Focus: Policy and Politics - Equality - Concern grows over rights loophole

Nathalie Thomas

Government refuses to use the Equality Bill to resolve the issue.

The Government has refused to bow to pressure from voluntary bodies to close a legal loophole that the sector believes leaves mainly vulnerable people without protection under the Human Rights Act.

The loophole was created by a court case involving disability charity Leonard Cheshire in 2002. This excluded voluntary and private sector providers from the definition of a 'public authority' under the 1998 Act.

Charities believe this ruling disproportionately affects older disabled people and disadvantaged children who receive services from such providers.

The Government has said it would prefer to resolve the issue through case law, despite the attempts of Age Concern and Help the Aged to secure amendments to the Equality Bill, which faced its remaining stages in Parliament yesterday.

The Government's stance has left the sector dismayed about the time it will take to fix the loophole. "If a case turns up tomorrow, legally speaking, that would be the best way of doing it," said Kate Jopling, parliamentary officer at Help the Aged. "The problem is, that case may never come - we could be waiting forever."

Age Concern believes it is also possible that a case might not resolve the issue. Although the Government could issue guidance, a judge would be under no obligation to follow its recommendations.

"There is no guarantee of a favourable outcome," said Gordon Lishman, director general of Age Concern England.

The charities' argument is supported by the British Institute of Human Rights, which launched an inquiry into the implications of the Leonard Cheshire case in 2002.

Katie Ghose, director of the institute, said: "Human rights belong to everyone, yet many older disabled people and children are denied the protection of the Human Rights Act simply because of a legal loophole. The Government should take urgent action to extend the protection of the law to these groups."

Help the Aged is now pushing for an amendment to the Care Standards Act, which would at least resolve the issue in care homes. The sector is also awaiting the results of the Department of Trade and Industry's continuing discriminatory law review, during which the Government has committed itself to re-examine the loophole alongside other equality legislation. A third option is an amendment to the Human Rights Act.

No statistics exist showing how frequently cases arise in which people not covered by the Human Rights Act have had their human rights violated.

According to Help the Aged, however, 90 per cent of care homes and 60 per cent of domiciliary services for older people are now in the hands of voluntary or private sector suppliers, leaving their residents unprotected by human rights law.

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