Carers beware

Are charities providing care homes subject to the 1998 Human Rights Act? The Court of Appeal recently had to consider this issue in the case of Heather and others v The Leonard Cheshire Foundation and another (21 March 2002). Its decision is relevant to many registered social landlords.

The Leonard Cheshire Foundation (LCF) provides care and support services for people with a wide range of disabilities. This includes residential and nursing services through 85 care homes. In recent years, LCF has had concerns about the standard of accommodation it could provide at one of its homes, Le Court, especially in the light of the Care Standards Act 2000, which reformed the way care services in England and Wales are regulated. After consultation, LCF decided, in principle, to replace Le Court with a 16-bed high-dependency unit, and to work with other homes in surrounding areas.

The High Court
This decision led three Le Court residents to bring judicial review proceedings in the High Court against LCF. They argued that:

• LCF was exercising functions of a public nature, which meant it was a public authority for the purposes of the Human Rights Act and therefore its decision breached article 8 of the act, which concerns respect for private and family life and the home.
  
• LCF's decision was made "in relation to the exercise of a public function" and therefore it was susceptible to judicial review because LCF had not taken into account promises made to the residents that Le Court would be their home for the rest of their lives.

The Court of Appeal
The residents were unsuccessful in the High Court, so they appealed. But the Court of Appeal dismissed the appeal, having considered the contractual arrangements between LCF and the local authorities that placed the people at Le Court. The Court of Appeal also considered the statutory framework of the 1948 National Assistance Act, which permits local authorities to make arrangements for accommodation with voluntary organisations.

The court decided: "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 under section 21 [of the National Assistance Act] in accordance with an arrangement under section 26, it does not follow that a charity is performing a public function."

Residents said replacing the home they lived in was a breach of their human rights

The court also referred to some observations made in Poplar HARCA v Donoghue (27 April 2001): "The fact that through the act of renting by a private body a public authority may be fulfilling its public duty does not automatically change into a public act what would otherwise be a private act."

The court found that LCF was not exercising public functions because it felt public funding was not determinative of public functions. LCF was not deemed to be "standing in the shoes of the state". But the court did say that a body like the charity could exercise some public functions, as well as private ones: "It is possible for LCF to perform some public and some private functions."

As for the position of the LCF under the Human Rights Act, the following points could be considered:

• If the local authority could divest itself of its article 8 obligations by contracting out to a body like LCF, the court would have a responsibility to interpret the act in a way that protected the rights dealt with in article 8.
  
• If the arrangements between LCF and the local authorities had been made after the Human Rights Act had come into force then, arguably, someone using LCF's services could require the local authority to enter into a contract that fully protected their human rights.

In LCF's case, the residence of the people bringing the case had started long before the act came into force. The local authorities had no intention that LCF should accept responsibility for human rights under article 8; nor did the charity accept such obligations.