Handle with care

“My elderly mother is struggling to cope on her own at home but she doesn’t want to move into a care home – what can we do?”

For many private client practitioners, this is a familiar question posed by clients. Many older people are anxious to avoid nursing homes. A lawyer can advise on things like the capital limits for care funding, dealing with any incapacity issues and putting in place lasting powers of attorney – but beyond that it is impractical to provide much further help on a cost-effective basis.
Yet it is surprisingly difficult for the clients themselves to navigate the system and understand their options and their rights. Even if care at home is found to be suitable, and arrangements made, the quality of care provided can be poor. A recent study has also found that the human rights of the older person are frequently at risk.

Helping out

In recent years, the way that home care has been provided by local authorities has changed enormously. Whereas a few years ago most care services were provided directly by the local authority, these days most home care is provided by private and voluntary services – either commissioned by the local authority to provide on its behalf, or contracted direct by the client, often using ‘self-directed’ local authority funding (according to research quoted in the report Close to home: An inquiry into older people and human rights in home care, Equality and Human Rights Commission (EHRC), November 2011, only two per cent of publicly funded home care was provided by the private and voluntary sectors in 1992, but by 2009/10 it was 84 per cent).

The benefits of home care are great. It helps older people to stay as independent as possible and avoids the trauma of leaving the familiar surroundings of home, friends and neighbours, to move to a care home. However, the demand for home care has led to a new market for care agencies and brokers, which is largely unregulated and unmonitored. Consequently, the risk to older people needing these services has increased significantly. Because home care takes place behind closed doors, it is difficult to monitor and consequently there is a real risk to the rights of the older person.

The EHRC carried out an inquiry into the extent that human rights are protected in the context of home care and to promote understanding and awareness of human rights. The EHRC’s report, Close to home, found that:?

• Many local authorities are failing to comply with their duty to promote awareness and understanding of human rights in this context.

• Inadequate provision of information and support makes it difficult for older people to make informed choices, and initial care assessment screening can often fail (a useful source of information is Age UK, which produces very user-friendly guidance notes – see www.ageuk.org.uk).

• The duties and responsibilities of care providers are unclear. Often, because of the way care at home is arranged, they fall outside the protection of the Human Rights Act. The report recommends that this loophole should be closed so that home care is fully covered.

• There are many examples of very poor home care – for example, neglect, lack of respect for the older person’s dignity and privacy, failure to pay attention to their views and choices, and isolation.

• The underlying causes of poor care practices are due to a failure to approach care from the perspective of human rights. Many of the problems could be remedied if local authorities placed more emphasis on human rights when commissioning and monitoring care services. The report recommends that clear guidance should be given to local authorities to assist them to improve the commissioning process.

• Care service commissioning practices vary between local authorities, with some placing more emphasis on human rights than others.

• Age discrimination is a key factor.

• Investment in care workers is inadequate, with little training, remuneration or status.

• Failures in complaints mechanisms and monitoring mean that poor care frequently goes unnoticed. The report recommends improved advocacy, monitoring and complaints procedures.

Purse strings

These are all serious issues that need to be addressed and remedied. Clearly funding is a problem – there is only so much time that an overworked carer can give to each client. The report found that in many cases the problems can be remedied without significant additional financial cost. However, it seems unlikely that the problems can be addressed fully unless local authorities are prepared to pay more. The report criticises local authorities whose commissioning structure is cost-driven (when the emphasis should be on protecting human rights). However, with budgets already stretched, realistically, there may be little that can be done.

Private individuals are less likely to be driven by cost, with quality of care often being the primary concern. Nonetheless many cannot afford to pay more.

The EHRC’s report and recommendations will form part of a wider review of social care in the UK, expected to culminate in significant reforms over the coming years. With an ageing population, the problems will only get worse unless they are properly addressed. As a private client adviser, one can only hope that the answer to the question posed at the start of this article will become simpler and more satisfactory as a result.

Penny Wright is a senior associate at Manches

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