Overheard in the 'public bar' of the Flat Cap and Whippet
‘I don't know; you can't tell whether they're private or public these days. . .’
‘Aye, you're right. When we were lads you knew where you stood. The Council was t'local authority and private sector were t'private sector - and that were that. . .’.
‘None of this mixed-up provision nonsense. . .’.
‘Aye, them were the days. . .’.
Private Body, Public Functions?
As our speakers indicate, whether or not a private organisation providing public services on behalf of a local authority is a public authority for human rights and other purposes, remains a vexed issue. And this has once again been up before the Administrative Court on 11 July 2006 charged with causing confusion in a public place. The case in question is R (Johnson and Others) v Havering London Borough Council [2006] EWHC 1714.
In this the Council had decided (amongst other things) to transfer two residential care homes to the private sector and to close two other homes and transfer their residents to suitable alternative accommodation. The resident Claimants argued that the closure and transfer to the private sector of the homes would lead to residents being deprived of effective protection for their human rights which the Council is obliged to guarantee. This was therefore submitted to be unlawful under section 6(1) of the Human Rights Act 1998 as constituting a failure by the Council to act compatibly with the Convention. The Claimants were in the residential care of the Council by reason of age and infirmity and were provided with that care in accordance with the Council's statutory obligations under section 21 of the National Assistance Act 1948.
The parties agreed that the challenge involved consideration of the following two areas of principle:
- Whether a private body in providing accommodation to persons in need of care and assistance under arrangements made with a local authority in the exercise of that authority's functions under sections 21 and 26 of the 1948 Act exercises 'functions of a public nature' within section 6(3)(b) of the Human Rights Act 1998 so that it falls to be treated as a public authority for the purposes of section 6(1) of the 1998 Act in the exercise of those functions.
- Whether the transfer of a home providing accommodation under these circumstances to a private sector provider under section 26 of the 1948 Act would be unlawful under section 6(1) of the 1998 Act as constituting a breach of the Convention Rights of the residents in question.
Care Home Provision and Human Rights
Section 21 of the 1948 Act enables and requires as appropriate an authority (amongst other things) to make arrangements for providing adult residential accommodation for persons who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them. Section 26 (subject to detailed provisions and amongst other things) enables arrangements made under section 21 to be with a voluntary or other non-local authority organisation which manages premises providing relevant accommodation for reward.
Section 6(1) of the 1998 Act provides that it is unlawful for a public authority to act incompatibly with a Convention right. And by section 6(3)(b) a public authority for these purposes includes 'any person certain of whose functions are functions of a public nature'.
Private Care Provider not a Public Authority
Forbes J reviewed the caselaw including the decision of the Court of Appeal in Poplar Housing and Regeneration Community Association Ltd v Donoghue [2001] 4 All ER 604 (registered social landlord which had taken a transfer of local authority housing stock was on the facts a public authority when issuing possession proceedings against a tenant). The Court of Appeal had held in that case that what determines whether acts are public is 'a feature or combination of features which impose a public character or stamp on the act'.
Forbes J also in particular noted the leading decision of the Court of Appeal in R (Heather) v Leonard Cheshire Foundation and another [2002] 2 All ER 936 where the claimants were long-term residents of a care home run by the charitable Leonard Cheshire Foundation (LCF). They had been provided with accommodation in accordance with arrangements made by various local authorities with LCF pursuant to their statutory duties and powers under sections 21 and 26 of the 1948 Act.
In that case the claimants had argued that in making the decision to close the care home and relocate the claimants LCF was exercising functions of a public nature within section 6(3)(b) of the 1998 Act. However, Lord Woolf CJ, in giving the judgment of the Court emphatically rejected that argument, indicating that: 'In our judgment the role that LCF was performing manifestly did not involve the performance of public functions'.
Forbes J consequently considered that the Leonard Cheshire case was clear Court of Appeal authority and binding upon him to the effect that a private body in providing accommodation to persons in need of care and assistance under arrangements made with a local authority in the exercise of the authority's functions under sections 21 and 26 of the 1948 Act is not in itself exercising functions of a public nature. He had already referred to the dictum of Lord Woolf in Leonard Cheshire (cited above) and quoted the headnote summary of the Court's decision, including:
'. . . The fact that it was a large and flourishing organisation did not change the nature of its activities from private to public. While the degree of public funding of the activities of an otherwise private body was relevant to the nature of the functions performed, it was not by itself determinative of whether the functions were public or private. The Foundation was not standing in the shoes of the local authority. Section 26 of the 1948 Act provided statutory authority for the actions of the local authority, but provided the foundation with no powers. The foundation was not exercising statutory powers in performing functions for the claimants. The fact that, if the foundation were not performing a public function, the claimants would not be able to rely on article 8 as against it could not change the appropriate classification of the foundation's function.' (Emphasis added).
Forbes J also did not accept a submission that the Leonard Cheshire case needed to be re-evaluated in the light of the decision of the House of Lords in Aston Cantlow PCC v. Wallbank (2004) 1 AC 546. In particular, Forbes J noted the indications of Dyson LJ in R (Beer) v. Hampshire Farmer's Markets Ltd (2004) 1 WLR 233 that provided that regard is had to any relevant Strasbourg caselaw, relevant passages Donoghue and Leonard Cheshire 'will continue to be a valuable source of guidance'.
No Breach of Human Rights
The Court also found no breach of the Claimants' Convention rights since after any transfer those Claimants will still continue to enjoy the very same Convention rights as against the Council as they do at present. This is because the Council as a core public authority has an obligation to act compatibly with the Claimants' Convention Rights and a transfer of the homes to the private sector does not absolve the Council of this duty.
Unravelling the Private from the Public
In the ever more complex world of public sector service provision it can often be difficult to unravel quite who is responsible for providing what service and whether those services are regulated by public or private law. However, as previous caselaw indicates, some key ingredients of the actions of a public authority are as follows:
- A feature or a combination of features which impose a public character or stamp on the act in question.
- The functions in question are statutory or otherwise governmental and are not merely contractual.
Much fuel for debate, no doubt, in the public house.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
