

responsibilities of that but also because

not everybody wants an employer/

employee relationship with the person

that supports them.”

Director, national voluntary sector

organisation

Local authority interviewees, in particular,

stressed the important role that

supportive family members play in

helping their older relatives manage the

bureaucracy of employing a personal

assistant.

The difficulties for some of taking on

managing their own care were spelled

out by one older person responding to

the call for evidence.

Inquiry into older people and human rights in home care

“Please realise that personalisation will

not help me at ALL as I am completely

unable to make phone calls and look up

companies who provide care to organise

it myself, and certainly could not conceive

of trying to employ anyone myself, and

anyway they would need sick cover etc.

How would I organise that?

I just wish that social services had enough

funding to provide agencies with enough

money to employ the right number of staff

at a good wage to do the job properly.”

Older woman, 75, local authority

funded care

Although this person uses the umbrella

term ‘personalisation’ it is likely she is

referring to direct payments given her

fears about being able to use the phone

and organise care at short notice.

Lack of support to manage

responsibilities

If they receive direct payments, people

have to comply with certain accounting

arrangements and paperwork

requirements, which some older people

(particularly those with limited capacity)

cannot manage without support such as a

brokerage or advocacy scheme. A number

of older people preferred to be on a

managed account, where the local

authority manages their personal budget,

because they felt unable to keep all the

necessary records.

Interviewees from voluntary sector

organisations pointed out that, as in most

areas the eligibility threshold for receiving

direct payments is to have critical or

substantial care needs, these older people

would be very likely to need targeted

support to manage their budgets effectively

– particularly as many came into the home

care system at a time of crisis.

Some submissions from organisations

outlined examples of effective support and

advocacy by organisations with an in-depth

understanding of the issues affecting older

people. For example, a local Age UK

organisation described their ‘support

broker’ scheme for self-funders.

“The support brokers visit people and

discuss what they want and help develop a

personal support plan, then assist with

putting the arrangements in place as

instructed by the client. Each support

broker works in a limited geographical area

and so becomes very familiar with what is

available in their local patch. Schemes like

this support people to have an informed

choice of what services they receive and

control over the care that they receive.

They get as much support as they need

until they have the confidence to take on

the management of their care themselves.

They also have a known point of contact

should they need more help in the future.

Age Concern Wigan Borough support

people in receipt of direct payments and

offer help in recruitment and employment

of staff. The fact that this scheme is

independent from the local authority and is

run by a well respected local organisation

gives people confidence that they will get

the help and support they need when taking

on the complex responsibility of managing

their own care.”

Age UK, North West region

Although a brokerage service is an option

which some older people said was attractive

to them, concerns were also raised about

www.equalityhumanrights.com/homecareinquiry

the cost of this being taken out of the

money allocated for care, reducing the

amount of care they would be able to

afford.

Some voluntary sector organisations

supporting older people highlighted the

need for ongoing support with managing

direct payments, rather than just at the

initial set-up phase.

“They [local authority] might set

everything up for them and say, ‘Look it’s

a really simple system. We’ve got this, it’s

great.’ And then they go away and leave

them to get on with it. But you’re dealing

with elderly carers that are stressed; that

are in a new situation where they’re having

to do all this paperwork. A crisis happens,

and they get stressed … and the paperwork

gets backed up, the care doesn’t get paid

for. It’s not straightforward at all.”

Support worker, voluntary sector

organisation supporting people with

dementia

Voluntary sector organisations also raised

concerns that some of the available

support has a ‘one size fits all’ approach.

They felt that some organisations

providing this support and advocacy did

not have enough knowledge of specific

issues affecting older people to offer

appropriate support – for instance,

understanding how ageist assumptions

can limit people’s choices. We came across

one organisation commissioned to provide

brokerage whose support appeared to be

influenced by stereotypical assumptions

about older people preferring to ‘stay at

home and put their feet up’ rather than be

involved in their community. This is of

concern, given our findings on the extent

and impact of isolation for older people.

Our findings highlight that older people

will only be in a position to benefit fully

from options available through personal

budgets where effective and ongoing

support is available through such means

as advocacy and brokerage services – a

point which echoes the Department of

Health’s statement quoted below, and

earlier studies.

It appears that in some

areas this is available but in others it is

limited, non-existent or only available for

a fee.

Lack of information to make an

informed choice

In their evidence to the inquiry, the

Department of Health acknowledged the

importance of appropriate information

and support as crucial to implementing

personal budgets successfully.

“We know that people will need support

if they wish to take on this greater

responsibility. People will have differing

levels of capacity and understanding and

public authorities will have to ensure that

they provide the information and support

that people want and need in order to fulfil

their legal duties under human rights

legislation.”

Department of Health response to

call for evidence

The evidence to the inquiry indicates that

that support and information is not fully

available yet.

A wide range of interviewees from

providers, local authorities and voluntary

sector organisations flagged up a concern

that there appeared to have been a rush to

put older people onto personal budgets –

Inquiry into older people and human rights in home care

either by way of direct payments or

managed accounts – without always

making sure they had the information and

support they needed.

More generally, in the interviews and

focus groups that we conducted with older

people it was notable how little they were

aware of the personalisation agenda.

Questions on the topic often drew a blank.

Lower safeguards against abuse and

other human rights breaches

As we explained in Part 1, local authorities’

positive human rights obligations may

sometimes include a duty to protect

individuals from the actions of others. If

there is clearly a risk of human rights

being breached, local authorities may have

an obligation to provide information

explaining this risk to individuals who are

under threat. There may also be a duty to

monitor situations where breaches of

human rights are likely. Thus, in certain

limited circumstances, local authorities

could be arguably under a positive

obligation to protect the human rights of

people who receive direct payments – for

example, by giving them information so

they know the steps they can take to

safeguard their fundamental rights.

We took evidence from a small number of

older people who had appointed their own

care workers (often a family member)

using a direct payment. They did not tell

us they felt more vulnerable to abuse of

trust or other problems.

However, a wide range of individuals and

organisations, including care providers

and local authorities, voiced concerns that

the personal assistants taken on by older

people are not covered by the regulation

that applies to care workers.

“The drive towards personalisation, whilst

welcome because of greater choice and

control of solutions tailored to the needs

of individuals, also means there is a need

to balance risk, choice and safeguarding

people from abuse, harm and neglect.

This includes consideration of people’s

human rights.”

Local authority survey respondent

Many contrasted the steps that local

authorities take to guard against abuse

with the lack of any similar safeguards for

personal assistants. Some were also

concerned that it would be easy for people

looking to abuse or exploit older people to

spot adverts by older people wanting a

personal assistant. One older man

expressed his frustration about not having

control over how his care worker spent her

time, but said he would not transfer to a

direct payment because he would feel too

vulnerable to being ‘ripped off’.

Like home care workers, personal

assistants are not required to have any

qualification but unlike home care staff,

personal assistants lack the benefit of

support and supervision from an agency.

Although there are some safeguards

available to older people directly engaging

personal assistants – such as police checks

or references – we were told that few older

people actually carry out such checks. This

was partly because they feel it would

appear mistrustful, or sometimes because

they did not know how to go about doing

this. However we are aware that local

authorities can take various steps to

mitigate risks in employing personal

www.equalityhumanrights.com/homecareinquiry

assistants; for example, by commissioning

payroll services for recipients of direct

payments, funding independent advocacy

services and developing registers of

personal assistants or supporting local

organisations to do so.

Local authority targets for

personalisation

The Department of Health set a target for

local authorities to have 30 per cent of

all eligible service users and carers on

personal budgets by April 2011.

Some

interviewees felt this was leading local

authorities to move people onto personal

budgets in a way that does not give them

the benefits of greater control and choice.

In a small number of local authority areas

it was alleged that older people were

‘pressurised’ into accepting personal

budgets, without being presented with a

balanced picture of all of the alternatives

available to them.

In some areas, it was also claimed that

older people had been moved to personal

budgets managed by the local authority

without gaining any choice and control

over their care provision. The local

authority continued to commission the

same care provider to carry out the same

tasks as before at the same times. Some

saw this as contradicting the spirit of

personalisation, aimed more at fulfilling

the local authorities’ targets than putting

older people at the heart of the services.

“We received a phone call from a Council

Care Manager who said, ‘By the way, as of

last Monday this service user is on a direct

payment.’ All that’s happened here is that

the Council has just moved the money

from the Council to the individual but is

still in control. They’re still doing the

commissioning. They’re still telling us

what will happen. The actual reality of

what support that person is getting has

not changed one jot. And I would wager

that the service user has absolutely no

understanding of the change.”

Manager, large private sector

provider

The European Court of Human Rights has

made it clear that protection of human

rights must be ‘practical and effective’,

rather than ‘theoretical and illusory’.

The

approach to personalisation adopted in

the example above suggests that this local

authority may be falling short of its HRA

obligations to respect older people’s

autonomy, protected by Article 8.

Concerns about the level of direct

payments

We were also told that the level of direct

payments from local authorities often does

not allow for the creative, flexible

packages of care that people had been led

to expect from this system of funding. Our

evidence suggests that these packages,

clearly of huge value to service users, are

more readily available for younger

disabled adults. Interviewees, mainly from

voluntary sector organisations, stated that

the funding for older people only covered

essential basic physical care such as

support to get up or eat.

For example, the daughter of one older

man wanted to spend some of the direct

payment on support with assisting her

father to get out and walk his dog so he

Inquiry into older people and human rights in home care

could keep his pet. This was not only very

important to him emotionally, as company

in his home and in terms of exercise, but

also a key way for him to get out and

socialise in his local community, and

would therefore make a fundamental

difference to his quality of life. However

the personal budget was only enough to

cover his essential physical care needs,

such as washing and dressing.

Providers also told us that in their

experience the amounts allocated to older

people in direct payments gave them little

flexibility, even to buy enough care to

cover their essential needs, and forced

them to buy the cheapest possible care.

In some cases we were informed that local

authorities may deduct up to 10 per cent

when a service user transfers from

managed care to direct payments,

reducing even further the amount that

older people have to spend on care.

Personalised service does not

have to mean a personal

budget

When we asked older people what would

improve their current home care service,

most of those who volunteered an opinion

indicated that they would like it to be

more responsive to their needs and

wishes:

covering a range of different tasks

flexibility to respond to changing

situations rather than a rigid list of

tasks to be carried out at specific times,

regardless of anything else going on in

their life, and

care workers who listened to them.

These issues indicate a strong desire

for the theory of personalisation to be

translated into reality in their care –

to have a flexible, responsive service,

shaped around them as an individual

rather than controlled by organisational

convenience. Essentially, this means

an approach to personalisation which

genuinely supports their individual

rights to respect for personal autonomy

and dignity.

Some interviewees felt that older people

were being offered a false dichotomy:

either have services commissioned by

the local authority, or if the person wants

a flexible and creative service shaped

around their own needs have a direct

payment. These interviewees felt that

older people should be offered a truly

personalised service no matter how the

funding was arranged.

One local authority talked to around

2,000 older people in their area, face-to-

face, to find out what they wanted from

home care. This in-depth listening

exercise showed that older people

wanted flexibility and quality in their

services. As a result, the local authority

is reshaping their commissioned home

care services, aiming to make truly

personalised flexible services available

to all older people receiving home care

in their area, regardless of how these

services are paid for.

In our view, the drive towards

personalisation in social care should be

implemented with greater consideration

of the potential for genuinely promoting

older people’s human rights. Support

should be given to older people to make

www.equalityhumanrights.com/homecareinquiry

an informed choice about the type of

funding most suitable for them.

Irrespective of funding arrangements,

models of personalised home care that

adopt a comprehensive human rights

approach should be extended so that

older people’s needs and choices are truly

at the centre of the services they receive.

www.equalityhumanrights.com/homecareinquiry

The inquiry evidence and other studies

point to several interlinked factors which

undermine the human rights of older people

who get or need home care. These are:

the impact of age discrimination

a lack of informed choice about home

care

a lack of investment in care workers

output-driven commissioning, and

the climate of financial constraints.

The lack of an adequate legal and regulatory

framework is another factor which puts at

risk the human rights of older people who

need or receive home care. This issue is

examined in Part 5.

The impact of age

discrimination

We know from our Triennial Review that

discrimination against individuals with

particular characteristics can lead to

treatment that falls short of human rights

standards – such as inadequate dignity and

respect in health and social care services.

Our inquiry evidence illustrates this by

revealing threats to the basic human

rights of older people using home care

services which in some respects link to

discriminatory practice and negative,

ageist attitudes.

Different treatment for

different age groups

Figures indicate that less money is spent

on care packages for individuals over 65

compared with other age groups. Even

after taking into account a wide range of

needs, outcomes and other factors, the

unit cost of the support received by older

people is significantly lower than that

received by younger people. On average, it

is estimated that older people would need

a 25 per cent increase in support for these

age differences to be removed.

Older

people also have, on average, around a 10

per cent lower chance of receiving support

from a social worker than younger people

with the same needs.

An evaluation

report on the Individual Budget pilots

noted discrepancies between the resources

allocated to adults of working age and the

lower level allocated to older people.

Studies have also shown that direct

payments are less likely to be offered or

considered when older people’s needs are

assessed by social workers.

Some of the organisations giving

evidence to the inquiry believed that

poor commissioning practice in home

care was as much about underlying age

discrimination as lack of understanding

of human rights.

Part 4: Key challenges to

the human rights of older

people

Inquiry into older people and human rights in home care

“I just think as a society … it doesn’t

matter about older people. They’re not

individuals, they haven’t still got lives to

lead … If you said that some authority was

doing reverse auctions for … adults with a

mental health problem, there’d be an

absolute outcry. People with a learning

disability … there’d be an outcry. But it’s

okay to treat older people [like that] …

to reduce older people to units of time ...

I don’t want that for me or anybody.

I suppose it’s just really basic stuff

isn’t it? Why does anybody think that’s

all right?”

Local authority care manager

Other local authority interviewees pointed

out that care packages for older people

were less likely to include support to allow

them to take part in their local community

than those for most younger adults. This

was ascribed to ageism.

“We are still ageist across the statutory

agencies, there’s no two ways about it …

you wouldn’t think twice about younger

people getting a lot of support around

social interaction, about social networking

… you wouldn’t think twice about funding

that. There’s no way on this earth a) we

could afford to, or b) we’d really have the

inclination to do that [for older people].”

Local authority senior manager

Age discrimination in social care directly

affects older people’s human rights. We

heard from some care provider agencies

that the resources allocated through local

authority commissioning were often not

enough to deliver the amount and quality

of home care required in their contracts.

As a result, older people had 15-minute

visits, from care workers who were rushed

and unable to finish the tasks that were

allocated for each visit.

“A provider outside London described the

care specified by a council for a 15 minute

visit: ‘Prepare food as per service user’s

request; prepare jug of drink; prompt him

to drink, eat and take medication; ensure

house clean, if necessary.’ The provider

also noted the need to complete the care

record within that time.”

United Kingdom Homecare

Association

Older people gave numerous examples of

human rights being at risk or actually

breached, such as when they hadn’t had a

hair wash for weeks or were left without a

meal because of the lack of time. As

illustrated by the quote above, our

evidence also shows that support for social

interaction and going out was not included

in care packages which tended to be

limited to support for basic physical needs.

The amount of money allocated to

individuals in their personal budgets is

calculated using a formula known as a

Resource Allocation System (RAS).

Concerns about how these tools were

designed, their lack of transparency and

the impact on older people were raised by a

number of voluntary sector organisations.

Through their work in this area, Age UK

have identified three ways in which local

authorities could potentially discriminate

against older people in allocating

resources;

By using different Resource Allocation

Systems for older people and younger

adults. The Resource Allocation System

recommended by ‘In Control’, for

example, uses different resource tools

www.equalityhumanrights.com/homecareinquiry

to ending age discrimination in health and

social care. With this goal in mind, the

Department of Health has already

commissioned a good practice guide on

social care from the Social Care Institute

of Excellence (SCIE),

which emphasises

the importance of making sure resources

are allocated fairly regardless of age. One

London borough has chosen to adopt the

same application of the Fair Access to Care

criteria and the same Resource Allocation

System for adults of all ages. We hope

more will follow.

Lack of informed choice

on care

Positive obligations linked to

choice on care

As explained in Part 1, because of the HRA

public authorities must comply with the

rights guaranteed by the ECHR. So, in

carrying out their powers and duties, local

authorities must respect older people’s

personal autonomy, protected by Article 8

of the ECHR. As far as possible, they

should be given the opportunity to make

decisions for themselves about the home

care options that are available.

In carrying out their functions, local

authorities also have positive obligations

to promote and protect human rights. This

means that in some circumstances they

may have to provide older people needing

home care with information about their

human rights if it is clear that their rights

are at risk.

Lack of understanding

Our evidence showed that many local

authorities had a patchy understanding

about the practical implications of these

human rights obligations, but also that

for younger adults and for older people.

The two tools cover broadly similar

areas but with different weightings; the

one for younger adults places more

emphasis on social involvement

whereas the one for older people places

more emphasis on health conditions.

Where a ‘points based’ system was used

to allocate resources, older people

might receive fewer points for the same

level of need.

Points based systems entailed allocating

a sum of money per point; in some

cases older people would receive lower

amounts per point.

Ban on age discrimination

We have seen that Article 14 of the ECHR

gives protection against discrimination in

the enjoyment of other ECHR rights. Our

findings included evidence that, in

contrast to younger disabled adults, older

people’s care packages rarely include

support for activities outside the home – a

discrepancy which raises concerns about

compliance with Article 14 taken in

conjunction Article 8 – the right to respect

for private life.

However, the HRA does not provide a self-

standing prohibition on discrimination.

Anti-discrimination rights are now

consolidated into the Equality Act 2010.

Although the Equality Act contains

provisions banning age discrimination in

services and public functions, these are yet

to come into force, possibly in April

2012.

At that point, age-related

discrepancies in financial support for

home care will become unlawful under the

Equality Act – unless they can be

‘objectively justified’. We welcome the fact

that the Department of Health has

expressed support for these provisions

being brought into force, and is committed

Inquiry into older people and human rights in home care

older people and their families have little

or no information about what their rights

are, let alone what to do if they are at risk.

Our face-to-face interviews with older

people revealed that most had little

understanding of the quality of service

they should expect. The information that

was available was often inaccessible (some

being entirely web-based and out of reach

to households without internet access) and

made no mention of their rights, let alone

their human rights. It was sometimes

inconsistent, incorrect or out of date.

Self-funders were highlighted as receiving

limited information from local authorities

to allow them to choose services with the

quality and security they needed –

sometimes receiving just a list of local

independent care providers.

Since information is the only type of

support that most self-funders are entitled

to receive from local authorities, it is

worrying to hear of instances where it has

been inadequate. Arguably, local

authorities have a positive obligation to

provide self-funders with information

about risks to their human rights,

particularly when someone is forced to

fund their own care because they just fall

short of a ‘substantial’ or ‘critical’

threshold for eligibility.

For older people and their families –

including self-funders and people

receiving direct payments – to exercise

real choice and autonomy they need

comprehensive information about local

care providers and the services they offer.

Older people who sent written evidence

explained how difficult it is to differentiate

between organisations without any

indication of quality. The current system

of reporting whether or not a provider

complies with CQC standards only informs

the public that a provider complies with

minimum standards. We were told that

what people need is information about

providers’ performance on particular

aspects of service that an older person

might be interested in – for example,

respect for cultural needs or supporting

people with dementia – so that people can

choose a provider that suits them. In view

of that, it is all the more important that as

much information as possible, including

detailed inspection reports, should be

made available to the public.

Interviews and written evidence also

stressed the need for adequate support

and information to be given to older

people about personalised care, so that

they could make an informed choice

between managed accounts and direct

payments if they wished to pursue this

option. Many of the people who submitted

evidence on this issue thought that the

information provided in many authorities

was inadequate.

Brokerage services, where an organisation

other than the local authority takes on the

responsibility for managing the personal

budget, is an option which some older

people found attractive. However, the

availability of age-tailored support and

brokerage is thin on the ground. It is being

provided by voluntary sector organisations

representing older people (such as local

Age UK organisations) in some places. In

other places the local authority might help

older people to set up direct payments,

but then they are often left to their

own devices.

Lack of investment in

home care workers

Care workers are uniquely placed to see

when the human rights of the older people

www.equalityhumanrights.com/homecareinquiry

they support may be under threat. They

may be the only person to visit the older

person in their home on any given day, or

even week. Unfortunately, our inquiry

findings show that many care workers

have little time to do their work properly,

let alone sit down and chat to someone to

find out if there are causes for concern.

Given that many older people themselves

are reluctant to complain, this may mean

that risks to human rights may go

unnoticed. The situation is even more

acute for people with dementia or those

without supportive family and friends.

This state of affairs must be addressed

before the human rights of older people

receiving home care are properly

protected.

Care workers are low paid, and may

get little training and inadequate

supervision and support. The workforce is

predominantly female and part time

and

there are no qualification requirements.

“The workforce ... currently accounts for

80 per cent of the total expenditure in

social care, but inevitably affects 100

per cent of how individuals experience

the service.”

National Pensioners’ Convention

response to call for evidence

Pay and working conditions

Social care staff make up around 1 in 10

minimum wage workers, and home care

staff are recognised by the Low Pay

Commission as working in a sector with a

high proportion of minimum wage

workers. In 2009 care workers’ hourly pay

rates in the private sector were around

50p less than those of retail sector

workers.

For that year, the average

minimum pay rate for home care workers

employed by independent sector agencies

was £6.40 an hour.

We were told that, in

practice, this figure can be lower when

care workers are paid according to the

time allocated for each visit, and not paid

for their travelling time.

Although the National Minimum Wage

(NMW) Regulations do not require

workers to be paid for travelling time,

their pay when averaged over all

qualifying working hours must be at least

the NMW level. Qualifying working hours

for these purposes includes time spent

travelling between visits. It is estimated

that travelling time between visits adds

approximately 20 per cent to a care

worker’s paid time,

which would imply a

minimum hourly pay rate from 1 October

2011 of £7.29

to meet NMW levels.

Only a very small number of the local

authority service specifications we

analysed included any reference to the

terms and conditions of home care

workers, and only one mentioned that pay

rates should be above the NMW to take

travelling time into account.

“My mother was ... entirely dependent on

visiting carers for all her needs. Ladies

came on buses to provide the 30 minutes

four times a day. Sometimes the journey

could take them nearly 2 hours with a final

half mile uphill to walk from the bus stop.

They were exhausted and not paid for

travel time. If they were unable to get to

a shift it often went without cover.”

Daughter of older woman previously

receiving home care currently in

residential care, South of England

Inquiry into older people and human rights in home care

A number of local authorities responding

to our survey identified the poor pay and

conditions of home care workers as a key

barrier to promoting human rights. The

effect on staff retention, training levels and

the quality of staff attracted to the industry

all have a knock-on effect on older people.

“The workforce is low paid. Human rights

are best promoted through providers being

able to offer a competitive wage that would

attract better quality staff who understand

human rights issues and live the values.”

Local authority responding to survey

This was also raised by Unison who

submitted evidence of a continued downward

pressure on pay and increasing numbers of

workers receiving payment below the

National Minimum Wage. They attribute this

partly to the emerging employment practices

of ‘stretching unpaid hours.’

“Low pay and stretched unpaid hours

correlate directly to the high rate of

turnover in the workforce. The lower the

pay, the higher the churn and turnover rate

in the workforce. This benefits no one,

making well-trained, person centred care

extremely difficult to deliver.”

Unison’s response to the call for

evidence

Workers’ pay makes up a significant

proportion of home care providers’ overall

costs. Home care providers indicated that

when rates are cut by commissioning

bodies, the pay and conditions of workers

are likely to be affected.

“The Care Agency which has won the social

services contract for my area has obviously

pared its bid down to the bone to win the

contract and the regular supply of work

that this brings.

They have insufficient staff to fulfil all

their obligations, particularly at weekends,

and as their pay rate is low they have a

huge staff turnover, meaning that staff are

often inadequately trained. This has an

obvious impact on their clients who are

often left for long periods of time between

visits.”

Private sector provider, South of

England

One local authority identified improving

care workers’ employment conditions as

being of central importance in helping

them deliver a high quality home care

service to the older people in their area.

This was reflected in their approach to

procurement of home care providers.

“We wanted to improve the care workforce

... We wanted to see staff on salaries,

no zero hour contracts, proper career

structures ... staff who are skilled up and

trained to provide a variety of needs ... So

we have asked providers to clearly tell us

in their bids, how are they going to do

something to improve the workforce and

staff. .. I just think there isn’t any job that

is more significant or important in

people’s lives than ... the dom[iciliary] care

worker. And yet ... dom care workers, they

get minimum wage, they get rubbish

hours, they don’t get holidays.”

Local authority commissioning

manager

Interviewees from local authorities and

independent sector home care providers

raised concerns about the impact of

commissioning at very low rates on

www.equalityhumanrights.com/homecareinquiry

workers’ pay and conditions. Given the

very low rates in some local authority

contracts, some could not see how these

would cover the essential costs of service

delivery. Although providers are free to

take contracts and incur a cost, this may

not be a sustainable approach to

commissioning home care.

These concerns have been echoed by the

Low Pay Commission, which has

repeatedly recommended that the

commissioning policies of local authorities

should reflect the actual costs of care,

including the National Minimum Wage.

“We were concerned by evidence

indicating that the level of fees paid by

public sector bodies when purchasing

care services from the independent social

care sector did not reflect minimum

wage costs.”

Low Pay Commission Report 2011

Core skills including literacy

and English, induction and

training

The inquiry evidence indicates potential

risks to human rights when care workers

lack core skills to do the job, including

literacy and English. A number of older

people felt the verbal and written English

language skills of some care workers –

often, though not always, from migrant

communities – meant they couldn’t do

some aspects of their job as well. They

couldn’t fully understand conversations

with older people, keep accurate written

records or pick up on areas of concern,

and there was the possibility of serious

misunderstandings.

“Miscommunications are often very risky

if you have recorded, or you think you

have, that you’ve given some medication.

Informal carer arrives and doesn’t realise,

then you’ve got a double medication

potentially. We have seen that.”

Director, voluntary sector care

provider, South of England

Conversely an interviewee working with

people with dementia had experience of

migrant care workers paying greater

attention than others to communicating

with older people because English was not

their first language.

We heard of good practice to improve the

skills of care workers. Some providers take

steps to arrange NVQ training for care

workers who need to improve their

literacy and numeracy, which was seen as

very beneficial.

Others stressed the need for a robust

induction that ‘exceeds mandatory

standards’ and covers all aspects necessary

to deliver high quality care – including

human rights considerations such as

dignity, respect and autonomy. Some saw

induction as an opportunity to pass on the

values of the organisation to new home

care workers – as well as practical

information – and ensure that workers

understood that these were intrinsic to

their role. One provider has a six-day

induction which includes service users and

informal carers talking about how

receiving care affects them and their lives.

We consider that this sort of practice

needs to be rolled out across the sector to

ensure that care workers are properly

equipped and supported to do their job.

Inquiry into older people and human rights in home care

Output-driven

commissioning

As we have detailed in Part 3c, our

evidence tells us that good commissioning

is central to ensuring a human rights-

based approach to service delivery, and

that local authorities can go a long way to

satisfying their obligations to promote and

protect human rights if they get

commissioning right – for example, by:

ensuring commissioning plans

incorporate a human rights approach

using service specifications that require

practices and outcomes aimed explicitly

at promoting and protecting human

rights

involving older people using services in

the commissioning process

proactively monitoring contracts to see

that human rights are respected, and

taking action when they are not.

Unfortunately, as there is no independent

regulation of social care commissioning it

is difficult to check whether this is

happening. Although there was some

evidence of good commissioning, we

received a lot more that pointed to

commissioning practices that do not

promote and protect human rights. We

think this is largely due to the general lack

of awareness about the practical

implications of human rights

responsibilities among local authorities,

which is exacerbated by financial

constraints.

‘Time and task’ commissioning

Much evidence indicated a restrictive

over-emphasis on a ‘time and task’

approach to commissioning, along with a

lack of focus on outcomes.

In some cases, the terms for delivering

home care were so tightly defined and

inflexible that they could place older

people’s human rights at risk. According

to our analysis of service specifications

and related documents, some local

authorities specify how many different

care workers people can have in any given

period. The intention may be to limit the

numbers, but the actual numbers

permitted in the specifications (up to 10

a week in some cases) are significantly

higher than older people are likely to find

acceptable – potentially jeopardising their

right to respect for private and family life

under Article 8 of ECHR. Similarly,

several specify quite narrow time bands

for meals or help with daily activities such

as getting up and going to bed, which

obviously places significant restrictions

on choice and autonomy for older people.

As mentioned before, home care workers

themselves experienced frustration at

being unable to depart from an inflexible

list of tasks to fit in with the individual

needs of an older person.

Re-ablement services provide short-term

support – often for people who have just

left hospital. We were informed that many

local authorities take a more user-driven

approach to these services, with a focus

on assisting older people to identify

and achieve their own aspirations. This

approach could valuably be incorporated

more widely into the delivery of home care.

www.equalityhumanrights.com/homecareinquiry

Financial constraints on

quality

Financial restraint is a reality, and is

making the home care system more time

and resource poor. However, our evidence

shows that, even within current financial

constraints, some local authorities are

successfully finding innovative ways of

doing things differently rather than simply

doing less of the same. As Baroness

Greengross said on the BBC Radio 4

Today Programme:

‘Society has to get

this right and I do believe that human

rights as a tool can help to get it right

without additional cost – just a better

awareness of what you or I would want if

we were vulnerable and frail.’

We also heard from a number of

organisations and individuals that the

approach of some local authorities in

response to financial constraints has been

to reduce the amount of time that home

care workers spend with each older

person. The same tasks had to be delivered

in a shorter time which, as illustrated in

Part 3b, creates a real risk to the human

rights of older people receiving home care.

Other local authorities have raised their

eligibility criteria, so more older people

who need home care now have to pay for it

themselves, manage without support or

face moving into residential care.

We also heard about a move to reduce the

number and frequency of home care visits.

A number of older people, home care

providers and representative

organisations highlighted the impact of

these reductions. In extreme cases such as

the example below, reductions in visits

could lead to a breach of the right to

respect for private life under Article 8.

“A lady in her 90s no longer receives the

seven evening-time visits to help with

personal care and check-up on her safety.

Since the council … reduced her care by 41

per cent in January 2011, she has been

scalded attempting to make a cup of tea;

has spent a night lying on the floor

undetected after a fall; and a skin

condition has deteriorated as she is unable

to apply the lotion she needs. She now

telephones her daughter in the evenings in

a state of distress. The reduction in hours

saved the council about £62 a week.”

United Kingdom Homecare

Association written evidence

There is also a question mark about the

sustainability of cost-cutting trends in

some areas in the medium and longer

term. Some interviewees consider that,

although a local authority may make

short-term savings, this approach is likely

to be more costly in the medium to long

run due to extra costs of increased hospital

admissions, faster deterioration of medical

conditions, urgent reviews of service by

social workers and the need for more

monitoring. However, many of these costs

would be borne by health services rather

than local authority social care budgets, so

there is less incentive for local authorities

to quantify these related financial

consequences of their decisions.

“One of the dangers is what I call cut and

slash ... cut the home care hours down to

15 minutes ... Yeah it saves money but ... at

the end of the day if you don’t meet those

needs it’ll cost you more ... If there’s

somebody in the community with real

complex needs ... they will go into

hospital, there’s no two ways about that,

that’s where they’ll end up and that will

cost ... a hell of a lot more.”

Local authority senior manager

www.equalityhumanrights.com/homecareinquiry

Our evidence is that some older people

endure treatment that is distressing, which

in certain cases breaches their human

rights. In many cases nobody would have

become aware of this treatment if we had

not gathered evidence from the older

people concerned. Clearly, therefore, the

current systems for exposing problems are

either insufficient or not operating

properly. The significant barriers

preventing older people from complaining

were largely acknowledged by the local

authorities, providers, voluntary sector

organisations and care workers who spoke

to us.

As we have already noted, public

authorities’ positive obligations to promote

and protect human rights include a duty to

respond to human rights breaches, which

may include carrying out an effective

investigation into credible complaints of

human rights violations – whether or not

carried out by their own staff. Positive

human rights obligations also include a

requirement for a legislative and

administrative framework to deter conduct

that would infringe fundamental rights. In

this context, it is important that there

should be effective avenues for complaint

that allow human rights concerns in home

care to be brought to light.

Current avenues for

complaint

Currently, the standard ways that may

bring problems or areas of concern to light

are surveys, complaints, safeguarding

boards and whistleblowing.

Satisfaction surveys

Both local authorities and home care

providers carry out surveys to find out how

satisfied older people are with their home

care services. In a recent national survey,

58 per cent of older people receiving home

care say they are very, or extremely

satisfied with the care they are getting.

Although we recognise there are many

committed providers delivering high-

quality home care, we believe this figure

may not be a completely accurate reflection

of satisfaction levels as our inquiry also

found that many older people do not have

high expectations and are reluctant to raise

concerns.

Voluntary sector organisations and home

care providers also told us that the paper-

based questionnaires generally used may

not be the most effective way of overcoming

older people’s reluctance to raise concerns.

Part 5: How can threats to

human rights in home care

be brought to light and

dealt with?

Inquiry into older people and human rights in home care

Some providers use other methods, for

instance involving service users, including

older people with learning difficulties, and

family members in monthly customer

focus groups to discuss service issues that

concern them.

“It gives (service users) a great

opportunity to address any issues ... I

think it’s a terrific idea. It gives us a sense

of confidence and we are more involved

now than we were ever before.”

Older man receiving home care,

London

Complaints

People can complain to:

Their care provider – most people

make their initial complaint to the care

provider. Independent home care

providers must have a system for

receiving complaints and inform people

how to use it. In the last 12 months, 42

per cent of home care providers who

took part in our survey had received a

complaint or been made aware of a

human rights-related problem.

The local authority – people

receiving publicly funded care can

complain to the local authority. All local

authorities and health authorities are

required to have complaints

procedures, which must include a

designated complaints manager and a

three-stage procedure to deal with

complaints (local resolution,

investigation and review panel). All but

one local authority who took part in our

survey had received a complaint or

safeguarding referral, or had been made

aware of problems relating to human

rights in the past 12 months.

Complaints came from a number of

sources including service users,

funders, care providers and

whistleblowers.

The Local Government

Ombudsman – people who pay for

their care privately can now complain

about their care to the Local

Government Ombudsman. They had no

external complaints system before the

Ombudsman’s remit was expanded in

October 2010 to include complaints

from self-funders. This was also

expected to improve the standard of

complaint handling by independent

care providers.

The CQC – although intelligence is

mainly passed to the CQC by care

providers and local authorities, it also

collects information directly from older

people and care workers (although it

does not investigate complaints from

individuals). All of this intelligence

contributes to decisions CQC makes

about regulatory action. We welcome

the fact that the CQC has recently

updated its website to make it clearer

how people can give direct feedback

(good and bad), anonymously if they

choose. However, more work could be

done to raise awareness about how

older people and their families can feed

information direct to the CQC.

Referrals to safeguarding boards

Local authorities’ Adult Safeguarding

policies act as a safety net and aim to

prevent abuse of adults at risk. If an adult

with health or social care needs appears to

be at risk of harm and unable to safeguard

www.equalityhumanrights.com/homecareinquiry

themselves, social services should ensure

there is an investigation – although

currently there is no legal duty to do this.

The government intends to implement

the Law Commission recommendation

that adult safeguarding boards be given a

statutory basis, giving local authorities

legal duties to run them and make sure

investigations are carried out. This is a

recommendation that we strongly

support provided that clear lines of

accountability are established when other

agencies lead investigations.

Whistleblowing

The majority of the home care workers

who gave evidence to the inquiry told us

that they would report any concerns

about suspected abuse of older people to

their line manager. Indeed, 51 per cent of

local authorities in our survey had

received a complaint or been made aware

of a problem about human rights through

whistleblowers.

For older people who cannot or do not

want to complain about their treatment,

it is essential that care staff who might be

willing to act as whistleblowers can be

assured they will not lose their job and

that their complaints will be listened to.

We explored the issue of home care staff

raising complaints with Public Concern

at Work, which operates a free,

confidential telephone advice line for

workers who have witnessed wrongdoing

in the workplace and are not sure

whether or how to raise their concern.

They told us that 15 per cent of calls

come from the care sector, the highest

figure from any one sector of

employment.

Public Concern at Work analysed 30 of

their most recent calls from workers in

home care. In over a quarter of these cases

the worker said their concerns had been

ignored by their line manager. In some

cases these were eventually acted on by a

more senior manager or reported

elsewhere by the caller.

Case study

A home care worker had seen a family

member verbally and financially

abusing her elderly relative. The lady

was bullied, given little food, and she

had to beg for her own money to be

spent. The family member refused to

buy incontinence pads and left her

alone and unfed on Christmas Day.

The worker raised this with their line

manager, who allegedly did not want

to rock the boat with the relative as the

care company received a lot of money

for the lady’s care. The worker was

then removed from supporting the

older woman until staff shortages

meant the caller was placed with her

again, and had the same concerns.

The worker then raised their concerns

with the regional care manager, who

investigated the matter.

Public Concern at Work

Employment protection for

whistleblowers is provided by the Public

Interest Disclosure Act 1998 (PIDA). The

CQC is named in this Act as a ‘prescribed’

body, that is an organisation that care

workers can raise whistleblowing alerts

with if they don’t feel confident to do so

with their employer. However, we heard

that some workers who wanted to raise

concerns about poor or abusive practice

Inquiry into older people and human rights in home care

had had difficulty making contact with the

CQC or finding someone to take up their

whistleblowing alert, partly because the

CQC does not have a dedicated telephone

hotline. Some felt the CQC have not done

enough to tell care workers they can

disclose bad practice to the CQC.

We therefore welcome the CQC’s current

review of its whistleblowing procedures in

the wake of the abuse revealed at the

Winterbourne View private hospital. The

review has resulted in new ways of

working including a dedicated

whistleblowing team at the CQC call

centre and revised guidance.

How well can complaints systems

protect human rights?

The evidence to this inquiry strongly

indicates that complaints systems,

although valuable, cannot by themselves

provide the necessary protection of human

rights. In fact breaches of older people’s

rights are often not dealt with because

older people themselves are reluctant to

make complaints. Many are unaware of

their rights, and would in any event be

fearful of using a complaints system. This

is understood and acknowledged by most

local authorities, care providers and

regulators.

It became clear that the overwhelming

preference of older people is for issues to

be brought out and resolved without the

need for them to make a formal complaint.

Therefore the emphasis should be on

providing low-level, informal methods of

resolving issues quickly. Some providers

we interviewed already provide informal

methods, such as regularly inviting service

users to give feedback on their care. As we

have seen, the local authorities may in

some circumstances have positive

obligations to respond to human rights

breaches. This can mean that they have a

duty to use their legal powers to

investigate credible allegations of human

rights violations – even where complaints

have not been raised.

Also, given the importance of the Local

Government Ombudsman’s role in

allowing people who fund their own social

care access to independent consideration

of their complaints, it seems necessary to

support the Ombudsman to take steps to

make self-funders aware of their right to

redress and how they can use it.

Why don’t older people want to use

complaints procedures?

Just under a quarter of the older people

and family members who responded to the

call for evidence told us that they would

not have the confidence to make a

complaint. Reasons included:

not wanting to upset care workers or get

them ‘in trouble’ – many had formed a

bond with them, or were worried that

they would be less friendly in future

unwillingness to ‘make a fuss’

being afraid of being put into

residential care

fear of retribution

fear of losing their care, or that it would

be badly disrupted

thinking that complaining would not

improve the poor service they received

previous negative experience of making

complaints

being ashamed of admitting they could

not do things for themselves.

www.equalityhumanrights.com/homecareinquiry

Some of those who said they would or had

complained stated that they had or needed

support from family or friends to do this.

During our interviews with older people,

we found many stoically endure poor care

without complaint, grateful to receive

publicly funded care. Some had low

expectations of home care services,

seeming to accept poor practice as an

almost inevitable part of the package.

Several voluntary sector organisations

who support older people echoed this.

“I felt that for a number of people I saw,

their expectations of help at home were

quite low, and that they were grateful for

just getting a service.”

Manager voluntary sector

organisation

Compounding these factors was a

prevalent attitude among many of the

older people we interviewed of not feeling

it was totally legitimate to feel upset or

angry about poor home care services. They

were generally apologetic or embarrassed

about mentioning things that had gone

wrong. Our findings are supported by the

experience of Age UK and the British

Institute of Human Rights about the

barriers that discourage older people from

raising human rights concerns with

service providers or the local authority.

Empowering older people – how

much information and choice do

they have?

Many older people didn’t know how to

complain – around one in five of the older

people and family members who responded

to our call for evidence – or where to find

information about making complaints.

“I worry very much that I may not get any

help if I complain. Worry I will be seen as

‘awkward’...[I] Would not allow family to

complain either.”

Woman in her 80s receiving home

care, South of England

Even when older people knew where the

complaints information was they didn’t

feel they should refer to it. Often the

information about how to complain is kept

in a file which home care workers write in

after visits, and many of the older people

we interviewed felt it was the property of

the provider organisation. They didn’t feel

it belonged to them or didn’t want to touch

it for fear of being seen as a troublemaker.

Older people also mentioned practical

obstacles such as:

not being sure which organisation was

responsible for what, between the care

provider agency and social services

a lack of clear information about what

to do if they wanted to talk about

concerns or make a complaint

not knowing they had a right to

complain – for example, one older man

said that if he had serious problems he

would just have to stop having care

workers, on the basis that the home

care service is a matter of ‘take it or

leave it’

mechanisms for raising issues and

making complaints that they could not

use – one older woman, who is blind,

found it impossible to call the agency or

local authority as their telephone

switchboards rarely led to ‘real’ people,

and often involved having to note down

other telephone numbers to call:

creating a culture that supports a

regular dialogue between providers

and service users – e.g. face-to-face

meeting with the care provider

manager at the start of a home care

relationship, leaving a name and phone

number to call, encouraging the person

to make contact, regular check-in

meetings or phone calls

better and clearer information for older

people about their entitlements,

including human rights, and on how to

raise issues and make complaints

empowering older people by actively

raising awareness of their human

rights and explaining what to do if

those rights are at risk.

A project run jointly by Age UK and

the British Institute of Human Rights

worked with older people to put a

human rights approach into practice.

It supported three groups of older

people, empowering them to use

human rights principles and standards

to press for the improvement of local

public services. For example, one

group produced a DVD highlighting

the issues that older lesbian, gay,

bisexual and transgender people can

face in residential care, and the impact

this can have on their human rights.

Some good practice

Some independent home care providers

and local authorities have recognised

that a lack of complaints should not be

regarded as evidence that there are no

issues to be resolved, and have created

various proactive means of identifying

issues.

Inquiry into older people and human rights in home care

“At one time I used to do all sorts of things

on the phone but now I can’t, I have to feel

for the numbers. Everything is getting very

difficult at the moment … You see when

you ring up social services, they don’t give

you a certain one; you’ve got to have the

next one that comes on the phone; I’ve

been on that phone yesterday for an hour,

it’s like a record … When you ring up [the

agency] they give you a mobile number. I

can’t write anything down because I can’t

read it back, so if they give me a mobile

number it’s too long for me to remember.”

Woman, 78, lives alone, local

authority-funded and self-funded

care

Information for self-funders

For self-funders, the picture appears even

less clear. The Local Government

Ombudsman told us that many providers

still tend not to mention the Ombudsman

in the complaints information they give to

service users. They had discovered that,

whereas most providers included a

reference to the CQC in their complaints

procedures, less than 40% included a

signpost to the Ombudsman.

The Ombudsman acknowledged the need

for greater public awareness of their role.

Informal mechanisms for issues to

come to light and be resolved

There is a need to go further than simply

distributing ‘how to complain’ leaflets.

This is a complex issue, but our evidence

and examples of best practice suggest that

what works is:

www.equalityhumanrights.com/homecareinquiry

One care provider made sure that older

people knew how to raise issues of concern

and that they had met a manager from the

agency so would feel more confident in

raising issues with someone they were

familiar with. Older people receiving home

care from this agency told us that they felt

comfortable in raising issues with the

agency managers and staff and gave us

examples of where they had done this.

Other providers also recognised that older

people are more comfortable raising issues

with someone they know. Measures to set

up an easy dialogue are definitely more

likely to capture issues that could develop

into human rights risks. Some providers

have regular four-weekly consultation

meetings with each older person, to share

information and hear feedback. We also

heard from providers where the manager

of care workers has an initial visit with

each person receiving home care to

establish a relationship.

A local authority had built up a team of

‘citizen assessors’ (mainly older people or

relatives of people receiving home care),

who are now an integral part of the

authority’s quality assurance system. The

citizen assessors undertake annual audits

of home care services by interviewing

home care service users and care

providers. This approach is bringing out

far more of the older people’s issues of

concern or complaint. The citizen

assessors, as their peers, overcome older

people’s reluctance to raise issues with

‘official’ bodies and also engage them in

face-to-face conversations where they felt

far more comfortable discussing areas of

concern.

We also know from our analysis of local

authority home care service specifications

that most require providers to give older

people clear and accessible information

about how to raise issues and complaints,

including referring complaints on to local

authorities or regulators. Some spelled out

that they required providers to take a

positive attitude towards encouraging

comments or complaints. A few

acknowledge the reluctance of older

people to complain, and so flag up the

need to communicate to them their right

to complain without fear of recrimination,

and create an open culture welcoming

all feedback. Whether or not these

requirements always translate into

practice seems questionable given what

we heard from older people.

Satisfaction with the outcomes of

complaints

We heard from a few older people who felt

satisfied about how issues or complaints

had been dealt with and the eventual

outcome.

“I did raise issues with [the private sector

agency] occasionally and they were very

responsive … If the agency had not been

responsive, I don’t know where I would

have gone.”

Step-daughter of older woman with

self-funded home care, East of

England

Others felt confident about raising issues

of concern direct with their home care

worker.

Inquiry into older people and human rights in home care

She used her care plan to check what

duties care workers performed and to add

her own comments for the care agency.

She had complained repeatedly to care

providers about sending care workers she

didn’t know, and changing care workers or

the times of visits without letting her

know. She had also complained about

poor workers, preferring to keep

individuals she had formed a relationship

with and ‘trained’. The most common

problems she had experienced in

complaining included:

being, in her view, ‘fobbed off’ – not

being listened to or taken seriously (by

the care provider)

being passed from one person to

another; often going round in circles

(when pursuing her complaint with the

local authority as the care

commissioner)

having to be very determined and

persistent – to the point of threatening

to write to her local MP – to get things

changed.

How well does the

legal and regulatory

framework protect

human rights?

Not all home care is delivered through a

local authority contract, so not everything

could be picked up by local authority

monitoring, however effective. It is

therefore important that the system for

regulating the home care sector is fit for

purpose, and that there is a sufficiently

robust legal framework for protecting

service users from human rights abuses

and age discrimination.

“One girl she came one morning and she

hadn’t put the gloves on … I knew they

were supposed to put them on and I just

said, ‘have you got your gloves?’ … I didn’t

feel embarrassed asking her and she didn’t

seem to take any umbrage that I’d

mentioned it.”

Older woman receiving home care,

North of England

In contrast, many spoke of a bad

experience of making a complaint and

felt it was pointless complaining again

because of that experience.

“Yes [I know how to complain] and no

[I wouldn’t make a complaint]. I would

know what to do but I felt I have been

treated badly afterwards because I felt the

need to complain. You get labelled

as a troublemaker!”

Woman aged over 75 with part-

funded home care

“I consider [complaining] a futile exercise

since I have had a complaint against

social services since 2009. I speak from

experience having been fobbed off for

2 years.”

Wife of 85-year-old man with local

authority funded care, Midlands

Even for an assertive and empowered

home care user, the systems in place for

feedback and complaints can cause

frustration. For example, one older

woman we interviewed took a keen

interest in the quality of the care she got,

and felt it was her right as a client to get a

service that suited her as well as meeting

her needs.

www.equalityhumanrights.com/homecareinquiry

Evidence from our inquiry suggests that

the legal and regulatory systems are not

strong enough to ensure the protection of

human rights for older people receiving

home care, because:

The CQC is under-resourced for its

important regulatory role and its

approach to human rights needs to be

enhanced.

The Human Rights Act (HRA), which in

any case only provides a minimum

irreducible standard of human rights

protection, does not extend to home

care services provided by private and

voluntary organisations.

Legislation has not yet been introduced

to outlaw age discrimination in services.

Social care legislation is not explicitly

underpinned by human rights

standards.

Are human rights embedded

into the regulation of social

care?

As we have seen, local authorities have a

key role in monitoring the home care

services that they commission from

private and voluntary sector providers.

However, as the regulator of this sector,

the CQC has an equally important role in

picking up on potential threats to human

rights from qualitative information

supplied by local agencies and other

sources, as well as older people

themselves. Because of the HRA, the CQC

must carry out its statutory role so as to

comply with the European Convention on

Human Rights (ECHR). It may also have

to take active steps to promote and protect

the human rights of home care service

users – including those who fund their

own care in some circumstances.

As discussed in Part 1, all care providers

must be licensed with the CQC and must

meet its essential standards, set out in a

series of regulations. Although these

regulations do not refer specifically to

human rights, the CQC has recognised

that a human rights approach is consistent

with its own values. However, human

rights are more likely to be expressed in

terms of privacy, dignity and

independence than to be explicitly

referred to in CQC documents. For

example, Outcome 1 under the heading

‘Respecting and involving people who use

services’ states: ‘People using the service

have their privacy, dignity and

independence respected.’ As noted in the

Equality and Human Rights Commission’s

Human Rights Inquiry report, it is

important to use explicit human rights

language. This emphasises that human

rights are enforceable under the HRA

rather than being merely aspirational. For

the CQC, this approach would help show

how specific human rights are relevant to

particular situations and would also

encourage an awareness of its own

positive obligations to promote and

protect human rights.

In September 2011, CQC and the Equality

and Human Rights Commission published

joint guidance for CQC inspectors on

equality and human rights. This gives

practical information linking human

rights to each of the essential standards,

with the aim of ensuring a more consistent

understanding of human rights and

increased response to human rights issues

across their large workforce of inspectors.

Inquiry into older people and human rights in home care

Home care is a challenging sector to

regulate

The complexities inherent in regulating

home care – which by definition is

delivered behind closed doors, by a wide

range of providers, care workers and

personal assistants, and decreasingly

funded by the public purse – were

acknowledged in our evidence.

There was general recognition that the

CQC does not have the resources to tackle

this challenging task. A number of

individuals and organisations were

concerned about the diminishing number

of CQC inspections and that the human

rights of older people receiving home care

may be going unchecked. A large private

sector provider told us:

“I honestly hold out little hope that the

CQC will be able to do much more than

enforce action against the worst providers

in the coming years. Their resources are

already at breaking point.

Some local authorities told us that the

reduction in inspections made the job of

maintaining provider standards more

difficult. Although they tried to fill the gap

by monitoring providers, they expressed

frustration about not having the status to

do so adequately.

Over a period of time, CQC’s role in the

regulation of home care appears to have

reduced, with the responsibility of

monitoring falling more onto

commissioning departments in local

authorities. As much as commissioning

needs to monitor, it is essential that this is

supported by any regulatory bodies who

can take actions if human rights are not

being protected by home care providers.”

Local authority responding to survey

The need to capture older people’s

voices

Our evidence also told us that the risk-

based model used by the CQC did not

seem able to pick up qualitative

intelligence effectively enough. Although

the CQC can hear directly from care

workers and older people, in reality this

does not happen very often, partly because

people don’t know they can contact the

CQC but also because of older people’s

reluctance to raise issues.

The CQC does not rely solely on self-

assessment. However, the reliance on

providers self-assessing by using

questionnaires was seen as inadequate

because it could be completed as a ‘tick

box exercise’. Although this is based on a

model used in hospitals, the evidence

indicates that it is not sufficiently probing

for regulating home care.

We welcome the new regulatory approach

being piloted by the CQC which we

understand will make sure each home care

provider (there are approximately 6,000)

is inspected at least once a year, with

inspections being more frequent where

essential standards are not met . While we

strongly welcome this development, we

believe that the systems for capturing the

voices of older people need to be more

effective. Paper-based surveys may not

elicit such evidence-rich information as

face-to-face contact. They also increase the

risk of excluding people with visual

impairments – a common situation for

older people – and may exclude people

whose comprehension of written language

is affected by cognitive impairment. We

understand CQC is starting to test better

ways of capturing service user views; these

include questionnaires, face-to-face

www.equalityhumanrights.com/homecareinquiry

interviews with older people, intelligence

from local organisations and involvement

of ‘experts by experience’ (who have used

or cared for someone using home care

services).

We suggest the CQC take into account the

limitations of paper-based surveys that we

have identified above.

One or two providers that we interviewed

believed that some CQC inspectors did not

have all the relevant expertise to pick up

on threats to older people’s human rights,

particularly for older people with

dementia.

Monitoring commissioning

A number of organisations and individuals

voiced their concern that the CQC no

longer monitors the commissioning

practices of local authorities. The United

Kingdom Homecare Association (UKHCA)

felt that this change has come at a time

when local authority commissioners are

under particular stress due to constrained

budgets, which they believe has led to

some ‘deteriorating commissioning

practice’. Some organisations view the fact

that the regulator will not be overseeing

commissioning practice as a serious gap

and inconsistency in the system, as the

CQC can no longer comment on poor

commissioning, but only on the quality of

care services which result from those

commissioning practices.

The English Community Care Association

(ECCA) fear this gap ‘will lead to inequity

in the system’ as some issues which shape

the quality of care provided are controlled

by commissioning bodies so they are

outside the influence of care providers

(for example, very short care visits and

time- and task-focused commissioning).

“Local authorities are commissioning large

tranches of care and yet they are not being

called to account for commissioning 10- or

15-minute domiciliary care visits. Unless

CQC is able to regulate the whole system,

much of its outputs will be useless.”

The English Community Care

Association

In its evidence to the inquiry, the CQC told

us that it ‘recognises the frustration that

many domiciliary care providers voice’

around poor commissioning practices.

It hopes that organisations such as Think

Local Act Personal (TLAP), health and

wellbeing boards, clinical commissioning

groups, and the NHS Commissioning

Board ‘will each seriously consider their

roles in levering positive change in this

area’. The CQC also envisages that

HealthWatch could feed in their

experience and knowledge of local home

care providers, and how services are

commissioned locally, to HealthWatch

England, who could then pass on any

concerns to the NHS Commissioning

Board.

While some of these organisations may

have an important role to play in relation

to home care services, and should be

supported in this, we consider that – given

the central importance of commissioning

in promoting and protecting the human

rights of older people – a single regulatory

body should oversee this function.

Inquiry into older people and human rights in home care

Gaps in the coverage of

the Human Rights Act

When care is provided to service users in

their own homes, this may increase the

risk of human rights breaches going

unchallenged. Our inquiry has identified a

great reluctance on the part of older

people to raise any areas of concern about

their treatment. However, they also face a

major legal barrier to complaining about

any violations of their human rights by

home care service providers. Our evidence

supports the case for closing this ‘human

rights loophole’.

As explained in the introduction to Part 1

of this report, the HRA applies both to

public authorities and to other

organisations when they are performing

public functions. However, in the 2007

case of YL,

the House of Lords held that

private and third sector providers of

residential social care under contract to

local authorities fell outside the scope of

the HRA as they were not performing

‘public functions’. Although the court did

not expressly make a ruling on other areas

of social care, its reasoning almost

certainly applies to independent home

care providers too. Legislation has since

been put in place, partly reversing the

effects of this decision, to give direct HRA

protection to residents of private and third

sector care homes whose places are

arranged by local authorities.

Any of

these residents whose human rights are

violated can use the HRA to get legal

redress against the care home provider.

With regard to home care, the YL decision

almost certainly places private and

voluntary sector providers outside the

scope of the HRA – even when their

services are commissioned by local

authorities. This leaves the majority of

home care users without the direct

protection of the HRA: the diversification

of provision is such that 84 per cent of

publicly funded care is now delivered by

the private and voluntary sectors.

The

HRA also gives no direct legal protection

to individuals paying for their own home

care (‘self-funders’) should they

experience human rights breaches by

private or third sector providers.

In 2000, when the HRA came into effect,

many more older people using social care

would have had human rights protection.

At this time, 44 per cent of care was

provided directly by local authorities and

56 per cent by private and third sector

providers.

It does not seem that Parliament foresaw

this lack of HRA protection for users of

home care services. During parliamentary

debates on the passage of the HRA, the

former Home Secretary made it clear that

bodies delivering privatised or contracted-

out public services were intended to be

brought within the scope of the Act by the

‘public function’ provision.

In its 2007

report on the definition of public authority

under the HRA, the Joint Committee on

Human Rights concluded that disparities

in human rights protection created by case

law were ‘unjust and without basis in

human rights principles’.

The human rights protection of home care

users has also been weakened by the

decision of the Supreme Court in the case

of McDonald.

By a majority, the court

decided that it was lawful for the local

authority, given its limited resources,

to withdraw Ms McDonald’s night-time

care and require her to use incontinence

pads instead.

The McDonald Case

Human rights arguments were central

to a case on home care services

decided by the Supreme Court in July

2011. Elaine McDonald, former

principal ballerina with the Scottish

Ballet, was disabled by a stroke and

had a bladder condition. The Royal

Borough of Kensington and Chelsea,

her local authority, had awarded her a

home care package that included a

care worker to help her use the toilet

during the night. Subsequently, the

authority decided to withdraw night-

time care on the basis that Ms

McDonald – who is not incontinent –

could use incontinence pads instead.

The Supreme Court did not agree that

requiring Ms McDonald to use pads

was a breach of her rights under

Article 8 (the right to respect for

private life). Even if this decision had

interfered in her Article 8 rights, the

court took the view that the

interference was proportionate and

justified. The local authority only had

limited financial resources and was

entitled to strike a balance between the

competing interests of an individual

and the community as a whole. But

Lady Hale, who dissented from the

decision, commented: ‘We are, I still

believe, a civilised society. I would

have allowed this appeal.’

After this judgment, the Equality and

Human Rights Commission expressed

concern that local authorities would find

it easier to justify withdrawing care,

www.equalityhumanrights.com/homecareinquiry

putting older people’s human rights at

serious risk. Ms McDonald is now taking

her case to the European Court on

Human Rights in Strasbourg, a process

that could well take at least two years.

Lack of legal protection

from age discrimination

Human rights are universal – they should

not be conditional on age or any other

status. However, our findings suggest

that age discrimination is one of the

factors explaining why older people

face risks to their human rights in home

care services. We came across worrying

examples of differential practices related

to age in the funding and provision of

home care services.

While age discrimination was banned in

employment and vocational training

several years ago,

it has not yet been

outlawed in services and public functions

– including home care services.

Legislation is badly needed to establish

a clear benchmark for the acceptable

treatment of older people. The Equality

Act 2010 contains provisions to put this

ban in place, but this part of the law has

yet to be introduced. The government has

not committed itself to a firm

implementation date – although it has

indicated that commencement should

take place in 2012. Our findings suggest

that the ban should be implemented as a

matter of urgency.

When it comes into effect, the new law

will recognise that some age-based rules

and practices are seen as acceptable or

beneficial. As with age discrimination in

employment, it will be possible for some

Inquiry into older people and human rights in home care

age-differentiated treatment in services

and public functions to be ‘objectively

justified’ in particular circumstances.

The new law will also include exceptions,

making some age-based rules and

practices automatically lawful – for

example, in the financial services sector.

We welcome the fact that there are no

planned exceptions for health and social

care services. This means that age-

differentiated treatment in home care

will only be lawful if it can be objectively

justified. If services that are targeted or

limited by age can satisfy the objective

justification test, the new law will allow

them to continue but it will not be possible

for harmful age discrimination to be

justified in this way; for example, ignoring

older people’s dignity and wellbeing in the

delivery of care. Neither will it be lawful to

offer unjustifiable differences in levels or

types of home care for older people and

adults of working age.

The Equality Act 2010 has also introduced

in a new, integrated public sector equality

duty (PSED), which came into effect in

April 2011. The PSED, which covers seven

protected characteristics including age,

consists of a three-way general duty to

have due regard to the need to (1)

eliminate discrimination, (2) advance

equality, and (3) foster good relations

between groups. In relation to age, the

first limb of the duty is significantly

weakened because unlawful age

discrimination does not yet extend to

services and public functions. This

underlines the importance of

implementing the ban on age

discrimination in these sectors as soon

as possible.

Underpinning social

care legislation with

human rights principles

The effect of the HRA is that public

authorities with responsibility for

designing, commissioning or delivering

social care must perform these functions

in a way that is compatible with ECHR

rights. The NHS constitution requires

providers and commissioners of NHS care

to respect individuals’ human rights.

In contrast, the statutory framework for

social care makes no express reference to

human rights obligations.

At present, the reform programme for

adult social care is high on the political

agenda. To help make the social care

system more coherent, the Law

Commission has recommended a single

statutory scheme to replace the current

‘complex and confusing patchwork of

legislation’.

The report of its review

proposes a three-layer structure,

consisting of a statute setting out core

powers and duties, together with

regulations and a code of practice.

The Law Commission suggests that

‘promoting or contributing to the

wellbeing of the individual’ should be the

overarching statutory purpose of adult

social care. Rather than having a precise

definition of wellbeing, the statute would

have a checklist of factors underpinning

individual decisions. These might include:

assuming that the person is normally

the best judge of their own wellbeing

where possible, achieving a balance

with the wellbeing of others

safeguarding adults from abuse and

neglect, and

www.equalityhumanrights.com/homecareinquiry

using the least restrictive solution when

it is necessary to interfere with the

individual’s rights and freedoms.

The new statute would also set out a

single, clear duty to assess a person, with a

low qualifying threshold, and the code of

practice would specify a minimum level of

services.

The review’s proposal to unify the

statutory framework has clear attractions,

and the Equality and Human Rights

Commission supported this model when

responding to the Law Commission’s

consultation. Our response also argued

that the new statute should be specifically

underpinned by human rights principles.

We believe that the findings of this inquiry

support this approach, which would have

the effect of putting local authority social

care on the same footing as NHS services.

We note that our inquiry findings lend

support to many of the Law Commission’s

detailed recommendations on the reform

of adult social care legislation. In

particular, our evidence supports the

recommendation that decision-makers be

required to respect an individual’s

autonomy by following their ‘views, wishes

and feelings wherever practicable and

appropriate’ and to ensure that ‘decisions

are based upon the individual

circumstances of the person and not

merely on the person’s age or

appearance’.

Likewise, our findings

support the Law Commission’s call for

local authorities to be placed under a

statutory duty to provide information,

advice and assistance services in their area

and to stimulate and shape the market for

services.

We also welcome their

recognition that services should be

outcome-focussed, an approach which is

supported by our own findings.

Earlier

in this Part of our report, we have

indicated our support for the Law

Commission’s recommendation that adult

safeguarding boards be placed on a

statutory footing.

www.equalityhumanrights.com/homecareinquiry

Part 6: Conclusions and

recommendations

Our key conclusions

We drew the following key conclusions

from the inquiry evidence:

Many older people are very happy with

the home care service they receive and

value the autonomy it gives them to

carry on living the lives they want.

However there were many instances of

home care which caused us real concern,

where human rights were breached or

put at risk because of the way care

was delivered.

Many of these problems could be

resolved by local authorities using

opportunities to promote and protect

older people’s human rights in the way

they commission home care and the

way they procure and monitor home

care contracts. However it appears

that commissioning is not being

consistently used to protect human

rights effectively. Indeed some

commissioning practices make the

negative experiences that some older

people described more likely to happen.

There is a general lack of awareness

among public authorities with

responsibility for home care about what

complying with the Human Rights Act

(HRA), including their positive human

rights obligations, actually means. Only

around a quarter of local authorities

train all elected members with lead

responsibility for social care about their

important role in protecting and

promoting human rights. Our survey

responses show that many local

authorities commissioning home care

would welcome practical guidance on

human rights.

There are acknowledged difficulties

in regulating this sector which by

definition is delivered in the home.

Older people are very reluctant to

make complaints, even when they are

aware of how to do so. Therefore more

sophisticated ways are needed to

create an easy dialogue and flow of

information between older people,

care providers, local authorities and

regulators so that any threats to human

rights can be picked up and resolved as

early as possible.

The majority of older people using

home care services lack the protection

of the HRA.

A number of other interlinked factors are

contributing to the human rights risks

identified in our findings:

Age discrimination is reflected in ageist

attitudes towards older people, and

there are indications that less money is

spent on their care compared to other

age groups, with care packages unlikely

to include support for activities outside

the home.

A lack of suitable information on the

different processes and options for

obtaining care and on the quality and

different specialisms of care providers,

Inquiry into older people and human rights in home care

so as to allow older people to make

informed choices. Many older people

and self-funders in particular require

more guidance on local care providers.

There is little or no advocacy or age-

appropriate brokerage support on offer

to assist older people interested in self-

directed personalised home care in

some areas.

There is a lack of investment in care

workers, influenced by commissioning

practice and the workforce being

predominantly female and part time,

leading to low pay and status, in sharp

contrast to the level of responsibility and

skills required to provide quality home

care. Poor pay and conditions also affect

staff retention, causing a high turnover of

care workers visiting older people.

Recommendations

We are therefore making the following

recommendations which include actions

for the Commission as the independent

regulator of equality and human rights.

To address gaps in the current

legal and regulatory

framework:

1. The definition of ‘public function’

under Section 6(3)(b) HRA 1998

should be extended to include the

provision of home care by private and

voluntary sector organisations, at least

when this is publicly arranged. This

would bring home care into line with

residential care services.

2. As there is no longer an independent

regulatory body inspecting or

monitoring adult social care

commissioning, the oversight

framework introduced in October

2010 to uphold standards should be

evaluated by government no later than

September 2012 to assess its

effectiveness in promoting and

protecting the human rights of older

people receiving home care.

3. The government should implement the

provisions in the Equality Act 2010

outlawing age discrimination in

services and public functions by no

later than by April 2012, recognising

the adverse impact of age

differentiated treatment in social care

and the link between negative ageist

attitudes and human rights abuses of

older people.

4. The CQC risk-based approach to the

regulation of home care needs to place

more reliance on inspection of care

providers and obtaining the

unconstrained voices of service users.

We believe it is essential that the CQC

inspects each care provider location at

least once a year, as proposed by the

Care Quality Commission (CQC) itself.

These inspections should be

complemented by a broad and fully

inclusive range of methods of

capturing information from users and

their representatives – including by

capitalising on the intelligence

available from Local HealthWatch

organisations.

5. Given that the CQC has no regulatory

remit over personal assistants who are

not supplied by a care provider, local

authorities should develop ways of

supporting those who employ their

own personal assistants, to ensure

older people’s human rights are

protected. This could include steps

such as funding advocacy and advice

www.equalityhumanrights.com/homecareinquiry

services and facilitating voluntary

registers for personal assistants.

6. The Law Commission’s proposal for a

single statutory scheme for adult social

care, an approach that we broadly

support, should be implemented as

soon as parliamentary time is available.

The new statute should be expressly

underpinned by human rights

principles, putting social care on the

same footing as NHS services.

7. In fulfilling its commitment to

implement the Law Commission’s

recommendation that adult

safeguarding boards be placed on a

statutory footing and led by local

authorities, the government should

ensure that there are clear lines of

accountability when agencies other than

local authorities conduct investigations.

As part of this legislative change,

consideration should also be given to

strengthening and broadening the role

of Directors of Adult Social Services in

relation to adults not receiving

publically funded community care

services who may be at risk of harm.

To address the lack of

awareness among local

authorities about what human

rights obligations mean in

practice:

8. Local authorities should mainstream

human rights into their decision-

making processes and business plans

to ensure compliance with the HRA,

including their positive obligations to

promote and protect human rights.

Human rights considerations should be

at the centre of assessment,

procurement and commissioning of

home care, for example incorporating

human rights requirements into care

provider service specifications.

9. Before October 2012 local authorities

should review their policies and

practice in the light of this inquiry’s

findings as to the causes of potential

breaches of human rights in home

care. As a minimum this should

include examination of the following:

the effectiveness of systems to

overcome barriers that older people

experience in raising concerns or

making complaints

the design and operation of

Resource Allocation Systems with a

view to identifying and removing

any age-related bias that may exist

the extent to which differential

treatment linked to age is present

in care planning and support for

community participation

whether the diverse needs of older

people are being met through

commissioning practices

the extent to which their

commissioning supports the

delivery of care by a sufficiently

skilled, supported and trained

workforce.

10. The Ministry of Justice, the

Department for Communities and

Local Government and the

Department of Health should

collaborate on producing guidance for

local authorities on their duties under

the HRA, including their positive

obligations to promote and protect

human rights, to provide a framework

Inquiry into older people and human rights in home care

for operating more responsively to the

needs of their communities when the

Localism Bill is brought into force.

11. To enhance the leadership of local

authority elected members, training

and guidance should be provided on

using their scrutiny function and their

roles on Health and Wellbeing Boards

to maximise the promotion and

protection of the human rights of

older people.

12. Through their guidance and training

to HealthWatch Local organisations,

HealthWatch England should adopt

a proactive role in disseminating

understanding of obligations under

the HRA and the value of a human

rights approach to home care.

13. To ensure maximum human rights

protection, consideration should

be given to incorporating HRA

obligations into local authorities’

contracts with providers, to include

clauses giving service users ‘third

party’ rights to challenge the care

provider for any breach of their human

rights for which the care provider is

directly responsible.

14. Commissioning practice needs to

balance allocation of resources against

assessed home care needs that must be

met, to ensure contracted providers

can pay at least the National Minimum

Wage to care workers, including

payment for time spent travelling.

15.The Commission will work with the

Association of Directors of Adult

Social Services to produce voluntary

national standards and guidance for

elected local authority members

and local authority officers with

responsibility for commissioning

home care or assessing home care

needs (a) on their obligations under

the HRA, including positive human

rights obligations, and (b) on the value

of applying a human rights approach

to home care services.

To address the lack of

awareness about human rights

and care entitlements amongst

older people and their families:

16. Much more consumer information

should be compiled and made

accessible about the quality of care

providers and their specialist areas to

enable home care users to make an

informed choice, including by means of:

the development of in-depth

provider profiles on the CQC

website

support for a consumer feedback

website

steps by local authorities to draw

together and provide relevant

information on care providers in

their area

increased information sharing

between the Local Government

Ombudsman, local authorities and

providers.

17. We welcome the steps being taken by

the Social Care Institute for

Excellence, Skills for Care, National

Centre for Independent Living, Social

Care Association and others to develop

tools such as voluntary personal

assistant (PA) registers in order to

support those older people using direct

www.equalityhumanrights.com/homecareinquiry

payments looking for a better

understanding of the workforce.

However, in order that more older

people can, if they choose, benefit

from the greater autonomy inherent in

personalised home care, an increased

focus is needed by government and

local authorities on developing

advocacy, guidance and brokerage

schemes.

18.The Commission will work with

stakeholders including UKHCA to

produce guidance for older people

and their families about how their

human rights should be protected

in home care, however funded, and

what to do if those rights are at risk –

including the option of legal redress

as a last resort.

To ensure there are better

arrangements in place to detect

threats to human rights in

home care:

19. The CQC, local authorities and

providers should develop more flexible

ways of ensuring systems for exchanging

information are designed to detect

threats to human rights, including

through the CQC and ADASS protocol.

20. The Local Government Ombudsman

should take steps to increase public

awareness of their role to investigate

complaints about home care from self-

funders.

21. The CQC should take steps to ensure

maximum awareness by care workers

of the protection available to whistle-

blowers under the Public Interest

Disclosure Act, and the CQC’s own role

in responding to whistleblowing alerts.

22. To ensure that threats to human rights

are detected as early as possible, the

CQC should take all available steps to

facilitate feedback by any reasonable

means from older people, their

families and others. CQC should

ensure that such intelligence is fed into

their compliance monitoring and early

warning risk assessments and acted

upon where risks to human rights are

indicated.

23. With support from the Social Care

Institute for Excellence and other

organisations such as UKHCA, home

care providers should share good

practice that embraces a human rights

approach to home care for older

people.

To address the status of home

care workers:

24. Skills for Care, the National Care

Forum, the UKHCA, the Social Care

Association, the English Community

Care Association, the Health

Professions Council, trade unions and

other partners should work together to

consider what steps will best enhance

the status and skills of care workers,

particularly those related to promoting

and protecting human rights.

25.The Commission strongly endorses

the recommendation of the Low Pay

Commission that commissioning

policies of local authorities should

reflect the actual costs of care,

including at the very least the

National Minimum Wage.

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Inquiry into older people and human rights in home care

Appendix 1: Glossary of

terms about home care

Advocacy supporting an individual to say/communicate

what they want, secure their rights and/or

services.

Assessment/needs assessment the assessment by a local authority of a person’s

need for community care services in order to

maintain their life at a certain standard. Local

authorities have a duty to assess any person in

their area who appears to need such services

(Section 47 NHS and Community Care Act

1990).

Block contract a contract which guarantees a certain amount

of business between the local authority and a

social care provider, e.g. a set amount of time,

in a particular location, for a set price.

Brokerage services support given to individuals to help them

identify what support package will best meet

their needs and preferences within available

resources, and organise and manage this

support. Brokerage services should be provided

by third parties other than the local authority,

and can include advocacy, organising a care

package and managing a personal budget

including staffing and pay-roll services.

Call cramming over-booking home care visits on a care

worker’s rota making it impossible for them

to spend the allotted time on each visit.

Care Quality Commission (CQC) the independent regulator of all health and

adult social care in England.

Carer a person who provides unpaid support to a

family member or friend who could not manage

otherwise.

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Carer’s assessment an assessment of the help needed by a carer

looking after a friend or relative to continue

caring and to help maintain the carer’s health

and balance within their life, work and family

commitments (Carers and Disabled Children

Act 2000).

Care worker a person employed to deliver home care by a

local authority, private agency or voluntary

sector organisation.

Commissioning authorising external providers to deliver

services on behalf of a public body. Local

authority commissioning of services involves a

strategic overview of the needs of the local

population, setting policies to decide how

those needs will be met in the most effective

and cost efficient way, procuring the services

and monitoring them to ensure that they meet

requirements.

Direct Payments a personal budget paid directly to a person (or

to a third party acting on their behalf) who

chooses to make their own care arrangements

by employing their own personal assistants

rather than receiving services provided by the

local authority.

Eligibility criteria criteria used by local authorities to determine

whether a person is eligible for services

provided by them. The government has issued

guidance to promote fairness and consistency

in the assessment process and each authority

sets its own eligibility criteria based on this

national guidance.

Home care help with personal care which may include

bathing, dressing and undressing, getting into

and out of bed or on and off the toilet,

preparing meals, taking medication,

housework, managing money, going to the

doctor, shopping, making phone calls, writing

letters and keeping in touch with family and

friends.

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Inquiry into older people and human rights in home care

Human Rights Act 1998 the statute which makes the European

Convention on Human Rights (ECHR) part of

our law. It requires public authorities to act

compatibly with the ECHR and allows

individuals whose human rights have been

infringed by a public authority to bring a case

in our own courts.

Human rights approach provides a legal and ethical framework,

underpinned by the HRA, which has been

shown as effective in raising standards in the

design and delivery of public services including

social care. This approach uses human rights

principles such as dignity and autonomy as the

starting point for clear expectations about the

treatment of service users – for example, zero

tolerance of abuse, respecting individuals,

supporting independence and control,

alleviating isolation and encouraging

complaints without fear of retribution. A

human rights approach can also assist staff

faced with difficult decisions involving

competing rights and interests.

Independent sector provider private sector, voluntary sector and social

enterprise home care agencies /organisations.

Local Adult Safeguarding Board Multi-agency partnership which provides

strategic leadership for the development of

safeguarding policy and practice relating to

adults at risk of harm.

Local Government Ombudsman looks at complaints about local authorities and

some other public authorities. It also examines

complaints about independent adult social

care providers, including providers of home

care services.

Managed account a personal budget managed by the local

authority in line with the wishes of the person

receiving home care, also known as a ‘virtual

budget’.

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Micro-employer an individual or very small local enterprise (no

more than five paid or unpaid full-time

equivalent workers) independent of any larger

or parent organisation.

Personal budget funding given to a person to meet their

assessed needs enabling them to choose and

control when and where they receive their

support, and who will provide it. A person can

choose to receive their personal budget as a

direct payment, a managed account, or a mix

of the two options.

Personalisation giving people more choice and control over

deciding how their social care needs are met

including through the use of personal budgets.

Also known as self-directed support.

Procurement the process of identifying and selecting a

provider, which may involve, for example,

competitive tendering.

Reviews formal re-evaluation of an individual’s

assessed risks, needs and personalised care

plan at an arranged time resulting in a decision

about any changes that might be necessary to a

care plan.

Safeguarding keeping individuals safe who may be at risk of

harm, including intervention in a particular

situation and prevention before a situation

develops.

Self-funder a person who pays entirely for their own care.

Social care the delivery of a range of personal care and

support services to individuals in their own

homes or in a care home.

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Inquiry into older people and human rights in home care

UN Convention on the Rights of

Persons with Disabilities (CRPD) an international treaty that identifies the rights

of persons with disabilities as well as the

obligations on states to promote, protect and

ensure these rights. Alongside civil and

political rights, CRPD contains social,

economic and cultural rights which states are

expected to progressively realise; these rights

have their origin in the International Covenant

on Economic, Social and Cultural Rights. The

CRPD was ratified by the UK in 2009.

UN Principles on the Rights

of Older Persons these principles, adopted by the UN General

Assembly in 1991, were designed to influence

and support national government programmes

for older people. The 18 principles are grouped

under five broad headings: independence,

participation, care, self-fulfillment and dignity.

Whistleblowing disclosure by an employee of genuine concerns

about crimes, illegality, negligence,

miscarriages of justice, or danger to health and

safety or the environment, when these have

been ignored or covered up by the employer or

by a fellow employee. Rights and protections

for whistleblowers are set out in the Public

Interest Disclosure Act 1998.

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1 Laing and Buisson (2011) Domiciliary Care, UK Market Report 2011. Laing and

Buisson: London. Tables 1.2 and 1.5. In 2009/10, 452,610 older people received

home care or home respite through their local authority and 91,625 received direct

payments, some of whom may have received home care. In contrast, 167,435 were

in a residential home and 81,670 in a nursing home.

2 Joint Committee on Human Rights (2007) Human Rights of Older People in

Healthcare. 18th Report of Session 2006-07. Volume 1, Report and Formal Minutes.

House of Lords and House of Commons. London: The Stationery Office.

3 Action on Elder Abuse (2007) Briefing Paper: The UK study of abuse and neglect of

older people. Available at: http://www.elderabuse.org.uk/AEA%20Services/

Useful%20downloads/Prevalence/Briefingpaperprevalence.pdf) and Community and

District Nursing Association: Ev64, evidence to the Health Select Committee Inquiry

on Elder Abuse. HC 111–11: London: The Stationery Office, March 2004.

4 Laing and Buisson (2011) Domiciliary Care UK Market Report 2011. London: Laing

and Buisson.

5 NHS Information Centre (2011) Community Care Statistics 2009-10. Social Services

Activity Report, England. Available at: http://www.ic.nhs.uk/webfiles/publications/

009_Social_Care/carestats0910asrfinal/Community_Care_Statistics_200910_Social

_Services_Activity_Report_England.pdf

6 Laing and Buisson (2011) Domiciliary Care UK Market Report 2011. London: Laing

and Buisson. Table 2.4.

7 Care Quality Commission (2011) The state of health care and adult social care in

England. Available at: http://www.cqc.org.uk/_db/_documents/

State_of_Care_final_-_tagged.pdf

8 NHS Information Centre (2011) Personal Social Services Expenditure and Unit costs

England, 2009-10. Available at: http://www.ic.nhs.uk/pubs/pss0910exp

9 Equality Act (2006) Sch 2 para 18 A person to whom a recommendation in the report

of an inquiry, investigation or assessment is addressed shall have regard to it.

10 NHS Continuing Healthcare (Responsibilities) Directions 2009.

11 See, in particular, the report of interviews with older people. Sykes, W. and Groom, C.

(2011) Older people’s experiences of home care in England. Manchester: Equality and

Human Rights Commission.

12 The CRPD includes: the right to equal access to facilities and services (Article 9);

equal recognition before the law, including safeguards for people who lack legal

capacity (Article 12); freedom from exploitation, violence and abuse (Article 16);

Endnotes

106

Inquiry into older people and human rights in home care

protection of the integrity of the person (Article 17); the right to live independently

and be included in the community (Article 19); the right to an adequate standard of

living and social protection (Article 28).

13 Adopted by the UN General Assembly in 1991, the 18 principles are grouped under

five broad headings: independence, participation, care, self-fulfillment and dignity.

14 In addition, the Local Government Act 1972 contains provisions that enable local

authorities to do things that facilitate the exercise of their express statutory functions.

15 YL v. Birmingham City Council [2007] UKHL 27.

16 S145 Health and Social Care Act 2008.

17 Department for Work and Pensions (2011) Family Resources Survey, UK 2009-10.

Available at: http://research.dwp.gov.uk/asd/frs/2009_10/frs_2009_10_report.pdf

18 These regulations are set out in the Health and Social Care Act 2008 (Regulated

Activities) Regulations 2010 and the Care Quality Commission (Registration)

Regulations 2009.

19 Hancock, R., Pickard, L., Wittenberg, R., Comas-Herrera, A., Juarez-Garcia, A., King,

D. and Malley, J. (2007) Paying For Long-Term Care for Older People in the UK:

Modelling the Costs and Distributional Effects of a Range of Options. Report to the

Nuffield Foundation. PSSRU Discussion Paper 2336/2. Available at:

http://www.pssru.ac.uk/pdf/dp2336_2.pdf

20 An additional 92,000 older people were in receipt of direct payments, some of whom

may also have been in receipt of home care but because of changes in recording it is

not possible to say how many were in this category.

21 NHS Information Centre (2011) Community Care Statistics 2009-10. Social Services

Activity Report, England. p.39. Available at: http://www.ic.nhs.uk/webfiles/

publications/009_Social_Care/carestats0910asrfinal/Community_Care_Statistics_2

00910_Social_Services_Activity_Report_England.pdf

22 See: ONS (2011) Ageing: Fastest increase in oldest old. Available at:

http://www.statistics.gov.uk/cci/nugget.asp?id=949 and

http://www.statistics.gov.uk/downloads/theme_population/

NPP2008/NatPopProj2008.pdf

23 Clough, R., Leamy, M., Miller, V. and Bright, L. (2004) Housing Decisions in Later

Life. Basingstoke: Palgrave Macmillan.

24 Equality and Human Rights Commission (2009) From safety net to springboard.

Manchester: Equality and Human Rights Commission. Available at:

http://www.equalityhumanrights.com/uploaded_files/safetynet_springboard.pdf`

25 NHS Information Centre (2010) Personal Social Services Expenditure and Unit Costs

England, 2008-09. Available at: http://www.ic.nhs.uk/pubs/pss0809exp. Due to

changes in reporting in 2009-10 it is not possible to provide more recent data.

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www.equalityhumanrights.com/homecareinquiry

26 Section 47 NHS and Community Care Act 1990. Under this provision, the local

authority has a duty to assess a person in need whether or not they actively request an

assessment.

27 Legislation relevant to provision of home care services to older people includes S29

National Assistance Act 1948, S45 Health Services and Public Health Act 1968 and S2

Chronically Sick and Disabled Persons Act 1970. Under the latter provision there is a

legal obligation to provide services for someone assessed as needing them.

28 Using local authorities decide on their own criteria, based on the Fair access to care

services ‘FACS’ guidance issued by the Department of Health. Available at:

http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicy

AndGuidance/DH_113154.

29 ADASS Budget Survey (2011) 15 per cent of local authorities offered home care to

people with ‘moderate’ needs,’ and only 3 per cent to those whose needs were ‘low’.

Available at: http://www.adass.org.uk/

index.php?option=com_content&view=article&id=732:adass-urges-government-to-

include-findings-of-the-commission-on-the-funding-of-care-and-support-in-its-

review-of-nhs-legislation&catid=146:press-releases-2011&Itemid=447

30 NHS Information Centre (2009) Community Care Statistics 2008, Home care

services for adults, England. p. 8. Available at: www.ic.nhs.uk/statistics-and-data-

collections/social-care/adult-social-care-information/community-care-statistics-

2008:-help-care-services-for-adults-england

31 UKHCA (2011) An overview of the UK Domiciliary Care Sector 2011. Available at:

http://www.ukhca.co.uk/pdfs/domiciliarycaresectoroverview.pdf#search="overviews

of uk domiciliary sector"

32 NHS Information Centre (2011) Personal Social Service Expenditure and Unit Costs

England 2009-10. p. 13.

33 Laing and Buisson (2011) Domiciliary Care, UK Market Report 2011. London: Laing

and Buisson.

34 Laing and Buisson (2011) Domiciliary Care, UK Market Report 2011. London: Laing

and Buisson. Tables 9.1 and 9.2.

35 Laing and Buisson (2011) Domiciliary Care, UK Market Report 2011. London: Laing

and Buisson.

36 See in particular the case of Pretty v. UK (2002).

37 See Gaskin v. UK (1990); Pretty v. UK (2002).

38 Irvine, Lord, oral evidence in response to Question 38. Evidence to Joint Committee

on Human Rights: implementation of the Human Rights Act 1998, 19 March 2001.

39 Joint Committee on Human Rights, Eighteenth Report of Session 2006-2007,

paragraph 137.

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Inquiry into older people and human rights in home care

40 See: www.dignityincare.org.uk

41 Available at: http://www.scottishhumanrights.com/careaboutrights

42 Care Quality Commission (2011) Dignity and nutrition for older people. Available at:

http://www.cqc.org.uk/reviewsandstudies/inspectionprogramme-

dignityandnutritionforolderpeople.cfm

43 Outcome 1, linked to Regulation 17 under Part 4 of the Health and Social Care Act

2008 (Regulated Activities) Regulations 2010.

44 See: Action on Hearing Loss, Facts and figures on hearing loss and tinnitus.

Available at: http://www.actiononhearingloss.org.uk/your-hearing/

about-deafness-and-hearing-loss/~/media/Files/Factsheets/

Deaf%20awareness/pdf/Facts%20and%20figures%20on%20deafness%20and%20ti

nnitus%20July%202011.ashx and RNIB, Key information and statistics. Available at:

http://www.rnib.org.uk/aboutus/Research/statistics/Pages/statistics.aspx

45 ONS (2011) Social Trends 41. Households and families. Available at:

http://www.ons.gov.uk/ons/rel/social-trends-rd/social-trends/2011/index.html

46 NHS Information Centre (2011) Community Care Statistics 2009-10. Social Services

Activity Report, England. Available at: http://www.ic.nhs.uk/webfiles/publications/

009_Social_Care/carestats0910asrfinal/

Community_Care_Statistics_200910_Social_Services_Activity_Report_

England.pdf

47 Equality and Human Rights Commission (2009) Human Rights Inquiry. Available

at: http://www.equalityhumanrights.com/uploaded_files/hri_report.pdf

48 See Section 1 Contracts (Rights of Third Parties) Act 1999.

49 These are protected characteristics that are protected under the Equality Act 2010.

50 Laing and Buisson (2011) Domiciliary Care, UK Market Report 2011. London: Laing

and Buisson.

51 Section 21 Equality Act 2010.

52 R v. Bristol City Council ex parte Penfold [1997-98] 1 CCLR 315.

53 The Carer’s (Recognition and Services) Act 1995 gives people aged 16 and over who

provide ‘substantial care on a regular basis’ the right to request an assessment from

social services.

54 Office for National Statistics (2011) Internet Access Quarterly Update Q2, Internet

users Q2 2011. UK data. Table 1. Available at: http://www.ons.gov.uk/ons/

publications/re-reference-tables.html?edition=tcm%3A77-226794

55 Clark, H., Gough, H. and Macfarlane, A. (2004) It pays dividends: direct payments

and older people. York: Joseph Rowntree Foundation.

56 Social Care Institute for Excellence (2010) Personalisation: a rough guide.

109

www.equalityhumanrights.com/homecareinquiry

57 Glendinning, C., Challis, D., Fernandez, J., Jacobs, S., Jones, K., Knapp, M.,

Manthorpe, J., Moran, N., Netten, A., Stevens, M. and Wilberforce, M. (2008)

Evaluation of the individual budgets pilot programme: final report. York: Social

Policy Research Unit, University of York. Available at:

http://www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@en/

documents/digitalasset/dh_089506.pdf

58 Care Quality Commission (2011) The state of health care and adult social care in

England. Available at: http://www.cqc.org.uk/_db/

_documents/State_of_Care_final_-_tagged.pdf

59 Hasler F., Campbell, J. and Zarb, G. (1999) Direct Routes to Independence: A Guide

to Local Authority Implementation and Management of Direct Payments. Policy

Studies Institute/Joseph Rowntree Foundation.

60 Mithran, S. (2009) Personalisation milestones. Community Care. Available at:

http://www.communitycare.co.uk/Articles/15/09/2009/112593/

Personalisation-milestones.htm

61 Airey v. Ireland (1979).

62 Equality and Human Rights Commission (2010) How fair is Britain? The First

Triennial Review. Manchester: Equality and Human Rights Commission. Available

at: http://www.equalityhumanrights.com/key-projects/how-fair-is-britain/full-

report-and-evidence-downloads/ See in particular Section 9.4, which presents

findings from the 2007 Citizenship Survey.

63 Forder, J. (2008) Costs of addressing age discrimination in social care. PSSRU

Discussion Paper 2538, p.27. Available at: http://www.pssru.ac.uk/pdf/dp2538.pdf

64 Forder, J. (2008) Costs of addressing age discrimination in social care. PSSRU

Discussion Paper 2538, p.18. Available at: http://www.pssru.ac.uk/pdf/dp2538.pdf

65 Glendinning, C., Challis, D., Fernandez, J., Jacobs, S., Jones, K., Knapp, M.,

Manthorpe, J., Moran, N., Netten, A., Stevens, M. and Wilberforce, M. (2008)

Evaluation of the individual budgets pilot programme: final report. York: Social

Policy Research Unit, University of York. Available at:

http://www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@en/docu

ments/digitalasset/dh_089506.pdf

66 Clark, H., Gough, H. and Macfarlane, A. (2004) It pays dividends: direct payments

and older people. York: Joseph Rowntree Foundation.

67 Age discrimination has been outlawed in employment since 2006.

68 Social Care Institute for Excellence (2010) Age equality and age discrimination in

social care: an interim practice guide.

69 UK Homecare Association (2011) Summary Paper – An overview of the UK

Domiciliary Care Sector September. Available at: http://www.ukhca.co.uk/pdfs/

domiciliarycaresectoroverview.pdf

110

Inquiry into older people and human rights in home care

70 Skills for Care (2010) The State of the Social Care Workforce 2010. Available at:

http://www.skillsforcare.org.uk/research/research_reports/

state_of_the_adult_social_care_workforce_reports.aspx

71 Rubery, J., Hebson, G., Grimshaw, D., Carroll, M., Smith, L., Marchington, L. and

Ugarte, S. (2010) The recruitment and retention of a care workforce for older people.

Manchester: The University of Manchester. Available at: http://www.kcl.ac.uk/sspp/

kpi/scwru/dhinitiative/projects/ruberyetal2011recruitmentfinal.pdf

72 Laing and Buisson (2011) Domiciliary Care UK Market Report 2011. London: Laing

and Buisson.

73 This figure is for workers aged 21 or over. There are lower rates for people under 21.

74 UNISON November 2011 Cuts in Social Care – the Impact on services and care jobs in

the UK – Chapter 9). The reduction or non-payment of travelling time between home

care visits, and workers being required to remain at home on call, contribute to these

unpaid hours – practices which Unison has found are increasing.

75 Low Pay Commission, April 2011: National Minimum Wage. Low Pay Commission

Report 2011.

76 Broadcast on 20 June 2011.

77 The NHS Information Centre (2009) Personal Social Services: Home care users in

England aged 65 and over, 2008-09 Survey. Available at: www.ic.nhs.uk

78 BIHR and AgeUK (2011) Older people and human rights: a reference guide for

professionals working with older people.

79 YL (by her litigation friend the Official Solicitor) v. Birmingham City Council and

others [2007] UKHL 27.

80 Section 145 Health and Social Care Act 2008.

81 NHS Information Centre (2011) Community Care Statistics 2009-10. Social Services

Activity Report, England. Available at: http://www.ic.nhs.uk/webfiles/publications/

009_Social_Care/carestats0910asrfinal/Community_Care_Statistics_200910_

Social_Services_Activity_Report_England.pdf

82 Laing and Buisson (2011) Domiciliary Care UK Market Report 2011. London: Laing

and Buisson. Table 2.4.

83 See, for example: House of Commons Debates: 16 February 1998, col 773 and 17 June

1998, cols 409-10.

84 Joint Committee on Human Rights: The meaning of public authority under the

Human Rights Act; Ninth report of session 2006-2007, paragraph 111.

85 R. (McDonald) v. Royal Borough of Kensington and Chelsea [2011] UKSC 33.

86 The Employment Equality (Age) Regulations 2006 have now been consolidated into

the Equality Act 2010.

87 The ‘objective justification’ test has two stages: first, does the policy/practice have a

legitimate aim – for example, ensuring the wellbeing and dignity of service users or

reducing health and safety risks? Second, is this aim being achieved proportionately

and using the least discrimination possible?

88 All providers and commissioners of NHS care are under a legal obligation to have

regard to the NHS constitution in all their decisions and actions. The constitution

includes seven key principles, the first of which states that the NHS has a duty to

respect individuals’ human rights.

89 Section 29 of the National Assistance Act 1948 lists the type of services that local

authorities have the power to provide. For home-based care, these powers are

complemented by Section 2 of the Chronically Sick and Disabled Persons Act 1970,

which sets out the types and range of services that should be available. A number of

other statutory sources are also relevant for older people receiving home-based care

from local authorities or the NHS. Most home-based care is means-tested, but certain

provisions, for example Section 117 of the Mental Health Act 1983 and NHS

Continuing Healthcare (Responsibilities) Directions 2009, require services to be

provided free of charge.

90 Law Commission (2011) Adult Social Care Recommendation 5(2).

91 Law Commission (2011) Adult Social Care Recommendation 6.

92 Law Commission (2011) Adult Social Care Recommendation 28.

111

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