Residents lose battle to prevent charity closing home

Residents in a care home run by a charity failed in the high
court in a bid to challenge the decision to close it down.

Elizabeth Heather, Martin Ward and Hilary Callin all challenged
a decision by the Leonard Cheshire Foundation (LCF) taken in
September 2000 to close the care home in Petersfield, Hampshire,
where they had been resident for over 17 years, and to move them to
alternative accommodation in nearby smaller, community-based
units.

They used two arguments:

(i) LCF exercised functions of a public nature and came within
the definition of a public authority within section 6 of the Human
Rights Act 1998 (HRA), and so owed them a duty to comply with their
right to respect for their home under Article 8 of the European
Convention on Human Rights (ECHR). They were clear the decision to
close the home breached that duty, as they thought they had a
legitimate expectation that this was their ‘home for life’; and

(ii) the decision could be judicially reviewed.

Mr Justice Stanley Burnton dismissed the challenge, saying prior
to the HRA the law was clearly settled that a body such as LCF
could not be judicially reviewed, and that nothing in the HRA had
changed that. Since LCF did not exercise a public function, it did
not have duties imposed by the HRA and its actions were therefore
not capable of being judicially reviewed.

Comment: There was a recent case (Teresa Donoghue v Poplar
Housing & Regeneration Community Association Ltd and Secretary
of State for the Environment, Transport and the Regions) in the
court of appeal on 27 April 2001, which made it clear that housing
associations are clearly public authorities which do owe human
rights duties. However, Mr Justice Stanley Burnton said that the
Poplar case was not relevant to the LCF case, and so it seems that
tenants in charity accommodation have fewer human rights than those
in local authority or housing association premises.

Lord Irvine said, on 24 November 1997 as the Human Rights Bill
was going through the House of Lords, that what is a public
authority “will have to be [considered] case by case by the courts
when issues arise. We think that it is far better to have a
principle rather than a list which would be regarded as
exhaustive.”

Was it intended that there should be people with different
classes of rights? That may not have been the intention, but it
surely is the result.

Bernadette Livesey

Human Rights Solicitor

Walker Morris