The Court of Appeal upheld the High Court’s decision that the Leonard Cheshire Foundation (LCF) was not a public authority and was not exercising functions of a public nature within the meaning of s6 HRA 1998, merely by virtue of its contractual arrangement with the local authority, through which the local authority discharged its duties under s21 NAA 1948.
There was no material distinction between the nature of the services LCF provided for residents funded by a local authority and those it provided to residents funded privately. 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. S26 NAA provided statutory authority for the actions of the local authorities, but did not provide LCF with any statutory powers. Unlike the Housing Association in the Poplar case, LCF was not ‘standing in the shoes’ of local authorities.
Although the claimants accordingly had no public law rights, a case such as this – where a bona fide, though incorrect, contention was being advanced that LCF was performing a public function – was an appropriate case to be brought to the court by way of judicial review.
The Court observed that the local authority retained its article 8 obligations to the claimants, and that the court would have had a responsibility to adopt an approach to the interpretation of s6 HRA which protected the article 8 rights of people in the claimaints’ position, had this been a situation where a local authority could divest itself of those article 8 obligations by contracting out its s21 NAA duties to a voluntary sector provider. The Court also noted that that it would be possible for a resident in a home to require the local authority to enter into a contract with the provider of the accommodation which fully protected the resident’s rights under the HRA 1998 .
High Court decision:
Home closure – charitable body – non-public sector home providers – public authority – amenability to judicial review – human rights
The defendant charitable body was not a public authority and did not exercise any functions of a public nature within the meaning of s6 Human Rights Act 1998 and/or CPR Part 54, notwithstanding its arrangements with the local authority to provide community care services. Local authorities were permitted by statute to provide mandatory services either themselves or by contracting with third parties. This did not of itself make the third parties public authorities and did not of itself mean that the third parties exercised public functions.
The decision by Leonard Cheshire to close the home at which the claimants were resident was therefore not amenable to judicial review and did not engage article 8 of the European Convention on Human Rights.