Landmark case sets human rights limits

The 21 March 2002 will be recorded as the date when the Human
Rights Act 1998 had severe limits placed upon it by the judiciary.
The case of The Queen (on the application of Heather) v Leonard
Cheshire Foundation concerned the decision by the Leonard Cheshire
Foundation (a charity) to close Le Court, a home it owns and runs,
which currently provides long-stay care for 42 residents. Elizabeth
Heather and Hilary Callin have lived there for at least 17
years.

The charity (LCF) took a decision to end the running of Le Court
in its present form and instead develop three or four smaller
community based homes, creating a 16-bed high dependency unit on
the original site. The residents are to be relocated into the
smaller units. Two of the residents brought the matter to court.
The key issues were:

i. That LCF was exercising functions of a public nature, and as
a public authority should not act in an way which is incompatible
with the European Convention on Human Rights

ii. That LCF had contravened Article 8 of the convention by not
respecting the residents’ right to a home, and their promise to
provide “a home for life”

iii. That LCF had not individually assessed the residents’
needs

iv. That LCF had failed to take into account, or ignored, its
own policy of providing a home for life for the residents.

The court examined the statutory framework of the National
Assistance Act 1948 which places a duty on local authorities to
provide accommodation for “persons aged 18 or over who by reason of
age, illness, disability or other circumstances are in need of care
and attention which is not otherwise available to them”. It also
enables the local authority to make arrangements for the
accommodation to be provided by third parties, which in this case
is the LCF.

The Lord Chief Justice was clear: “If the authority itself
provides accommodation, it is performing a public function. It is
also performing a public function if it makes arrangements for the
accommodation to be provided by LCF. However, if a body which is a
charity, like LCF provides accommodation to those whom the
authority owes a duty…it does not follow that the charity is
performing a public function.” This matter was critical because if
the LCF is a public authority then it must not act incompatibly
with a person’s rights under section 6 of the Human Rights Act
1998.

The court looked at the Poplar Housing and Regeneration
Community Association v Donoghue case in April 2001, in which it
had decided that: “Taking into account all the circumstances we
have come to the conclusion that while activities of housing
associations need not involve the performance of public functions
in this case, in providing accommodation…and then seeking
possession, the role of Poplar was so closely assimilated to that
of Tower Hamlets that it was performing public and not private
functions.”

The court thought that if this LCF situation was one where a
local authority could divest itself of its human rights
responsibilities, then it would place the court under pressure to
protect the human rights of the claimants in this and other similar
cases. However, this cannot happen and the residents remain able to
claim against the local authority, even though it used its powers
to use a charity as a provider of services. The judges decided that
“In our judgement the role that LCF was performing manifestly did
not involve the performance of public functions.”

The Lord Chief Justice did mention that if the arrangements had
not been made 17 years ago, but after 2 October 2000, “then it
would arguably be possible for a resident to require the local
authority to enter into a contract with its provider which fully
protected the residents’ Article 8 rights and if this was done,
this would provide additional protection. Local authorities which
rely on section 26 (of the National Assistance Act 1948) to make
new arrangements should bear this in mind in the contract which
they make with providers.”

So, the burden rests solely on local authorities. The effect of
this case is to demolish the creation of a human rights culture, as
was the government’s aim, in assurances given by the Lord
Chancellor to the House of Lords in debates when the Human Rights
Act was going through Parliament: “we want to provide as much
protection as possible for the rights of individuals against the
misuse of power”, and declined to define public authorities because
he thought that “it is far better to have a principle rather than a
list which would be regarded as exhaustive”. The effect has been to
ensure that third party providers of services owe less duties to
those receiving services than full public authorities.

To read a news analysis of this case
click here

Bernadette Livesey

Human Rights Solicitor

Walker Morris