The 3 claimants, J, T and M were all residents in care homes within the London Borough of Havering and were provided with this accommodation pursuant to Havering’s statutory obligations under s21 National Assistance Act 1948. The claimants sought judicial review of Havering’s decision to seek a private sector operator for 2 of the homes and closure of the other 2. Havering considered the legal implications of the transfer and decided to go ahead by commencing a tendering process. Both the Department of Constitutional Affairs (DCA) and the Disability Rights Commission (DRC) obtained permission to intervene in the proceedings, both wishing to argue that care home owed human rights duties to public authority clients.
The grounds on which the claimants challenged Havering were based on 2 issues:
(1) whether a private body in providing accommodation to persons in need of care and assistance, itself exercised functions of a public nature within the meaning of s.6(3)(b) Human Rights Act 1998 such that it constituted a public authority for the purposes of s.6(1) HRA 1998; and
(2) Whether the transfer of a home providing accommodation to those in need of care and assistance to a private sector provider would be unlawful under s.6(1) HRA 1998 as constituting a breach of the Convention rights of the residents in the home.
The DCA submitted that care homes in the private sector which provided care and accommodation under sections 21 and 26 NAA 1948 were exercising public functions within the meaning of s.6(3)(b) Human Rights Act 1998. It also submitted that the decision of the Court of Appeal in R (on the application of Heather) v Leonard Cheshire Foundation (2002) should be re-evaluated in light of the House of Lords’ decision in Aston Cantlow PCC v Walbank (2004) which interpreted s.6(3)b) of the HRA 1998 in a different way; i.e. Section 6(3)(b) should be widely interpreted and in light of the jurisprudence of the ECHR and state responsibility and the question of whether the authority was exercising a public function was not the same as whether it was amenable to judicial review. The question of whether a body exercised public functions turned on the facts of each case, and there was no universal test.
The High Court stated that the purpose of s.6(3)(b) was to deal with hybrid bodies which had public and private functions and the section was not designed to make a body which did not have responsibilities to the public, a public body merely because it performed acts on behalf of a public body. The test of whether a body was a public authority carrying out functions of a public nature was inspired by the court’s approach to amenability to judicial review. What determined whether the acts were public, were features or a combination of features “which imposed a public character or stamp on the act.” Merely acting in the public interest did not point to the body being a public authority. Poplar Housing v Donoghue (2002) applied.
It held that the Leonard Cheshire case was authority for concluding that a private body, in providing accommodation to persons in need of care and assistance pursuant to arrangements made with a local authority in the exercise of that authority’s functions under s.21 and 26 of the NAA 1948, it was not exercising functions of a public nature. The court applied the following principles:
(i) Where a state discharged its obligation through a private body it did not relieve itself of any responsibilities that it would have incurred itself.
(ii) In determining whether a state had responsibility for the acts of a private body it was necessary to have regard to the degree of control exercised by the state over that body and
(iii) The exercise of state powers which affect Convention rights will result in state responsibility regardless of whether those powers are exercised by the state or private body on its behalf.
On the second issue, a transfer of the homes to the private sector did not absolve Havering of its duty under s.6 (1) to act compatibly with Convention rights, including those of the claimants, even if the transfer did not take place. The transfer from local authority to private sector accommodation would not lead to Convention rights of the residents being diminished or removed.