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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Leonard Cheshire Foundation (a charity) & Anor., R. v [2002] EWCA Civ 366 (21st March, 2002) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2002/366.html Cite as: 69 BMLR 22, [2002] 2 All ER 936, [2002] EWCA Civ 366 |
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COURT OF APPEAL (DIVISIONAL COURT)
ON APPEAL FROM QUEENS BENCH DIVISION
(MR JUSTICE STANLEY BURNTON)
Strand, London, WC2A 2LL | ||
B e f o r e :
LORD JUSTICE LAWS
and
LORD JUSTICE DYSON
____________________
The Queen | Appellant | |
- and - | ||
Leonard Cheshire Foundation (a charity) & Anr. | Respondent |
____________________
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
appeared for the Appellant
Mr James Goudie QC and Miss Dinah Rose (instructed by Trowers & Hamlins)
appeared for the Respondent
Mr William Henderson (instructed by Treasury Solicitor)
appeared for HM Attorney General
____________________
AS APPROVED BY THE COURT
Crown Copyright ©
Lord Woolf CJ: This is the judgment of the Court
INTRODUCTION
“. . . having considered the judgment of the Court of Appeal in Donoghue and the parties’ written submissions, I have concluded that my original decision was correct. Rather then re-write my judgment in the light of that decision, I have retained most of the text of my draft judgment and made reference to the judgment of the Court of Appeal where appropriate. This has the disadvantage that my judgment is now unnecessarily long, and even longer than it was originally. However, if I had started afresh my original reasoning would have been lost. I hope that in general it will be obvious which parts of my judgment are new.” (Paragraph 12.)
THE STATUTORY FRAMEWORK
“21 Duty of local authorities to provide accommodation
(1) Subject to and in accordance with the provisions of this Part of this Act, a local authority may with the approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing –
(a) residential accommodation for persons aged eighteen or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them; and
(aa) residential accommodation for expectant and nursing mothers who are in need of care and attention which is not otherwise available to them.”
“(4) Subject to the provisions of section 26 of this Act accommodation provided by a local authority in the exercise of their functions under this section shall be provided in premises managed by the authority or, to such extent as may be determined in accordance with the arrangements under this section, in such premises managed by another local authority as may be agreed between the two authorities and on such terms, including terms as to the reimbursement of expenditure incurred by the said other authority, as may be so agreed.
(5) References in this Act to accommodation provided under this Part thereof shall be construed as references to accommodation provided in accordance with this and the five next following sections, and as including references to board and other services, amenities and requisites provided in connection with the accommodation except where in the opinion of the authority managing the premises their provision is unnecessary.”
“26 Provision of accommodation in premises maintained by voluntary organisations
(1) Subject to subsections (1A) and (1B) below, arrangements under section 21 of this act may include arrangements made with a voluntary organisation or with any other person who is not a local authority where –
(a) that organisation or person manages premises which provide for reward accommodation falling within subsection (1)(a) or (aa) of that section, and
(b) the arrangements are for the provision of such accommodation in those premises.”
This is how the claimants came to be at Le Court.
“(2) Any arrangements made by virtue of . . . this section shall provide for the making by the local authority to the other party thereto of payments in respect of the accommodation provided at such rates as may be determined by or under the arrangements and subject to subsection (3A) below the local authority shall recover from each person for whom accommodation is provided under the arrangements the amount of the refund which he is liable to make in accordance with the following provisions of this section.”
“(3) In this section ‘public authority’ includes –
(b) any person certain of whose functions are functions of a public nature.”
“(5) In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private.”
“58. . . . The fact that a body performs an activity which otherwise a public body would be under a duty to perform, cannot mean that such performance is necessarily a public function. A public body in order to perform its public duties can use the services of a private body. Section 6 should not be applied so that if a private body provides such services, the nature of the functions are inevitably public. If this were to be the position, then when a small hotel provides bed and breakfast accommodation as a temporary measure, at the request of a housing authority that is under a duty to provide that accommodation, the small hotel would be performing public functions and required to comply with theHuman Rights Act
1998. This is not what the
Human Rights Act
1998 intended. The consequence would be the same where a hospital uses a private company to carry out specialist services, such as analysing blood samples. The position under the
Human Rights Act
1998 is necessarily more complex. Section 6(3) means that hybrid bodies, who have functions of a public and private nature are public authorities, but not in relation to acts which are of a private nature. The renting out of accommodation can certainly be of a private nature. 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: see, by analogy, R v Muntham House School, Ex parte R [2000] LGR 255.
59. The purpose of section 6(3)(b) is to deal with hybrid bodies which have both public and private functions. It is not to make a body, which does not have responsibilities to the public, a public body merely because it performs acts on behalf of a public body which would constitute public functions were such acts to be performed by the public body itself. An act can remain of a private nature even though it is performed because another body is under a public duty to ensure that that act is performed.”
“ iii). The act of providing accommodation to rent is not without more a public function for the purposes of section 6 of theHuman Rights Act 1998. Furthermore, that is true irrespective of the section of society for whom the accommodation is provided.
iv). The fact that a body is a charity or is conducted not for profit means that it is likely to be motivated in performing its activities by what it perceives to be the public interest. However, this does not point to the body being a public authority. In addition, even if such a body performs functions, that would be considered to be of a public nature if performed by a public body, nevertheless such acts may remain of a private nature for the purpose of sections 6(3)(b) and 6(5).
v). What can make an act, which would otherwise be private, public, is a feature or a combination of features which impose a public character or stamp on the act. Statutory authority for what is done can at least help to mark the act as being public; so can the extent of control over the function exercised by another body which is a public authority. The more closely the acts that could be of a private nature are enmeshed in the activities of a public body, the more likely they are to be public. However, the fact that the acts are supervised by a public regulatory body does not necessarily indicate that they are of a public nature. This is analogous to the position in judicial review, where a regulatory body may be deemed public but the activities of the body which is regulated may be categorised private.
vi). The closeness of the relationship which exists between Tower Hamlets and Poplar. Poplar was created by Tower Hamlets to take a transfer of local authority housing stock; five of its board members are also members of Tower Hamlets; Poplar is subject to the guidance of Tower Hamlets as to the manner in which it acts towards the defendant.
vii). The defendant, at the time of transfer, was a sitting tenant of Poplar and it was intended that she would be treated no better and no worse than if she remained a tenant of Tower Hamlets. While she remained a tenant, Poplar therefore stood in relation to her in very much the position previously occupied by Tower Hamlets. (Paragraph 65.)”
“(i) The test of whether a particular function is or is not a ‘public function’ so as to create, in that respect, a ‘hybrid’ authority depends neither in whole nor in part on being able to ascribe a legislative source for the exercise of power although the presence of such a source is likely to be determinative.
(ii) Essentially, the question that has to be asked in respect of the function in question is whether the authority is standing in the shoes of the State when exercising that function. If it is, then the function in question is a public function.
(iii) In determining whether an authority is standing in the shoes of the State one very important principle will be whether the authority is the means by which the State achieves the exercise of its responsibilities towards individuals in a way which leaves the authority both: (i) in a position to violate Convention rights that the individual would, otherwise, have against the State, and (ii) in a position to determine the ‘fair balance’ that is required to be struck by the State when interfering with those Convention rights (‘the principle’).”
“a. 38 of the 43 residents at the residential care home known as Le Court are funded by purchasing statutory authorities. Nationally, only 14% of LCF’s places are privately funded although there is - even in the case of publicly funded placements - a ‘top up’ element from LCF’s own funds derived from voluntary income.
b. Al and A3’s placements (Ms Heather/Callin) are funded by their welfare benefits and by social care funding by Surrey CC pursuant to a statutory arrangement between Surrey CC and LCF for which they are eligible by reason of their vulnerability.
c. Such placements are required, by Directions issued by the S/S, to be made in respect of persons aged 18 or over who ‘by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them’ either directly by the local authority social services department under NAA s. 21 or (as here) by virtue of arrangements with a private provider under NAA s. 26.
d. Where an arrangement is -as here -made with a ‘private’ provider, such as LCF, the residential care home (the subject of the arrangement) is (materially) made subject to statutory regulation under NAA s. 26(1A).
e. A2’s placement (Mr. Ward) is funded by South West Hampshire Health Authority who could have, but did not, purchase the same health care for A2 from an NHS Trust under a statutory arrangement pursuant to NHSCCA s. 5 and entered into an arrangement with LCF for the self-same purpose, namely to provide NHS services to Mr. Ward.
f. So far as funded residents at Le Court are concerned there is a triangular relationship between LCF, the placing/funding authority and the resident whereby the authority pays direct to LCF and LCF enters into a licence agreement with the resident in question: the relationship between the placing/funding authority and the resident is governed entirely by public law.
g. There is no express provision in the licensing agreements between LCF and the residents permitting LCF to re-develop and/or to terminate the agreement in its general discretion or otherwise than for specific identified reason -on the face of the licence the resident is entitled to stay in the home ‘for as long as the Resident wishes’: neither of the placing/funding authorities has challenged the decision of LCF to re-develop.”
“I cannot conclude this matter without expressing my sympathy for the applicants. This case represents more than tension between public law and private law rights, but a collision. If I am right in my reasoning, it demonstrates an inadequacy of response to the plight of these applicants now that Parliament has permitted public law obligations to be discharged by entering into private law arrangements. Whether the solution lies in imposing public law standards on private bodies whose powers stem from contract or in imposing greater control over public authorities at the time they first make contractual arrangements may be for others to determine, (p. 85).”
CONCLUSIONS
i) It is not in issue that it is possible for LCF to perform some public functions and some private functions. In this case it is contended that this was what has been happening in regard to those residents who are privately funded and those residents who are publicly funded. But in this case except for the resources needed to fund the residents of the different occupants of Le Court, there is no material distinction between the nature of the services LCF has provided for residents funded by a local authority and those provided to residents funded privately. While the degree of public funding of the activities of an otherwise private body is certainly relevant as to the nature of the functions performed, by itself it is not determinative of whether the functions are public or private. Here we found the case of R v HM Treasury, Ex parte Cambridge University [2000] 1WLR 2514 (ECJ) at p.p. 2523 2534/5, relied on by Mr Henderson, an interesting illustration in relation to European Union legislation in different terms to section 6.
ii) There is no other evidence of there being a public flavour to the functions of LCF or LCF itself. LCF is not standing in the shoes of the local authorities. Section 26 of the NAA provides statutory authority for the actions of the local authorities but it provides LCF with no powers. LCF is not exercising statutory powers in performing functions for the appellants.
iii) In truth, all that Mr Gordon can rely upon is the fact that if LCF is not performing a public function the appellants would not be able to rely upon Article 8 as against LCF. However, this is a circular argument. If LCF was performing a public function, that would mean that the appellants could rely in relation to that function on Article 8, but, if the situation is otherwise, Article 8 cannot change the appropriate classification of the function. On the approach adopted in Donoghue, it can be said that LCF is clearly not performing any public function. Stanley Burnton J’s conclusion as to this was correct.
THE PROCEDURE ADOPTED BY THE CLAIMANTS
“The law on the scope of judicial review cannot, however, be determinative. First, it will be necessary for the English courts to take into account the Strasbourg jurisprudence which identifies the bodies whose actions engage the responsibility of the State for the purpose of the Convention, which, as we shall see, differs from the judicial review criteria in material respects. That jurisprudence also makes clear that the Convention’s reach is determined by reference to ‘autonomous’ concepts of Convention law and not by the manner in which national law classifies bodies or their acts. Secondly, notwithstanding the Home Secretary’s statement that ‘the concepts are reasonably clear’ the way English courts have drawn the distinction between ‘public’ and ‘private’ for the purpose of judicial review produce a complicated and not all together consistent body of cases, using a variety of tests. Thirdly, as we will be seeing, not all the acts of ’obvious’ public authorities are treated as ‘public’ for the purposes of judicial review. In contrast the HRA will apply to all their acts. Nevertheless, the case law on the judicial review jurisdiction is instructive.”
“54.1 Scope and Interpretation
(1) This Part contains rules about judicial review.
(2) In this Part –
(a) a “claim for judicial review” means a claim to review the lawfulness of –
(i) an enactment; or
(ii) a decision, action or failure to act in relation to the exercise of a public function.
. . .
54.2 When This Part Must Be Used
The judicial review procedure must be used in a claim for judicial review where the claimant is seeking –
(a) a mandatory order;
(b) a prohibiting order;
(c) a quashing order; or
(d) an injunction under section 30 of the Supreme Court Art 1981 (restraining a person from acting in any office in which he is not entitled to act).
54.20 Transfer
The court may
(a) order a claim to continue as if it had not been started under this Part; and
(b) where it does so, give directions about the future management of the claim.
(Part 30 (transfer) applies to transfers to and from the Administrative Court)”