Lords to rule on care home rights

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A legal battle to decide if people in privately-run care homes should be protected by human rights laws is to go to the House of Lords.

Three appeal judges have ruled private care homes cannot be classified as public bodies, even when they look after patients from local authorities.

But they agreed the two cases they heard should be referred to Lords because of their public importance.

Up to 300,000 residents in England could be affected by the outcome.

Campaigners say the law needs to be changed to prevent elderly couples being separated, or homes closed without the consent of vulnerable residents.

The Human Rights Act is applied to care homes run by local authorities, but not to homes in the private or voluntary sector.

That is despite the fact that around 300,000 people in private homes have their care paid for out of taxpayer's money.

Havering case

The first case considered by the Court of Appeal involved residents of a local authority care home in the London Borough of Havering who were under threat of being moved to a privately-run home.

If there is a concern that protection is not always effective then that must be a failure of the inspection process rather than the existing legislation Sheila ScottNational Care Association

They wanted a declaration that the Human Rights Act applied to private care homes.

They also wanted an alternative ruling that if the HRA did not apply, then their local authority would be acting unlawfully if it transferred them to one.

The Court of Appeal rejected this argument.

Lord Justice Buxton, giving the lead judgment of the court, said that if a change from public to private provision entailed a breach of human rights that would mean that any privatisation of services where the government has European Convention responsibilities would also be a breach.

He said that would "at a stroke" put every local authority with social services responsibilities in breach of the Human Rights Act, since all of them use some private sector provision.

Alzheimer's patient

In the second case, the judges were asked to rule that an 83-year-old Alzheimer's patient can stay in her private care home because to move her would violate her human right to family life.

The patient, identified only as YL, has lived at the care home since January last year when she was placed there by her local authority, Birmingham City Council.

The care home, which cannot be named for legal reasons, is run by Southern Cross Health Care, a private sector provider of residential and nursing services, which wants to remove the woman because of disagreements with her relatives.

Again, the judges were effectively asked, but declined, to rule that a private care home carries out the duties of a public body.

However the Law Lords did say that such concerns, raised by both cases, could go to the House of Lords.

Sheila Scott, National Care Association chief executive, welcomed the Court of Appeal decision to reject the complainants' arguments.

She said: "Care home residents rights are fully protected already under existing legislation.

"If there is a concern that protection is not always effective then that must be a failure of the inspection process rather than the existing legislation."