Human Rights Act fails to protect residents in private care home

In a test case with wide-reaching implications
for private sector providers, three appeal court judges rejected
claims last week that the disability charity Leonard Cheshire
Foundation should be made subject to human rights legislation
because it performed “public functions”.

The Court of Appeal ruled that residents who
were furious over plans to close the first-established Leonard
Cheshire home in its current form, had “no public law rights”.

Judges said the charity, as a private body,
was not subject to the terms of the European Convention on Human
Rights and its decisions could not be reviewed by the courts.

Last April, residents of Le Court home near
Petersfield mounted a judicial review challenge against the
charity’s plans to replace the 50-bed home for disabled people with
a 16-bed nursing home, claiming that the “redevelopment” would be
an infringement of their right to respect for private and family
life (News, page 6, 12 April, 2001).

In June, Justice Burton said he had no power
to consider their challenge under current law as judicial review
had historically been confined to decisions of public bodies and
had not been held to apply to private sector providers, and that
nothing in the Human Rights Act had changed that (News, page 6, 21
June).

However, he said the case raised issues of
“general public importance” suitable for consideration by the House
of Lords. The House of Lords rejected the rare “leap-frog” order by
Burton to bypass the Court of Appeal and the case went to the Court
of Appeal last month.

Residents’ counsel Richard Gordon QC told the
court that, as most of the residents at Le Court were funded by
local authorities, the charity was performing hybrid public/private
functions that made its decisions susceptible to judicial review.
He called for a widening of the courts’ power to review and
overturn decisions of private bodies to whom public functions were
out-sourced.

But last week, that appeal was dismissed by
Lord Justices Woolf, Dyson and Laws: “In our judgment, the role
that the Leonard Cheshire Foundation was performing manifestly did
not involve the performance of public functions. The fact that the
Leonard Cheshire Foundation is a large and flourishing organisation
does not change the nature of its activities from private to
public.”