The House was asked whether a private care home when providing accommodation and care to a resident under arrangements with a local authority the 1948 Act, is performing ‘functions of a public nature’ for the purposes of section 6(3)(b) of the Human Rights Act 1998 and as such a ‘public authority’ subject to Convention rights under section 6(1) of that Act.
Held: There is no one test of whether a body carries out a public function. In this case the duties exercised by the care homes were similar to those formerly conducted by the council, but were undertaken for a different purpose, and not under any statutory duty. That was sufficient to mean that the care home was not exercising a function of a public nature.
Lord Scott said: ‘it cannot be enough simply to compare the nature of the activities being carried out at privately owned care homes with those carried out at local authority owned care homes. It is necessary to look also at the reason why the person in question, whether an individual or corporate, is carrying out those activities. A local authority is doing so pursuant to public law obligations. A private person, including local authority employees, is doing so pursuant to private law contractual obligations. The nature of the function of privately owned care homes, such as those owned by Southern Cross, no different for section 6 purposes from that of ordinary privately owned schools or privately owned hospitals (nb some schools and hospitals may have special statutory powers over some pupils and patients eg reformatories in the olden days and mental hospitals these days), seems to me essentially different from that of local authority care homes.’
Lord Neuberger said: ‘The fact that Birmingham, as a core public authority, could have provided care and accommodation for Mrs YL in a care home which it ran itself seems to me to be a factor which assists the contention that Southern Cross is performing a function of a public nature, but only to a limited extent. It is certainly not a sufficient condition: indeed, it appears to me to be more like a necessary condition. While it would be wrong to be didactic in this difficult area, I suspect that it would be a relatively rare case where a company could be performing a ‘function of a public nature’ if it was carrying on an activity which could not be carried out by any core public authority. On the other hand, I would not accept that the mere fact that a core public authority, even where it is the body funding the activity, could carry out the activity concerned must mean that the activity is such a function. Apart from anything else, there must scarcely be an activity which cannot be carried out by some core public authority’.
Lord Bingham of Cornhill, Lord Scott of Foscote, Baroness Hale of Richmond, Lord Mance, Lord Neuberger of Abbotsbury
[2007] UKHL 27, Times 21-Jun-2007, [2008] AC 95, [2007] 3 All ER 957, [2007] 3 WLR 112
Bailii
National Assistance Act 1948 21 26, European Convention on Human Rights
England and Wales
Citing:
Cited – Regina (Heather and Another) v Leonard Cheshire Foundation CA 21-Mar-2002
The appellants appealed rejection of their application for judicial review. They were long term residents in a nursing home, which the respondents had decided to close.
Held: Though the respondent did exercise some public functions, and its . .
Appeal from – Johnson and others v London Borough of Havering and others CA 30-Jan-2007
The claimants were residents of old people’s homes run by the council and maintained under s21 of the 1948 Act. They objected to the transfer of the homes into the private sector saying that it would infringe their rights to family life, and that . .
Cited – Johnson and others v London Borough of Havering and others CA 30-Jan-2007
The claimants were residents of old people’s homes run by the council and maintained under s21 of the 1948 Act. They objected to the transfer of the homes into the private sector saying that it would infringe their rights to family life, and that . .
Cited – Kay and Another v London Borough of Lambeth and others; Leeds City Council v Price and others and others HL 8-Mar-2006
In each case the local authority sought to recover possession of its own land. In the Lambeth case, they asserted this right as against an overstaying former tenant, and in the Leeds case as against gypsies. In each case the occupiers said that the . .
Cited by:
Cited – Weaver, Regina (on the Application of) v London and Quadrant Housing Trust Admn 24-Jun-2008
An assured tenant sought to challenge a possession order made for rent arrears. He said that as a public body the landlord had a duty under human rights law to pursue all posssible alternate solutions before seeking possession.
Held: The . .
Cited – Yarl’s Wood Immigration Ltd and Others v Bedfordshire Police Authority CA 23-Oct-2009
The claimant sought to recover the costs of damage to their centre following a riot, saying that under the 1886 Act, they were liable. It appealed against a ruling that they were unable to claim as a public authority, saying that the 1886 Act was . .
Cited – Boyle, Regina (On the Application of) v Haverhill Pub Watch and Others Admn 8-Oct-2009
The claimant had been banned from public houses under the Haverhill Pub Watch scheme. He now sought judicial review of a decision to extend his ban for a further two years. The Scheme argued that it was not a body amenable to judicial review, and . .
Cited – Virgin Media Ltd, Regina (on The Application of) v Zinga CACD 24-Jan-2014
Zinga had been convicted of conspiracy to defraud in a private prosecution brought by Virgin Media. After dismissal of the appeal against conviction, Virgin pursued confiscation proceedings. Zinga appealed against refusal of its argument that it was . .
Cited – Scott v LGBT Foundation Ltd QBD 3-Mar-2020
Disclosure of risk of self harm made no claim
The claimant complained that the respondent support group had disclosed to his doctor that fact that they had assessed him as being at significant risk of suicide or other substantial self-harm, and that it was at that time unable to provide Mr . .
Lists of cited by and citing cases may be incomplete.
Health, Human Rights
Leading Case
Updated: 02 November 2021; Ref: scu.253518