Home care cuts in Scotland during pandemic are potentially unlawful, warns human rights watchdog

Disabled and older people have been left to sleep in wheelchairs – or been unable to get out of bed, wash or dress themselves – due to the cuts, it said.

The Scottish Government said the the cuts to home care packages were unacceptable.

A "considerable proportion" of people who use social care support at home have experienced either a reduction or complete withdrawal of support during the pandemic.

Registering “deep concerns”, the commission has called for social care to be re-instated to pre-covid levels “as a minimum”.

But it also details how the removal of care plans during COVID-19 has had a direct and detrimental effect on people’s rights, including potential unlawful interferences and non-compliance with rights contained in the European Convention on Human Rights and the United Nations Convention on the Rights of Persons with Disabilities.

Rights affected include people’s rights to physical and psychological integrity, private and family life, and to independent living in the community.

The concerns emerged after the Herald revealed how the nation's leading care body raised concerns of an "invisible pandemic" hitting older people and the disabled after lockdown restrictions meant support packages were withdrawn.

READ MORE: Thousands of Scotland's most vulnerable hit by "invisible pandemic" of coronavirus homecare failings

Thousands of vulnerable Scots have been left without vital home care since lockdown due to service cuts and families fearful of the coronavirus spreading.

The umbrella group of 400 social care organisations said there was a crisis in home care, as tens of thousands of packages of support were withdrawn at the start of the pandemic with many not restored.

They say it was in part caused by local authorities and health board partnerships seeking to prioritise resource and in part by families who feared that staff going from home to home would bring in the virus.

Fern Adams, 26, who lost their home-care support during the early stages of the lockdown says she has lost her independence having had to move from her Clydebank flat to her mother's home in Oban, a two-hour drive away.

The 26-year-old, who has complex medical conditions that affect her autonomic nervous system and uses an electric wheelchair to get around used to have a team of carers who assisted her four times a day at her flat.

"I think what's frustrating with this, is the system, and the fact that it can just collapse," she says.  "I don't really feel I'm living at all. It's kind of just getting through the basics of being alive from day-to-day, and that's it."

The commission talked of "distressing" testimony gathered from support organisations, legal representatives and others, including that of an older man with a learning disability and mental health issues found “catatonic in bed”. He lost a significant amount of weight and is facing a long recovery due to a lack of social care.

It said that the pandemic had also "exacerbated pre-existing inadequacies" in the models of social care access, funding, procurement and commissioning, which are "unable to provide people with the support which best and most appropriately fits their life".

They called on the Scottish Government and the Convention of Scottish Local Authorities to develop an emergency decision making framework for social care which is grounded in "rights-based principles" of inclusion, participation in decision making and transparency which should meet critical human rights standards.

"It is clear that there is a need to strengthen the framework of decision making in social care, through applying a rights based approach," the commission said. "This would ensure stronger protection and respect for people’s rights as we continue to deal with Covid-19, including any potential second wave of infections.

"There is an opportunity to invest in a social care system, based on human rights, capable of delivering the outcomes which are enshrined in the Convention on the Rights of Persons with Disabilities.

"The international human rights legal framework should inform the provision of social care much more strongly, including through the integration of health and social care. This has the potential to inform the development of more robust accountability processes, both in relation to individual complaints and accountability mechanisms, but also in connection with budget scrutiny and transparency, through human rights budgeting."

It said that people who have had no, or partial social care assessments should have a review within six weeks.

"Where it is not possible for this to be delivered, local authorities should communicate clearly and proactively with people and their families as to the expected timescale for a full assessment, and any implications this will have for care-charging," the commission said.

Stuart Currie, COSLA’s health and social care spokesman said the study gave a "valuable insight" into the experience of social care during the pandemic.

"When the pandemic hit, local government worked with partners in the third and independent sector to try to ensure that social care support continued to be provided for those who needed it most. However, some people were impacted because social care support could not be delivered in the same way or because that person no longer wanted that support. It is critical that where this has happened it is reviewed and this work is underway in Health and Social Care Partnerships.

“COSLA agree that human rights should be enshrined in social care and this must be central to any reform or review of social care, this report sets out helpful recommendations to support this approach.”

An Scottish Government spokesman said:  “During this difficult time it is critical that social care support is maintained to ensure the safety dignity and human rights of people who already receive support.

“In addition to the funding directed towards social care in the 2020-21 budget the Health Secretary reached an agreement with COSLA that the Scottish Government would meet additional costs incurred because of the impact of the pandemic.

“We have allocated a total of £150 million for social care as part of our additional COVID funding this year to help the sector deal with the financial implications of the pandemic, to meet additional costs and to ensure people continue to have appropriate support.

“So, it is not acceptable that some local authorities have responded to this support by reducing care packages.

“Where unavoidable short term changes in people’s support were necessary the Scottish Government has been clear it is absolutely critical they be discussed together with the person and unpaid carers, and the impact and duration of any changes considered carefully.

“We are urgently working with local authorities, Health and Social Care Partnerships to assure people that such temporary changes to support should not be long term.

“As part of work to bring forward an Adult Social Care  Winter Plan we are reflecting on lessons learnt and considering what measures need to be in place to protect the delivery of care at home services in the months ahead.”