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Partly closed loophole


As the case of YL v Birmingham has been the subject of some comment on Nearly Legal I thought that readers may be interested to know that the Health and Social Care Act 2008 (Commencement No. 4) Order 2008 SI 2008/2994 has brought s. 145 of the Health and Social Care Act 2008 into force.  Section 145 is designed to close part of the YL loophole:

145 Human Rights Act 1998: provision of certain social care to be public function

(1) A person (“P”) who provides accommodation, together with nursing or personal care, in a care home for an individual under arrangements made with P under the relevant statutory provisions is to be taken for the purposes of subsection (3)(b) of section 6 of the Human Rights Act 1998 (c. 42) (acts of public authorities) to be exercising a function of a public nature in doing so.
(2) The “relevant statutory provisions” are—
(a) in relation to England and Wales, sections 21(1)(a) and 26 of the National Assistance Act 1948 (c. 29),

(Full text of s. 145 available from OPSI)

There is an exception for certain small care homes in Wales that are covered by Regulation 46 of the Care Homes (Wales) Regulations 2002.  I don’t think that there are many of those, but maybe a reader more familiar with the Welsh position can shed some light on this.

It’s fair to say that opinion is divided on the merits of this as it clearly leaves a whole lot more correcting to be carried out.  I am of the opinion that it is better than nothing, but I know that others think that the discrepancy between residents in the same home who happen to be funded differently can not be justified.  My hope would be that any care home that had both self funders and publicly funded residents would be conscious of the need to apply human rights principles and would see no merit to treat residents any differently.  Therefore both sets will benefit.  This is probably the dictionary definition of “naive”.

Of course this doesn’t do anything to help clarify the situation in cases such as Weaver.  In my view, the forthcoming Equality Bill presents an opportunity to sort out the whole mess of public bodies and functions, but there doesn’t appear to be much political desire or will to accomplish this.

chief is a barrister in the big city. he specialises in public law, landlord & tenant, football and rock 'n' roll (the last two are only when his clerks aren't watching). he sometimes pops by here, but not as often as he'd like. he will occasionally eschew capital letters. the reasons for this odd affectation are lost in the mists of time.



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