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05.Mar.2012

Many public authorities have a good track record in using human rights principles to protect the public but more could be done to tackle issues such as the abuse of vulnerable people in care, the lack of caravan sites for Gypsies and Travellers, and patchy protection of the right to a private life, the Equality and Human Rights Commission has said.

In the second report as part of its How Fair is Britain? series, intended to assess how well the country meets its human rights obligations, the EHRC warned that some groups which are socially marginalised or vulnerable did not receive full protection of their rights.

The Commission set out ten areas where it considered that legislation, institutions, policy or services could protect human rights more fully:

1. Health and social care
2. Children in the justice system
3. Police custody and prisons – support for vulnerable adults
4. Investigations into deaths in custody
5. Legal aid provisions
6. Protection of the right to a private life
7. Human rights of some groups
8. Counter-terrorism and public order legislation
9. Torture allegations
10. Immigration procedures and detention

More detail on these areas is set out below.

The Commission called for the core principles of human rights – dignity, equality and respect for everyone – to receive more emphasis. It insisted that the evidence showed that where public bodies take human rights seriously, people are treated better.

Geraldine Van Bueren, Commissioner at the Equality and Human Rights Commission, said: “Britain has a long and passionate commitment to human rights. Because of this commitment, most people in Britain can live their lives as they wish to, free from government control or interference. However, we cannot take our rights for granted.

“All of us benefit from human rights because these improve our daily lives. Human rights should not only get our attention when people we might not like try to use these rights. Nor should the value of human rights be limited to when we see what happens to people in other countries when these rights do not exist.”

The report can be downloaded here.

The EHRC's areas for improvement

Health and social care

The EHRC said that health and social care commissioners and service providers “do not always understand their human rights obligations and the regulator’s approach is not always effective in identifying and preventing human rights abuses”.

The watchdog argued that some vulnerable users of health and social care services – such as older or disabled people – experience poor treatment “which is undignified and humiliating”.

The EHRC added that the reason for this could lie partly with the scope of the HRA and agencies’ poor understanding of their responsibilities under the Act.

It pointed to its recent inquiry into home care which showed that many local authorities and primary care trusts have a poor understanding of their positive obligations under the HRA, and do not include human rights in the commissioning criteria around the quality and delivery of care.

“Frontline staff also do not make the link between human rights and the care they provide, and their lack of awareness can lead to abuse and neglect of patients,” the Commission said.

The EHRC also questioned the effectiveness of inspections by the Care Quality Commission, whose approach has “sometimes failed to identify and prevent abuses of human rights”.

Another issue is that service users do not know how to make complaints, or do not do so, as they fear this might adversely affect their care.

Children in the justice system

“The justice system sometimes does not prioritise the best interests of the child,” the EHRC said.

The watchdog added that children would not receive a fair trial if they do not understand the gravity of charges against them or are unable to participate in court procedures. It said in particular that children with learning or communication difficulties often do not receive sufficient ‘special measures’ to ensure a fair trial.

The report also claimed that the juvenile secure estate “resorts too easily to control and restraint procedures for discipline”.

Police custody and prisons – support for vulnerable adults

According to the Commission, police custody and prisons do not always have sufficient safeguards and support when dealing with vulnerable adults. This meant that the government risked not complying with its obligation under Article 2 of the European Convention on Human Rights to safeguard the lives of those in its care.

The EHRC argued that some prisons did not meet the mental health needs of prisoners as policies to prevent suicide and self-harm “were not consistently implemented, and care plans were poorly co-ordinated”.

Unsafe use of restraint remained a problem across all forms of detention, it added. This had led to cases where restraint had led to the death of a prisoner.

Investigations into deaths in custody

“Investigations into deaths of people under protection of the state are not always independent, prompt or public, potentially breaching right to life investigative requirements,” the EHRC said.

The review found that Britain’s investigative frameworks did not always meet requirements. Ofsted and local safeguarding children boards are obliged to carry out a review following any unexpected death of a child or young person in a secure children’s home.

“Such a review does not meet Article 2 requirements as it does not establish the cause of death, involve the family, is not carried out in public and is not institutionally independent,” the Commission said.

The watchdog also pointed out that there is no single person or agency automatically responsible for investigating deaths of patients in mental health settings.

“To meet Article 2 requirements, an inquest may need information that is obtained from an independent investigation immediately after the death,” the EHRC said.

“Investigations by strategic health authorities may not meet this requirement and the coronial system is not sufficiently responsive or properly resourced to undertake effective investigations. The Article 2 safeguarding duty should also cover mental health patients who are not formally detained.

Legal aid provision

The EHRC said providing a system of legal aid was a significant part of how Britain met its obligations to protect the right to a free trial and the right to liberty and security, adding that changes ran the risk of weakening this.

It also warned amongst other things that the current fixed fees system for social welfare cases created incentives for lawyers and advisers to choose more straightforward cases. “This means that people with complicated or unusual cases may be less likely to receive high quality advice,” the Commission claimed.

Protection of the right to a private life

The legislative and regulatory framework does not offer sufficient protection of the right to a private life and for balancing the right to a private life with other rights, the watchdog said.

It described the protection provided by the Data Protection Act 1998 and the Regulation of Investigatory Powers Act 2000 (RIPA) as “patchy”.

“Definitions of ‘personal data’ which are central to DPA are not clear; and RIPA has not responded effectively to technological changes which enable more extensive surveillance of individuals,” the Commission said.

The EHRC also warned that the Information Commissioner’s Office did not have adequate resources to carry out its functions effectively and there was insufficient judicial oversight of RIPA and surveillance regulations.

Human rights of some groups

The review suggested that some groups which are socially marginalised or particularly vulnerable did not enjoy full protection of their rights.

The EHRC cited a number of examples:

• Local authorities, police or social services sometimes failed to fulfil their positive obligation to intervene in cases of children, disabled people, and women at risk of domestic violence;
• Police sometimes failed to take seriously allegations of repeated violence that were so severe the allegations reached the threshold for inhuman and degrading treatment under Article 3;
• Local agencies sometimes failed to work together effectively, and in some cases this had led to the death of a child or disabled person;
• Ethnic minority groups were more likely to be subject to stop and search and counter-terrorism legislation, and have their details recorded on the National DNA Database;
• The rights of Gypsies and Travellers were sometimes overlooked. “Gypsy and Traveller communities face a shortage of caravan sites as some local authorities have failed to invest in site development,” the EHRC said. “The lack of sufficient sites means it is difficult for Gypsies and Travellers to practice their traditional way of life”;
• Individuals who are transsexual and whose gender identity does not match their birth gender are not protected by current laws around marriage and civil partnership;
• Although Britain has a positive record in developing the legal and administrative infrastructure to tackle trafficking, victims may still be criminalised or sent to immigration detention centres. “In some cases trafficked children have been sent to adult prisons when charged with offences, or incorrect age assessments have meant that they have not been offered the support and protection due every child”;
• Evidence suggests that measures to curb the activities of gangmasters are not adequate to protect migrant workers, and proposed changes to the visa requirements for migrant domestic workers may lead to Article 4 breaches. The number of prosecutions and convictions for slavery, trafficking and forced labour are low.

Counter-terrorism and public order legislation

According to the EHRC, counter-terrorism and public order legislation designed to protect everyone can risk undermining several human rights.

The watchdog said there were problems with the interpretation and implementation of counter-terrorism legislation domestically, and with Britain’s international counter-terrorism activities. It criticised the impact of counter-terrorism legislation on legitimate expression of politcial views and gatherings, with the definition of terrorism “still too broad”.

Torture allegations

“Allegations of involvement and complicity in torture in overseas territories, and the government’s failure so far to carry out an independent inquiry into these allegations, risk breaching Article 3,” the EHRC said.

Immigration procedures and detention

The watchdog claimed that immigration procedures can favour administrative convenience over safeguarding individuals’ rights to liberty and security. “Periods in detention can be unlawful if release or removal is not imminent,” it said.

Philip Hoult

Details

02.Mar.2012

Government reforms to benefits and services risk leaving disabled people without the support they need to live independently, a Parliamentary committee has warned.

The Joint Committee on Human Rights warned that restrictions in local authority eligibility criteria for social care support, the replacement of the Disability Living Allowance with Personal Independence Payment, the closure of the Independent Living Fund and changes to housing benefit “risk interacting in a particularly harmful way” for disabled people.

“Some people fear that the cumulative impact of these changes will force them out of their homes and local communities and into residential care,” the JCHR report, Implementation of the Right of Disabled People to Independent Living, said.

The MPs and peers called on the government to examine whether the right to independent living should be established as a freestanding right in UK law.

The committee said the right is currently protected and promoted to some extent by a matrix of rights, but argued that this was not enough.

The report concluded that the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) – Article 19 of which enshrines the right of disabled people to independent living – was hard law, and urged the government to fulfil its obligations on that basis and “counter any public perception that it is soft law”.

The JCHR report also called on ministers to conduct an assessment of the cumulative impact of its current reforms on disabled people, and report on the extent to which they enabled government and local authorities to comply with their obligations under the UNCRPD.

The committee meanwhile criticised changes to the duties of public authorities in England under the Equality Act 2010, which it said no longer required the production of equality impact assessments of changes in policy, nor the involvement of disabled people in developing policies which will affect them.

Other key findings in the report included:

• The Government needed to take further action to ensure that assessments for care needs are portable across the country. This was to ensure disabled people’s right to choose their place of residence;
• A growing incidence of hate crime against disabled people. The report urged the Government to take action to foster respect for the rights and dignity of disabled people;
• There were variations in the manner in which the devolved administrations have implemented the UNCRPD, and uncertainty as to the role the UK Government should play in ensuring implementation;
• There was a “disappointing” lack of a strategy in Northern Ireland to promote independent living. The UK Government needed to acknowledge its responsibility to ensure implementation.

JCHR chairman, Dr Hywel Francis MP, said: "We are concerned to learn that the right of disabled people to independent living may be at risk through the cumulative impact of current reforms. Even though the UK ratified the UNCPRD in 2009 with cross-party support, the Government is unable to demonstrate that sufficient regard has been paid to the Convention in the development of policy with direct relevance to the lives of disabled people.

“The right to independent living in UK law may need to be strengthened further, and we call on the Government and other interested organisations to consider the need for a freestanding right to independent living in UK law."

A copy of the JCHR report can be viewed here.

Details

29.Feb.2012

The Official Solicitor has sought to “correct some misconceptions” and clarify what he meant when he wrote to the President of the Court of Protection last December to say that he had reached the limit of his resources with regard to welfare cases.

In a note on acceptance of appointments as litigation friend in CoP healthcare and welfare cases – published on the Ministry of Justice website – the Official Solicitor said he “did not mean by this that he had run out of money, but rather that his available staff, (after movement of staff to this area of work and recruitment to the full extent which was possible), to manage this class of case were unable to take on any more of these cases”.

The effect of this development is that that the Official Solicitor is unable to accept invitations to act in any except the most urgent cases, namely serious medical treatment cases and section 21A appeals, other than those brought by the relevant person's representative.

The note adds that Section 21A appeals “may nevertheless be subject to a delay in acceptance until a case manager becomes available to whom the case may be allocated”.

All other cases, once the Official Solicitor’s longstanding acceptance criteria are met, will be placed on a waiting list.

“These cases will be accepted, when a case manager becomes available, in chronological order starting with the earliest placed on the list, unless exceptional priority is given due to this office considering the case to be very urgent or should otherwise be expedited,” the note said.

It also called on the courts, in the event that they are of the view that a case should be considered as most urgent, or should be expedited for other reasons, to inform the senior lawyers in the Official Solicitor’s CoP Healthcare and Welfare teams, of the court’s reasons. Consideration will be given on individual merit, the Official Solicitor said.

“If at any time another litigation friend is appointed in this case before the Official Solicitor is in a position to accept the invitation the parties are asked to notify him as soon as possible, so that the file may be closed and the case removed from the waiting list,” the note added.

The Official Solicitor also said:

• Pre-acceptance: In order to avoid any unnecessary delay, he will at this stage make his initial enquiries to establish whether or not the case is one where his acceptance criteria are met, and, in principle, he would be willing to act. In order to enable those enquiries to be made the court may be invited to make an order for disclosure of financial information relating to P, the protected party or child.
• Acceptance: When the Official Solicitor is able to accept the case, the applicant will be contacted in order to establish whether or not P, the protected party or child remains a party, and whether the case remains a last resort case.

The note can be downloaded here.

Details

28.Feb.2012

Fewer than one in seven local authorities have used legal powers available to recoup money where individuals have deliberately deprived themselves of assets to avoid paying care fees, a BBC report has claimed.

A freedom of information request by 5 Live Investigates revealed that 16 out of 121 local authorities had used the powers.

Financial advisers criticised local authorities for this inconsistency in approach.

George Hodgson, deputy chief executive of The Society of Trust and Estate Practitioners, told the programme: “The huge variation between local authorities means the first question advisers are asking is: where do you live?

“There's no confidence that the rules, as written down, will be applied consistently. It's not just the local authorities, the government needs to come to a clear position on what it's going to do about this problem."

But Peter Hay, president of the Association of Directors of Adult Social Services, pointed out that it was hard to prove in court that a person deliberately intended to deprive themselves of assets. He also said that the costs of legal action could turn out to be higher than the sums recovered.

The 5 live investigates podcast can be downloaded here.

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28.Feb.2012

A local authority in Wales has successfully defended a High Court challenge to the rates it set for care home providers for 2011/12.

Neath Port Talbot County Borough Council’s success this month comes as Devon County Council became the latest authority to face legal action over its fee-setting, with a group of four care home operators given permission to bring judicial review proceedings.

In previous cases Pembrokeshire County Council has lost twice – the first time against its original decision and the second over the re-taken decision. Sefton Council and Leicestershire County Council also lost high-profile cases in November and December 2011 respectively.

In Bevan & Clarke LLP & Ors v Neath Port Talbot County Borough Council [2012] EWHC 236, nine operators of residential homes sought a judicial review of Neath Port Talbot’s decision to pay £426 per resident per week with a £23 supplement per week for residents with dementia.

The sums amounted to an increase of 5.7%. The council had also decided to offer to enter into a four-year agreement with providers with a minimum guaranteed increase of 4% each year.

The claimants argued that Neath Port Talbot had unlawfully failed to set a rate which reflected their costs in providing care, and the need, given projected requirements for provision by private care homes, for the sector to be sustainable.

Counsel for the nine operators also argued that:

• the authority had failed to take account in a number of ways of the Commissioning Guidance issued by the Welsh Assembly Government; and
• the decision of 25 March 2011 was procedurally unfair because the council had relied on the absence of long-term business plans by the claimants, when such plans (a) were only first mentioned shortly before the decision and (b) were mentioned in circumstances which did not inform the claimants of their importance for the decision for 2011/12.

Neath Port Talbot argued that its decision clearly recognised the need to maintain the care home sector. The authority also suggested that the challenge was a disguised attack on the merits of the decision or on the weight given to various factors, and that neither of these were the province of a court exercising its supervisory function by way of judicial review.

The local authority’s counsel, Elisabeth Laing QC, argued that its function of setting a fee under its contracts with providers was a private function and not amenable to judicial review. She also submitted that there had been undue delay, with the claimants lodging proceedings one day short of the three-month period from the date of the decision.

Mr Justice Beatson concluded that the council’s decision was amenable to judicial review and he would not have refused relief on the grounds of delay.

However, the High Court judge rejected a range of the claimants' submissions and found that Neath Port Talbot’s decision was not unlawful.

In relation to the suggestion that Neath Port Talbot's approach was not underpinned by a methodology or a lawful rationale, for example, the judge found that the authority had taken account of the information it had about providers' costs, decided the budgeted figure for care, and recommended increases for four years.

Mr Justice Beatson also pointed out that the council considered standards and the increases in capapcity by some providers. "That it did so showed that the council sought to understand the costs of care services and was acting to promote service sustainability in accordance with Standard 10 of the Commissioning Guidance. This was not straightforward. One of the problems identified by the council....was that not enough providers had responded to surveys about costs."

Leader of Neath Port Talbot, Cllr Ali Thomas said: “Supporting vulnerable people is a key priority for the council and this judgment is welcome confirmation that we have been reasonable in setting the fees we pay to care homes. In addition, the decision has endorsed our approach to sustaining the care sector through our four-year fee setting strategy.

“We have all faced economic pressures in recent years, and this has been a particular challenge for social services. Last year we reinforced our commitment to the care home sector by increasing payments by 5.7% at a time of acute pressure on our finances. It is now time to move forward. We want to work with care home providers to ensure that older people in Neath Port Talbot receive high quality care.”

Philip Hoult

Details

27.Feb.2012

Kent County Council has withdrawn its decision to terminate the grant of a social enterprise staffed by former employees.

Local Government Lawyer revealed earlier this month that Project Salus had issued judicial review proceedings over the decision.

The community interest company (CIC) alleged that the local authority had breached the public sector equality duty and failed to consult service-users.

Its lawyers, Pierce Glynn, said Project Salus’ employees had been encouraged to leave their jobs with Kent on the back of the authority’s decision to provide the company with a three-year grant.

In December 2011, just six months after the launch of the social enterprise, Kent announced that it would terminate the grant.

However, Kent has now handed Project Salus – which provides services to children and young people in the county – a reprieve.

In a joint statement, Kent County Council’s Leader, Paul Carter, and Project Salus directors Sally Williamson and Peter Heckel said: "Both Project Salus and Kent County Council are pleased to confirm that any issues in our contract have now been resolved amicably and the judicial review claim has now been withdrawn. We are looking forward to working together in the future."