Independent providers expected to face liability despite ruling on rights

Independent care agencies delivering publicly funded services are likely to be brought under human rights law despite a High Court ruling that they are exempt.

The government, which supports bringing independent providers under the Human Rights Act 1998, is expected to consider legislation if the current test case does not succeed on appeal.

It intervened in the judicial review brought by three residents of Havering Council’s care homes against the east London authority’s decision to transfer their care to private providers.

The residents claimed this would rob them of human rights protection (Private care providers not subject to Human Rights Act).

But Mr Justice Forbes said last week that private providers were not liable and the council would remain responsible for safeguarding their rights.

The residents are due to seek leave to appeal to the Court of Appeal and, if necessary, are expected to pursue the case in the House of Lords.

Katie Ghose, director of the British Institute of Human Rights, said the chances of success were boosted by the consensus behind the principle of extending the act to private providers, also backed by the Disability Rights Commission.

She said: “We would hope that the House of Lords would be persuaded. The government is still very open to considering the legislation route if that fails.”

Solicitor Yvonne Hossack, who is representing the residents and has long campaigned on behalf of care home residents transferred out of local authority homes, said she was confident of success.

However, she criticised the government’s failure to intervene in previous, similar cases she had handled and the £25,000 legal aid limit placed on the case, which forced her to provide her services free.

The Department for Constitutional Affairs would “consider the judgement carefully”, said a spokesperson, who added that it was disappointed with current case law on the issue and the “narrow definition of public authority”.

A matter of interpretation
The Human Rights Act 1998 makes public authorities subject to the European Convention of Human Rights. This was intended to apply to independent providers delivering public services but the courts have not interpreted it in this way. Notably, in 2002, the Court of Appeal rejected a claim that Leonard Cheshire had breached the rights of publicly funded residents at one of its care homes by closing it, because it was not a public authority.