UK: Private And Voluntary Sector Home Providers And The Human Rights Act

So held Burnton J., in a case involving yet another promise of an alleged 'home for life' - this time from a charitable home offering services to the public sector, and to private clients. The judge upheld the analysis in the Servite Houses decision to the effect that although residential care is very important, and obviously provided 'in the public interest', and a service provided to vulnerable people, at that, it is not thereby a public function attracting liability under the HRA, nor amenability to judicial review, in the event of closure, or some other arguable wrong on the part of its management.

The three residents had lived at the largest Leonard Cheshire Home for more than 17 years each. A closure decision was made, with the Trustees intending to develop several smaller homes located in the surrounding towns, the current home to be kept for a smaller high-dependency unit. The residents challenged the closure decision by way of judicial review, and under the Human Rights Act. In order for a body to be vulnerable to either of these claims, it has to be exercising a public function.

The Trustees' fundamental defence to the proceedings was a jurisdictional one, and related to the assertion by the claimants, that the Leonard Cheshre Foundation is a public authority by dint of exercising 'public' functions. The Attorney General intervened in the proceedings on the basis that the claim should not have even been started without the permission of the Charity Commissioners, as required by the Charities Act, and this had some significance for the judge's conclusions as to the real remedy open to the claimants, in cases such as these.

The relationship between the claimant residents, the home and the placing authorities was described as triangular. The Authority enters into a funding agreement with the home, and pays sums under that agreement, and the home enters into a licence agreement with the resident, pursuant to which it provides residence, care and treatment. The relationship between the authority and the resident is governed wholly by public law. As for the home and the resident, termination of the licence had been expressed in writing to be possible in the case of deterioration of the client's condition, misbehaviour or unreasonable failure to pay charges. Eviction in the event of redevelopment was not mentioned - and that might conceivably become be a cause for finding the Trustees to be in breach of trust or even contract, in charity proceedings.

The Servite Houses case had held that a housing association was not a 'public authority' in this same situation - contracting beds to a local authority for those owed a duty under the NAA. It was submitted that the Human Rights Act had changed the law in relation to the Servite Houses decision, even assuming it had been correct at the time. But the judge held that he so entirely agreed with that decision that he did not need to comment further upon it - 'function' is not of itself a sufficient indicator of 'public authority' status. 'Group 4' is a public authority because the Criminal Justice Act imposes important statutory obligations and powers on those who run privatised prisons, not because of the nature of the function it is discharging. State funding, whether by grant or by contract, does not automatically indicate the exercise of public functions either - and in fact the presence of a contract makes the inference even weaker. It is only if there is a true delegation (or agency, we think) or sharing of functions, that this may occur, and true delegation is a rarity, and itself requires statutory authority - an example given was para 13 of schedule 2 to the NHS Act 1990. State regulation (registration etc) also tends against a finding of a public function; it is the regulator, not the regulated, who exercises a public function.

Given that Servite was decided before the coming into force of the Human Rights Act, counsel argued that the law as summarised above, had changed, and that the HRA should be given a generous and purposive construction. Whilst the judge agreed, he declared that a leaflet signed by the Home Secretary (in which he predicted that residential homes would be public authorities) was irrelevant to the interpretation of the meaning of the HRA itself. Furthermore, although the judge did accept that a functional test was now the test for amenability to judicial review (because the Civil Procedure Rules had changed, as of the 2nd October too, and were worded identically (ie in relation to the exercise of a public function') to the HRA), he was still unconvinced that the functional test included providers of residential care. The claimants' counsel felt obliged to concede that privately contracting residents would not be able to judicially review such a home; but to the judge's mind, that concession only supported his conclusions that the test for amenability to such proceedings was not purely functional, even now, and still implied that there had to be some sort of governmental nature to the function. A purely functional test would not discriminate between private fee paying and publicly funded residents of such homes, because the function would be identical for both - the provision of care. The 'public function' requirement must mean more than merely that a significant number of people, or even vulnerable people, are involved or affected.

The judge ended up distinguishing this case from the recent Poplar Housing Association case (in which a housing association was held to be a public authority, in relation to a tenant) in the following way. Whereas Poplar was created by the local authority to take over its stock, Leonard Cheshire was established by private individuals. Poplar was registered as a social landlord and RSLs have statutory duties to co-operate with local housing authorities. Nomination agreements are the form which such co-operation normally takes. In contrast, no LA purchasing authority is able to compel a residential home to accept a particular person as a service user or resident. The Housing Corporation can withdraw funding from an RSL, make appointments to its governing body and remove employees. There are no such powers within the residential care registration framework. Poplar took all comers from Tower Hamlets, whilst Leonard Cheshire Homes were not dependent on any single public authority. The Poplar tenant had been in place at the time of the transfer to the RSL, and there was no such factor in this case.

As to whether charities as a distinct sector are ever going to be amenable to judicial review or HRA claims, the judge said the mere fact that a charity is a form of public trust does not mean that they can automatically be subject to judicial review. They may be, but only if the function in question is a public one in the governmental sense.

More helpfully to the residents, however, he did say that acts by trustees of a charity, in the exercise of its functions, that cause Convention rights to be infringed, may well constitute breaches of trust - we would add breaches of contract as well - and legal proceedings to challenge them would be charity proceedings. The significance of this is that in cases where the policy of the provider is to provide a 'home for life', then if that promise was feasibly interpreted as being a promise of a home in a particular setting, for life, then closure may amount to a breach of trust or contract, in which private sector proceedings may be able to be brought. In any case where a charity is actually found to be exercising a public function, such that it could be amenable to judicial review as well - then it could be sued in judicial review proceedings, or under the HRA. The example given in Servite Houses was the provision of domiciliary care under s29 of the NAA - the deemed 'agency' status of all such providers under s30 of that Act might be sufficient to confer upon them the shared responsibility of the 'public' function of actual provision - and unwanted actions or decisions in the course of such service provision might therefore count as 'public' functions. But in all such cases, whether brought in private or public law proceedings, the Charity Commissioners would have to give permission for the proceedings to be commenced.

Interestingly, the judge concluded that his decision against 'public authority' status was not such a bad thing. Whilst it meant that residents had no human rights under the legislation, it also meant that a wide range of voluntary bodies kept their human rights, vis a vis local and central government bodies, because if they were public authorities then they could not themelves have 'human' rights under the Convention. Are fringe theatres receiving public sector funding to be denied their freedom of expression, simply because they are in receipt of such funds? That would be undesirable, in the judge's view.