R (on the application of Heather) v. Leonard Cheshire Foundation

Elizabeth Heather and Hilary Collins are patients at a home called Le Court, which is owned and run by Leonard Cheshire Foundation (hereinafter referred to as “LCF”). The majority of patients at Le Court came from local authorities’ social services departments. Trustees of LCF decided to cease to operate Le Court in its present form and convert it into a high-dependency unit. Residents who would not be accommodated at Le Court would be relocated to community-based homes. The appellants demanded a judicial review of the Trustees’ decision, contending that LCF was performing a function of a public nature within the meaning of section 6(3)(b) of the Human Rights Act (hereinafter referred to as “HRA”) and they were bound to act in way which is compatible with the rights granted under Article 8 of the European Convention on Human Rights. Appellants lamented that the trustees of the LCF had contravened their right under Article 8 of the Convention by not respecting their right to a home and promises to a “home for life” made to them by LCF.

The Queens Bench Division dismissed their application for judicial review finding that the LCF is not a “public authority” within the meaning of that term in Section 6 of the Human Rights Act, 1988.

The Court dismissed the appeal finding that Article 8 did not apply to LCF. Article 8 and Section 26 of the National Assistance Act, 1948 (hereinafter referred to as “NAA”) both impose obligations on the local authorities. It’s possible that the local authorities divested their obligations to a private entity that functions in a public nature, but the Court found that that did not occur here. A local authority that has responsibility for accommodating people under Section 21 of the NAA that delegated the same task to a private charitable institution such as LCF under Section 26 of the NAA, does not automatically mean that the charitable institution is performing a public function. The Court held that since the arrangement between the local authorities and LCF was signed before the HRA came into execution, the local authority could not have intended to divest its HRA obligation nor the LCF to accept it. The Court noted that LCF’s contractual obligations to its patients remained.

“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 to whom the authority owes a duty under section 21 in accordance with an arrangement under section 26, it does not follow that the charity is performing a public function. Before the HRA came into force, we doubt whether it would have even been contemplated that LCF in providing care homes for people in the position of the appellants would be performing a public function. Whether under the HRA, LCF are performing a public function, is critical to this appeal because section 6 (1) of the HRA makes it unlawful for a public authority to act in a way which is incompatible with a Convention right and section 6 (3) HRA defines who is a public authority for the purpose of section 6 in these terms: ‘In this section ‘public authority’ includes … (b) any person certain of whose functions are functions of a public nature….’” (Para. 15)

“If the arrangements which the local authorities made with LCF had been made after the HRA came into force, 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 who rely on section 26 to make new arrangements should bear this in mind in the contract which they make with the providers. Then not only could the local authority rely on the contract, but possibly the resident could do so also as a person for whose benefit the contract was made. Here this was not a possibility because the appellants’ residence at Le Court began long before the HRA came into force and one feature of a case such as this is that the local authority did not when it entered into the arrangement with LCF intend that LCF should perform on its behalf its Article 8 responsibilities, nor did LCF accept any such obligation. It is not without relevance that here, if the appellants are right, the result would be that the function which would previously have been a private function has become a public function in consequence of the HRA coming into force and imposing retrospectively upon LCF additional responsibilities enforceable by law.” (Para. 34)