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Discrimination in care services - who's treating you unfairly?

This advice applies to Scotland

If you’ve been treated unfairly by a care provider because of who you are, you may have been discriminated against.

The law which says you mustn’t be discriminated against is called the Equality Act 2010. Discrimination which is against the Equality Act is unlawful. If you’ve experienced unlawful discrimination, you may be able to do something about it.

Read this page to find out more about who mustn’t discriminate against you when you receive care services.

Top tips

If you want to know if unlawful discrimination has taken place, you need to check:

  • why you are being treated unfairly
  • who's treating you unfairly
  • what's the unfair treatment
  • how is the treatment unfair or what type of discrimination it is.

What’s meant by care services?

Care services help you with your extra needs because of your disability, illness, or if you’re a carer or an elderly person. They are generally provided through your local authority social services department, but you may also arrange your own care services yourself.

Here are examples of different care services:

  • residential and nursing homes
  • home care support for elderly or disabled people
  • day centres for older people
  • adaptations to the home and special equipment like wheelchairs and stairlifts
  • support in the community for people with mental health problems
  • care for children who can’t live with their parents - for example, foster homes
  • meals on wheels
  • respite care - for example, temporary care for a disabled child to give their parents a break
  • intermediate services like a short-term place in a care home after a stay in hospital.

Who mustn’t discriminate against you?

Anyone who works for a care provider have a duty not to discriminate against you. It doesn’t matter if the care provider is public or private. And it doesn’t matter if the services are free or if you have to pay for all or some of the fees yourself.  

But you have more rights if you receive care services from the public sector or from an organisation providing publicly funded services.

If you receive care services from the public sector

Care services from the public sector are those that are funded and run by a local authority or the NHS.

Here are care services provided by the public sector:

  • residential care in a local authority care home
  • residential care in a care home funded by the NHS
  • home care services or community support provided by the local authority
  • NHS continuing care.

If you receive care services from the public sector you’re protected against discrimination under the Equality Act. You also have additional rights under the Human Rights Act 1998, as the NHS and local authorities must follow human rights law.

If you receive care services from the private sector

Private care providers, including private organisations and charities, must always follow the Equality Act. If you receive care services from a private care provider, you mustn’t be discriminated against.

But they don’t always have to follow the Human Rights Act. This depends on whether you’re in a care home or receive home care services and who pays for your care.  

Residential care provided by the private sector

Care homes which are publicly funded are covered by the Human Rights Act. This is the case when a care home has been contracted or commissioned by a local authority to provide care services.

You will be protected under the Human Rights Act if your care has been arranged and is funded by the local authority. But, if you have to pay for the care yourself, you’re not protected.

Home care provided by the private sector

If your care provider is privately owned and you have to pay for your home care yourself, you're not protected under the Human Rights Act.

If your home care is paid for and arranged by your local authority you have some protection under the Human Rights Act. You may not be able to take action yourself against the provider as the courts have said the Human Rights Act doesn't apply to private home care providers.

But your local authority has a positive duty to protect you under the Human Rights Act. They should therefore take steps to make sure you receive adequate home care where your human rights are protected.

Also, when your local authority uses a private care provider to provide home care on their behalf, the contract may say the organisation must follow the Human Rights Act. In this case your local authority can take direct action against the organisation if they breach your human rights.

Personal assistants

A personal assistant is someone you employ to help with your care. You pay their wages either out of your own money or by money you get from your local authority through the direct payments system.

If you employ a personal assistant, they aren’t generally covered by the Equality Act, even if you pay for them with direct payments from the local authority. However, you’re responsible for drawing up their employment contract and you could include a condition that they must stick to equality principles. If they break these principles, you can legally dismiss them because they’ve broken their employment contract.

If you employ staff from an agency, the agency has a duty not to discriminate against you when they send you staff.

Example

You need support to live at home. You contact an agency and ask them to send you staff who’ve been vetted and suitably trained. But the agency refuses to work with you because you tell them you’re gay. This is unlawful discrimination.

Next steps

Other useful information

Equality Advisory Support Service (EASS)

If you have experienced discrimination, you can get help from the EASS discrimination helpline.

Equality and Human Rights Commission (EHRC)

You can find useful information about discrimination on the EHRC website at

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