11.Memorandum from DIAL UK
DIAL UK is the national organisation for a network
of 150 independent disability advice centres run by and for disabled
people in England, Scotland and Wales.
The network exists to address the poverty and
social exclusion that disabled people face by providing them with
specialist high quality information and advice services, by raising
awareness of the needs of disabled people and by campaigning on
national issues that directly affect the lives of disabled people.
Last year, the 1,600 DIAL advisers helped almost
a quarter of a million disabled people to access their rights
and entitlements and to live more independent lives.
SUMMARY OF
KEY CONCLUSIONS
1. The current interpretation by the Courts
of the meaning of public authority is not the right one. It leaves
the UK in breach of Article 13 of the European Convention on Human
Rights.
2. The impact on the protection of human
rights of the definition of public authority applied by the Courts
is to leave many of our most vulnerable citizens without access
to remedy for breach of Convention rights, including those under
Articles 2, 3, 8, 13 and 14.
3. The Courts should apply a broad and flexible
functional test of amenability and public function, bringing private
providers into the Courts' jurisdiction, and use proportionality
as method of analysis where Convention rights are in issue; Parliament
should enact legislation to ensure that those currently excluded
are clearly covered by the remit of the Human Rights Act; a Human
Rights Commission should be established.
4. Charity law, private law and criminal
law all fail to provide adequate protection; other measures introduced
by Government do not satisfy Article 13. There are no alternative
means available that could effectively fill the gap in human rights
protection left by the Leonard Cheshire decision.
1. Whether in your view the meaning of public
authority under the Human Rights Act, as interpreted by the Courts,
is the right one?
1.1 In our view the current interpretation
by the Courts of the meaning of public authority is not the right
one.
1.2 The Human Rights Act (HRA) was designed
to "bring rights home" to the UK[1].
Article 13 of the European Convention on Human Rights (the Convention)
was not included in Schedule 1 HRA because the HRA itself was
intended to provide effective national remedy for breach of convention
rights. Indeed, the Government pointed out in mitigation in Z
v UK[2]
that from October 2000, when the HRA came into force, a victim
would be able to bring proceedings in the Courts against a public
authority for a breach of a substantive right and the Courts would
be empowered to award damages.[3]
1.3 Given the current position in English
common law, however, the same does not apply to a disabled or
older person placed by their local or health authority in private
residential or nursing care.
1.4 The resulting loss of protection for
many thousands[4]
of our most vulnerable citizens flies in the face of the stated
intentions of Ministers and Parliament in enacting the HRA, [5]and
contravenes the fundamental object and purpose underlying the
Convention. [6]
1.5 In our opinion, the current interpretation
by the Courts of the meaning of public authority is wholly inadequate
and leaves the UK in breach of Article 13 of the Convention.
2. What, in practice, might be expected to
be the impact of the definition of public authority applied by
the Courts for the protection of human rights?
2.1 In line with successive governments'
aims to "promote the development of a flourishing independent
sector alongside good quality public services",[7]
and in response to changing funding arrangements,[8]
there has been a very significant shift away from direct provision
of residential and nursing care by the statutory authorities and
towards provision by the private sector. [9]
2.2 Like the Leonard Cheshire claimants,
many people who have physical or sensory impairments, learning
disabilities or mental health problems find themselves in publicly-funded
private residential accommodation: of 54,000 supported residents
aged between 18 and 64 (inclusive) at 31 March 2000, 57 per cent
were people with learning disabilities, a fifth were people with
mental health problems, and 18 per cent were physically/sensorily
disabled adults. Around 4 per cent had the client group "other".
(The number of supported residents with mental health problems
in independent nursing homes almost doubled from 850 to 1,600
in 2000, probably reflecting the closure of large NHS institutions.[10])
In addition, of the 482,250 older people (about 1 in 20 of all
elderly people) resident in care homes in 1999, 354,000 were publicly
financed. [11]
2.3 These people are by definition some
of our most vulnerable citizens. Whilst it is recognised that
many private homes provide the highest quality of care, and that
regulatory and inspection systems are in place,[12]
inevitably there will be occasions when things go wrong. There
must therefore be concern about the accountability of private
service providers in relation to their residents.
Article 3
2.4 A recent inspection of Health Authority
Registration and Inspection Units covering nursing homes found
that "arrangements for registration, inspection and ensuring
compliance were haphazard and failed to provide a safe system
to adequately protect residents".[13]
A number of high-profile cases of abuse have been identified.
2.5 For Article 3 of the Convention[14]
to become engaged, the level of inhuman or degrading treatment
must "attain a minimum level of severity'.[15]
Degrading treatment is defined as "treatment/punishment that
arouses in the victim a feeling of fear, anguish and inferiority
capable of humiliating and debasing the victim and possibly breaking
his or her physical or moral resistance".[16]
Unfortunately, examples of abuse that might arguably come into
this category are not unknown.
Article 2
2.6 There is also evidence that relocating
institutionalised vulnerable people to a new residence may have
a dramatic effect on their mental health and life expectancy,
[17]some
research suggesting that the increase in mortality rates might
be as high as 35 per cent. [18]
2.7 Under Article 2 of the Convention,[19]
the State has both negative and positive duties: not only must
it refrain from taking life, it must also "take all appropriate
steps to safeguard the lives of those within its jurisdiction".[20]
Where a vulnerable resident is threatened with inappropriate removal
to a new residence, increased risk of mortality may be in issue.
2.8 Articles 2 and 3 are among the strongest
and most important Convention rights. States may not derogate
from their requirements and breach, once found, cannot be justified.
Article 8
2.9 Residents may also, depending on their
circumstances, have an arguable case for alleging breach of Article
8 of the Convention.[21]
This was recognised in Coughlan[22],
where it was stated that: "The judge was entitled to treat
this as a case where the Health Authority's conduct was in breach
of Article 8 and was not justified by the provisions of Article
8(2)."[23]
2.10 These vulnerable residents and their
advocates are nevertheless denied the opportunity to raise any
Convention arguments in public law following the Leonard Cheshire
line of cases.
Article 13
2.11 Parliament has responded to public
concern by enacting the Care Standards Act 2000, and government
by introducing improvements to complaints procedures and, inter
alia, the National Service Frameworks for Older People and for
Mental Health.[24]
2.12 However, these measures are insufficient
to satisfy Article 13.[25]
The Government accepted in Z v UK[26]
that the potential alternative remedies available to the applicants,
including payment of compensation from the Criminal Injuries Compensation
Board, the possibility of complaining to the Local Government
Ombudsman, or following the relevant complaints procedure, were
insufficient, either alone or cumulatively, to satisfy Article
13 in a case where there had been serious violation of one of
the most important convention rights.[27]
The European Court of Human Rights agreed, and found violation
of Article 13[28]
in that case.
Article 14
2.13 Article 14 of the Convention[29]
constitutes one element (non-discrimination) of each of the rights
safeguarded by the Convention, and can only be applied in connection
with one of those rights. However, breach of Article 14 can be
found even where there is no violation of a substantive right[30].
The facts in issue must "fall within the ambit" of the
other Convention provisions[31].
There must be differential treatment whereby the applicant has
been treated less favourably than others who are in a similar
or analogous situation.[32]
2.14 The position of publicly-funded, privately-accommodated
residents in relation to the English legal system is markedly
different to, and less favourable than, the otherwise identical
situation of publicly-funded residents in publicly-provided accommodation.
Compare the response of the court in Coughlan (where accommodation
was provided by the Health Authority)—with its in-depth
scrutiny of the health and social care divide, legitimate expectation
and human rights—with that in Servite[33]
and Leonard Cheshire, where the substantive issues are
not reached, despite recognition that the applicants may have
no other means to challenge their providers' decisions. The fact
that all residents in public accommodation have potential access
to court, whilst those in private accommodation do not, arguably
breaches Article 14 in conjunction with Article 6(1), whether
or not there is held to be breach of Article 6(1) in an individual
case.
3. WHAT
STEPS, IF
ANY, SHOULD
BE TAKEN
TO ADDRESS
ANY POTENTIAL
GAPS IN
THE HUMAN
RIGHTS ACT
PROTECTION AND
ACCOUNTABILITY,
FOLLOWING THE
LEONARD CHESHIRE
CASE?
The Courts
3.1 The Courts should:
— apply a "broad and flexible"
functional test of amenability and "public function",
bringing private providers into the court's jurisdiction;
— give due weight to legitimate expectation
arguments;[34]
— use proportionality as method of
analysis where Convention rights are in issue[35];
thereby providing publicly-funded, privately-accommodated
residents with effective access to court and potential remedy
in public law in line with Articles 6, 13 and 14 of the Convention.
3.2 The Courts should also consider their
position under s6 HRA when dealing with private law matters, so
as to ensure that Convention rights are protected by horizontal
application of the Human Rights Act and proportionality analysis
in appropriate cases.[36]
3.3 By doing so, they will begin to honour
their s6 HRA obligations to act compatibly with the Convention,
including Article 13.
Parliament
3.4 In addition, Parliament should either
enact new legislation or amend HRA to confirm its original intent
and to ensure the UK's compliance with Article 13, in such a way
that those citizens currently excluded from remedy for breach
of a Convention right are clearly covered by the remit of the
Act.
Human Rights Commission
3.5 The above steps are essential for the
protection of disabled and older people living in privately-provided
residential settings. However, litigation should be seen as a
last resort in the protection of their human rights. Potential
claimants in this area of law are rarely in a position to access
the necessary advice and representation to take their case, may
remain in unacceptable situations for long periods whilst awaiting
judgement, and are likely to be strongly discouraged by fear of
reprisal from those on whom they are dependent.
3.6 We would therefore support the establishment
of a Human Rights Commission to raise awareness of human rights
issues; provide advice, guidance and training; take test cases;
and work towards establishing a human rights culture in which
breaches of Convention rights are less likely to occur.
4. WHETHER
ANY ALTERNATIVE
MEANS, APART
FROM SECTION
6(3)(B), (SUCH
AS CONTRACTUAL
TERMS) COULD
EFFECTIVELY FILL
ANY POTENTIAL
GAPS IN
HUMAN RIGHTS
PROTECTION?
4.1 Servite[37]
was argued on the assumption that the applicants had no private
law cause of action against Servite Houses[38].
Moses J suggests that the solution may be
— the imposition of public law standards
on private bodies whose powers stem from contract; or
— the imposition of greater control
over public authorities at the time they first make contractual
arrangements.[39]
4.2 Burnton J, in the Administrative Court,
considers that "[a]part from the charities jurisdiction of
the High Court, if Leonard Cheshire is not . . . a public authority,
the claimants would have no status to challenge, and no grounds
to challenge, the decisions of the Trustees that they seek to
impugn."[40]
His suggested solution would be for the courts to discharge their
functions as public authorities under the HRA by
— developing private law so as to provide
remedies for those whose Convention rights have been interfered
with.[41]
4.3 Burnton J also sees significant parallels
between the obligations of charities and those of public authorities:
both are required to act in the public interest or in the interests
of a section of the public.
4.4 Lord Woolf CJ in the Appeal Court argues:[42]
— The local authority remains under
an obligation under section 21 of the NAA and retains an obligation
under Article 8 to the appellants even though it has used its
powers under section 26 to use LCF as a provider;
— In addition the appellants have their
contractual rights against LCF in any event;
— . . . after the HRA came into force,
. . . 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 . . . ;
— Then not only could the local authority
rely on the contract, but possibly the resident could also do
so as a person for whose benefit the contract was made.
Charity Law
4.5 Charity proceedings are statutorily
defined[43]
as "proceedings in any court in England or Wales brought
under the court's jurisdiction with respect to charities, or brought
under the court's jurisdiction with respect to trusts in relation
to the administration of a trust for charitable purposes."
Such proceedings may be brought by (inter alia) "any person
interested in the charity."[44]
In the absence of clear definition in caselaw, it seems that the
expression would include a recipient of the charity's benefits.[45]
Acts by trustees of a charity in the exercise of its functions
that cause Convention rights to be infringed may constitute breaches
of trust, and if so, proceedings to challenge them would be charity
proceedings.[46]
4.6 Whether or not this procedure would
provide residents with access to a court would depend on the nature
and circumstances of the individual case. At best, it has potential
to apply only to a small percentage of publicly-funded residents
placed in private accommodation. At 31 March 2000, 40 per cent
of the 24,800 independent residential homes in England, providing
51 per cent of independent residential places, were run by the
private (commercial) sector; 27 per cent, providing just 17 per
cent of places, were run by the voluntary (charitable) sector.[47]
Contract
4.7 The Office of Fair Trading Report into
Older People as Consumers in Care Homes[48]
found that less than one in five residents was aware of being
a signatory to a contract.[49]
Two thirds of residents either did not know or could not remember
what sort of areas were covered by their agreement with the home.[50]
Where respondents did know about a contract, it rarely—if
ever—specified what they could expect from the home.[51]
There were also specific complaints alleging unfair standard terms
under the Unfair Terms in Consumer Contracts Regulations 1994.[52]
4.8 Where a local authority purchases care
services from an independent provider (82 per cent of publicly-funded
places as at 31 March 2000[53]),
the residents affected would not generally be a party to these
arrangements unless they had been specially joined to a tripartite
contract. The OFT was told by the Audit Commission that the use
of such tripartite contracts is increasing.[54]
However, local authorities may be under pressure from care providers
to minimise the contractual obligations imposed on residential
home owners so as to increase the profitability of the commercial
sector;[55]
and the legal status of tripartite contracts is, in any case,
questionable.[56]
4.9 In other cases, there may be two concurrent
contracts, one between the resident and the care-home owner and
the other between the care-home owner and the local authority,[57]
as in the case of Elizabeth Heather's licence agreement with Leonard
Cheshire.[58]
Burnton J postpones consideration of the enforceability of this
agreement for "another day,"[59]
and Lord Woolf merely mentions the existence of the contract.
However, accommodation provided under Part III of NAA48 is not
included in the list of excluded licences under section 3A of
the Protection from Eviction Act 1977. This would suggest that
it may be necessary for Leonard Cheshire to obtain a court order
to terminate the licence, thus potentially providing opportunity
for Ms Heather, and the minority of residents in this position,
to raise an Article 8 defence under HRA section 7(1)(b).
4.10 It is well established that there can
be no legally enforceable contract between a local authority and
a service user;[60]
nor does the fact that the resident is being charged by the local
authority for the provision of services give rise to such a contract.[61]
4.11 These residents, if they are party
to a contract at all, are in an overwhelmingly weak position in
any contractual negotiation, because of their vulnerability and
circumstances on admission to care. This imbalance is in theory
redressed by the element of consumer choice introduced by the
privatisation of service provision;[62]
but in contrast to the balancing exercise applied to public authority
acts in public law, private contract law has traditionally taken
a more "amoral" view of contract enforcement which is
unlikely to take such circumstances into account.
Contracts (Rights of Third Parties) Act
4.12 One development which may have the
potential to strengthen the resident's position in contract is
the introduction of the Contracts (Rights of Third Parties) Act
1999. Under the Act, a person who is not a party to a contract
may enforce the contract, or any provision of it, if the contract
expressly so provides or "if it purports to confer a benefit"
on them.[63]
Thus, potentially, a resident may take action under the Act to
enforce the terms of the contract between her placing local authority
and her private accommodation provider, and, if successful, avail
herself of any remedy that would have been available for breach
of contract had she been a party to the contract.[64]
Further, under section 2, in some circumstances a term of a contract
may not be varied or cancelled without the consent of a third
party who has acquired rights of enforcement under the Act; that
consent can only be dispensed with by order of a court.
4.13 However, these rights may be restricted.
Firstly, the Act applies only to contracts concluded after 11
May 2000, and so will not apply to local authority supported residents
already in care at that time. In addition, contracting parties
may exclude the benefit of a specific contract or contract term
from the ambit of the Act, or include an express term stating
that the contract may be rescinded or varied without the consent
of the third party.[65]
In R v London Borough of Barking and Dagenham ex p Lloyd.[66]
factually similar to Servite and Leonard Cheshire,
it was noted that "[t]he Contracts (Rights of Third Parties)
Act 1999 is not to apply to the contract of sale" between
the defendant local authority and a housing association.
Negligence
4.14 If neither charity law nor contract
can be of assistance, the resident is left, in an appropriate
case, with the possibility of suing the service provider in the
tort of negligence, with all the attendant difficulties that such
an action would entail;[67]
or of attempting criminal prosecution.
Criminal prosecution
4.15 In a recent case of severe neglect,
involving a confused 89-year-old man whose pressure sores had
rotted the flesh down to his bones, the Thames Valley police detective
who took the case to court commented: "Unlike the laws available
to the police to pursue those responsible for child abuse, there
is no law available to protect vulnerable adults from exactly
the same abuse . . . The criminal law as it stands today provides
for cases of assault, such as actual bodily harm and grievous
bodily harm, but for any prosecution of these offences to succeed,
an element of intention to cause harm must be proved." In
the event, the dementia of the victim was exploited in order to
bring a criminal prosecution for ill treatment and wilful neglect
of a mentally ill patient under the Mental Health Act 1983, "the
only criminal law available in this country that enables the police
to pursue these people." The homeowner served 12 weeks of
a nine-month sentence.[68]
4.16 It would seem, therefore, that the
majority of these residents are unlikely to find any cause of
action in private or criminal law. It is well established that
they will not be able to present their Convention case as a free-standing
cause of action in private law,[69]
and they are excluded from recourse to public law by virtue of
the Leonard Cheshire line of cases.
Conclusion
4.17 As Moses J suspected, this presents
an "inadequacy of response to the plight of these applicants;"
[70]there
are no alternative means available, apart from section 6(3)(b),
that could effectively fill the gap in human rights protection
left by the Leonard Cheshire decision.
April 2003
1 White Paper Rights Brought Home: The Human Rights
Bill, Cm 7382, 1997. Back
2
Z v UK Application no 29392/95, 10 May 2001. Back
3
Z para 107. Back
4
see para 2.2 below. Back
5
HC Debates, 16 Feb 1998, col 773. Back
6
Article 1 reads: "The High Contracting Parties shall secure
to everyone within their jurisdiction the rights and freedoms
defined in section 1 of this Convention". Back
7
White paper Caring for People Cm849 (1989) 1.11. Back
8
Clements L, Community Care and the Law, 2nd Ed, Legal Action Group,
London, 2000, 230. Back
9
The number of NHS long-stay beds has reduced by 38 per cent since
1983 (a loss of 21,300 beds) and the number of private nursing
home places has increased by 900 per cent (an increase of 141,000
beds). Only 8 per cent of these additional private nursing home
places are paid for by Health Authorities. The rest are paid for
by individuals, or by local authorities. Similarly, in 2000, the
independent sector provided 92 per cent of all homes and 84 per
cent of places in residential care homes. 82 per cent of local
authority funded residents were in independent sector homes in
2000, as compared to 71 per cent in 1996 and 20 per cent in 1993. Back
10
Community Care Statistics 2000, 44-45. Back
11
Royal Commission on Long Term Care, With Respect to Old Age-Rights
and Responsibilities, CM4192-1 HMSO, London, Table 2.1. Back
12
eg The Registered Homes Act 1984, the Care Standards Act 2000,
HSG(95)41, LAC(95)12. Back
13
Safe Enough? Inspection of Health Authority Registration and Inspection
Units 2000, Social Services Inspectorate, www.doh.gov.uk/scg/safeenough.htm,
20/8/01, 1.1. Back
14
Article 3 reads: "No one shall be subjected to torture or
to inhuman or degrading treatment or punishment". Back
15
Ireland v UK (1979-80) 2 EHRR 25, 162. Back
16
ibid. Back
17
eg International Journal of Geriatric Psychiatry (1993)
Vol 8, 521; "Elderly patients die within weeks of transfer"
(1994) Times 7 July Back
18
"Relocation of the aged and disabled: A mortality study"
Journal of American Geriatric Society, Vol 11, 185. Back
19
Article 2(1) reads: "Everyone's right to life shall be protected
by law..." Back
20
Keenan v UK App. 27229/95, 3 April 2001, 88. Back
21
Article 8(1) reads: "Everyone has the right to respect for
his private and family life, his home and his correspondence." Back
22
R v North and East Devon Health Authority ex p Coughlan
[1999] 2 CCLR 285. Back
23
ibid, para 91. Back
24
www.doh.goc.uk/nsf. Back
25
Article 13 reads: "Everyone whose rights and freedoms as
set forth in this Convention are violated shall have an effective
remedy before a national authority notwithstanding that the violation
has been committed by persons acting in an official capacity." Back
26
See footnote 2 above. Back
27
ibid 107. Back
28
ibid 111. Back
29
Article 14 reads: "The enjoyment of the rights and freedoms
set forth in this Convention shall be secured without discrimination
on any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with
a national minority, property, birth or other status." Back
30
eg Abdulaziz, Cabales and Balkandali (1985) 7 EHRR 471. Back
31
Rasmussen v Denmark (1985) 7 EHRR 371. Back
32
eg Marckx v Belgium (1979-80) 2 EHRR 330. Back
33
R v Servite Houses and the London Borough of Wandsworth Council
ex p Goldsmith and Chatting [2001] QBD 12 May 2000 Back
34
see Coughlan. Back
35
see R v Secretary of State for the Home department ex p Daly
[2001] UKHL 26. Back
36
see Venables and another v News Group Newspapers Ltd and others
[2001] 1 All ER 908, para 10: "The defendant newspapers cannot
sensibly be said to come within the definition of public authority
in s6(1) of the HRA. Consequently, Convention rights are not directly
enforceable against them. That is not however, the end of the
matter, since the court is a public authority and must itself
act in a way compatible with the Convention and have regard to
European jurisprudence." Back
37
See footnote 31 above. Back
38
Servite p 1. Back
39
Servite final paragraph. Back
40
Leonard Cheshire para 19. Back
41
Leonard Cheshire para 106. Back
42
ibid para 33. Back
43
Charities Act 1993 s33(8). Back
44
ibid s33(1). Back
45
Picarda H The Law and Practice Relating to Charities 2nd
ed, Butterworths London 1995, 648. Back
46
Burnton J, Leonard Cheshire para 97. Back
47
National Statistics/Dept of Health, Community Care Statistics
2000: Residential Personal Social Services for Adults, England,
8. Back
48
Office of fair Trading, Older People as Consumers in Care Homes,
OFT 242 October 1998. Back
49
ibid 5.2. Back
50
ibid 5.2. Back
51
ibid 5.7. Back
52
ibid 5.9. Back
53
Community Care Statistics, 44. Back
54
OFT 5.3. Back
55
Palmer E "Residential care: rights of the elderly and the
Contracts (Rights of Third Parties) Act 1999", [2000] JSWFL
22(4) 461, 464. Back
56
Palmer 465. Back
57
OFT para 5.3. Back
58
Leonard Cheshire para 37. Back
59
Leonard Cheshire para 107. Back
60
R v Kensington LBC ex p Birdwood [1976] LGR 424. Back
61
Wilmore and Wilmore (Trading as Lissenden Poultry) v South
Eastern Electricity Board [1957] 2 LR 375. Back
62
Palmer, 472. Back
63
s1 (1)(a-b). Back
64
s1(5). Back
65
s2(3)(a). Back
66
CO/3491/97 QBD 31 July 2000, para 28. Back
67
Palmer, 471. Back
68
"Tide of cruelty sweeps through our care homes," The
Observer, 18 February 2001. Back
69
Venables and another v News Group Newspapers Ltd and
others [2001] 1 All ER 101, 27. Back
70
Servite p 17. Back
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