Contract disputes: tips, tactics and knowing your rights
Jun 21 2022
This seminar aims to guide local authority lawyers through some of those pitfalls to provide tips for managing a contract disputeRead More
Local authorities should change how they commission home care, and in particular ensure that workers are paid the minimum wage, the Equality and Human Rights Commission (EHRC) has advised.
The EHRC first published its Close to Home report in 2011 which made recommendations to local authorities in relation to their home care commissioning. On 8 October 2013 it published its review as to how local authorities have responded to the 2011 report.
The latest report warns that the way care is currently commissioned is unsustainable, leading to inadequate pay, poor working conditions for care workers and increasing threats to older people’s human rights.
The 2011 report presented the EHRC's findings and recommendations following a year-long formal inquiry into the human rights of older people in England wanting or receiving home care.
In that report, the EHRC recommended that local authorities should review their home care commissioning policies and practices so that older people’s human rights would be better protected and promoted.
At a minimum, local authorities were asked to review:
The 2011 report also recommended that local authorities take three actions to include human rights into their home care commissioning practices:
The 2013 Close to Home review, just published, followed an on-line survey sent to 152 local authorities that commission home care. Two-thirds of the local authorities asked to take part in the online survey responded. Those responses revealed that only a small number of local authorities are implementing a systematic human rights based approach to the way in which they assess, commission and monitor care services. It found that these local authorities appear to have done the most to put the Close to Home recommendations into practice and human rights at the heart of what they do.
This report found that, on the whole, local authorities were unable to make significant improvements to the conditions of care workers. Very low pay, together with highly pressured working conditions and a lack of support were found to exacerbate the high turnover of staff, making care users more vulnerable to neglectful or abusive treatment.
The ECHR found that only a third of local authorities had taken action to deliver human rights training for elected members and, where this was being delivered, there was little evidence about whether it was compulsory.
The ECHR was disappointed to find that only 23 local authorities had included a 'third party rights' clause to allow care users to seek legal redress against the home care provider if human rights are breached.
Although the EHRC recognised the severe financial pressures that local authorities face, it found that the rates that some local authorities pay do not appear to cover even the actual costs of delivering the care provided. Many care workers are not paid for travel time or the time between visits, which means that they could be working for less than the legal minimum wage.
The review found that while local authority budgets represent a constraint on improving contract values, some local authorities have been able to take innovative action in partnership with home care providers and older people to improve how they deliver care.
However, the review concluded that until home care commissioning practices recognise the real cost of care and the need to protect human rights, and implement in full all of the Close to Home recommendations, threats to human rights seem likely to continue.
The EHRC is now calling for all contracts commissioning home care to include a requirement that care workers are paid at least the National Minimum Wage, including payment for travel time and costs. Local authorities should be transparent and set out how the rates they pay cover the costs of safe and legal care, with cost models published on their websites. When councils are reviewing their contracts, or when they are entering into new contracts, they should be considering the implications of the report and try to ensure that the contract terms are satisfactory in relation to the Human Rights Act 1998 (HRA), as well as to other legislation.
The EHRC will be writing to all local authorities advising of their findings and promoting their published guidance on human rights for commissioners of home care. Local authorities are strongly advised to read and consider this guidance, in light of the review findings.
The aim of the guidance is to to help local authority elected members and staff who are involved in the commissioning and procurement of home care better understand their obligations under the HRA. It delivers five key messages in relation to the HRA:
The ECHR has also said that it will convene a round table with stakeholders to discuss ways of promoting commissioning practices that most effectively support payment of at least the National Minimum Wage to home care workers.
With responses from local authorities showing age bias in Resource Allocation and care planning, the ECHR has started to discuss its findings with the Department of Health to assist in assessing compliance with age discrimination legislation in relation to the provision of health and social care services.
In the same week as the EHRC report was published, Leonard Cheshire Disability (LCD) issued their report Ending 15-Minute Care. This report highlights LCD's findings that 15 minutes is the standard length of care visits which 60 per cent of local authorities now commission, but this is not sufficient to provide care in the home to disabled or older people.
LCD's report reveals that the public overwhelming opposes 15
minute care visits. LCD hopes that their campaign will result in
amendments to the Care Bill which is currently going through
Parliament, to provide a statutory minimum length for care