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HUMAN RIGHTS WRANGLE OVER CONTRACTED-OUT CARE HOMES

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The Disability Rights Commission is considering supporting an appeal by the residents of a care home to the Court o...
The Disability Rights Commission is considering supporting an appeal by the residents of a care home to the Court of Appeal after they lost a key human rights case in the High Court.

The DRC intervened in the case of Johnson and others v London Borough of Havering to 'highlight the lack of human rights protection open to disabled people in private care homes'.

Summary of outcome of case

The judgment held that a private care home providing accommodation to elderly residents, after these services had been 'contracted out' from a local authority, would not be providing a public function under the terms of section 6(3)(b) of the Human Rights Act (HRA) 1998, and were therefore not bound by the act.

Havering, which owns and controls the care homes in which Mrs Johnson and two other claimants reside, had taken a decision to transfer residential care homes to a private sector provider.

Bert Massie, chairman of the DRC, said: 'Those in care homes are often in the most vulnerable positions in society. They have a particularly acute need for the protections of the Human Rights Act, most notably the right to life, the right to be protected from inhuman or degrading treatment and the right to respect for their private and family life. As rates of disability increase with age, the issues raised in this case are of key importance for disabled people both now and in the future.'

In the High Court, Mr Justice Forbes concluded that he was bound by the Court of Appeal ruling in R v Leonard Cheshire Foundation (LCF). In that case, the court rejected the argument that the provision of accommodation by LCF (in accordance with arrangements made with various local authorities) was a public function. The DRC is considering supporting the claimants' application for leave to appeal.

The decision that the High Court is bound by the Court of Appeal in the Leonard Cheshire case 'demonstrates clearly that current case law needs to change,' the DRC said.

Mr Massie added: 'This is a whole area where disabled people's rights are either blurred or non-existent. We support improved rights to independent living and Lord Ashley is introducing a bill in the Lords which would provide vital rights for disabled people to be able to live in their own homes with the correct amount of support services and the right to not enter residential care if they don't want to. For those already in residential care this judgment has failed to clarify whether they have true protection under human rights legislation.'

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