Judgments - YL (by her litigation friend the Official Solicitor) (FC) (Appellant) v. Birmingham City Council and others (Respondents)

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    32.  It has been suggested that vulnerable elderly residents in care homes are in need of the extra protection that potential liability of private care home managers under section 6 of the 1998 Act would provide, and that section 6(3)(b) should be given a wide and generous construction accordingly. There is nothing, in my opinion, in this suggestion. It is common ground that it is a responsibility of government and, through government, of local authorities to establish a regulatory framework to provide legal remedies to those in care homes whose rights under the Convention might be breached by those in charge of them (see the cases cited by Lord Mance in paragraphs 93 and 94 of his opinion). This regulatory framework is in place. A feature, or consequence, of it is that an obligation by Southern Cross to observe the Convention rights of residents is an express term of the agreement between the council and Southern Cross and is incorporated into the agreement between Southern Cross and YL. Any breach by Southern Cross of YL's Convention rights would give YL a cause of action for breach of contract under ordinary domestic law. No one has suggested that the contractual arrangements between the council and Southern Cross and between Southern Cross and YL are not typical. There is, in my opinion, no need to depart from the ordinary meaning of "functions of a public nature" in order to provide extra protection to YL and those like her. I would add that the ability of an inmate in a care home to challenge on article 8 grounds the efficacy of a notice to quit that was otherwise contractually effective would be subject to the same considerations that were explored and ruled upon by this House in Kay v Lambeth London Borough Council [2006] 2 AC 465.

    33.  For the reasons I have given I am unable to conclude that Southern Cross, in managing its care homes, is carrying on a function of a "public nature" for section 6(3)(b) purposes, whether the contractual charges are payable in respect of residents who are privately funded or are met out of public funds.

    34.  As to the act of Southern Cross that gave rise to this litigation, namely, the service of a notice terminating the agreement under which YL was contractually entitled to remain in the care home, the notice was served in purported reliance on a contractual provision in a private law agreement. It affected no one but the parties to the agreement. I do not see how its nature could be thought to be anything other than private. In Aston Cantlow and Wilmcote with Billesley Parochial Church Council v. Wallbank [2004] 1 AC 546 (referred to by Lord Mance in paragraph 87 of his opinion) the act, or acts, of the Parochial Church Council held by the House to be private in nature were the steps taken to recover from private individuals the cost of repair to the chancel of the parish church. Lord Nicholls of Birkenhead accepted that to some extent the state of repair of the church building affected rights of the public but said that a contract by the PCC with a builder could hardly be regarded as a public act (para 16). Lord Hope of Craighead, explaining why the nature of the acts of the PCC were private, said that the liability of the defendants, lay rectors, to repair the chancel arose as a matter of private law (para 63) He went on, at para 64:

    "The nature of the act is to be found in the nature of the obligation which the PCC is seeking to enforce. It is seeking to enforce a civil debt"

Lord Hope's emphasis was on the private law nature of the obligations sought to be enforced by the PCC. So here, the notice served by Southern Cross, whether rightly or wrongly served, falls, in my opinion, to be tested by reference to YL's rights and Southern Cross' obligations under the agreement between them; by reference, that is to say, to private law. It was, in my opinion, an act the nature of which, for section 6(5) purposes, was private.

    35.  For these reasons, supplemental to those of my noble and learned friends Lord Mance and Lord Neuberger, with which I am in full agreement, I would dismiss this appeal.

BARONESS HALE OF RICHMOND

My Lords,

    36.  Many services which used to be provided by agencies of the state are now provided, not by employees of central or local government, but by voluntary organisations or private enterprise under contract with central or local government. The issue before us is of great importance, both to the many hundreds of thousands of clients of those services and to the organisations and businesses which provide them. To what extent, if at all, are they covered by the Human Rights Act 1998 ('the 1998 Act')?

    37.  Under section 6(1) of the Act, it is unlawful for a public authority to act in a way which is incompatible with a Convention right. 'Public authority' is nowhere exhaustively defined, but by section 6(3)(b) it includes 'any person certain of whose functions are functions of a public nature'. However, in relation to any particular act, section 6(5) provides that 'a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private'. The broad shape of the section is clear. 'Core' public authorities, which are wholly 'public' in their nature, have to act compatibly with the Convention in everything they do. Other bodies, only certain of whose functions are 'of a public nature' have to act compatibly with the Convention, unless the nature of the particular act complained of is private. The law is easy to state but difficult to apply in individual cases such as this.

    The facts

    38.  The appellant is an 84 year old woman with Alzheimer's disease. She and her family have lived in the area governed by Birmingham City Council ('the council') for many years. Since January 2006 she has been living in a nursing home owned and run by the second respondent ('the company'), a limited company which provides approximately 29,000 care home beds in the United Kingdom. Of these approximately 80% are funded by local authorities. When these proceedings began, 60 of the 72 residents in the appellant's home, including the appellant, were funded by local authorities and 12 paid privately.

    39.  The company has a contract with the council ('the service provision contract'). Under this, the company undertakes to provide accommodation for the residents placed with them by the council in accordance with the terms of the agreement and of the council's care plan for each individual resident. In return, the council agrees to pay the 'SSD price' for each 'SSD resident' (SSD stands for Social Services Department). In addition to residential care, the company also undertakes to provide the appropriate level of nursing care assessed to be needed for each resident, and the local NHS Primary Care Trust agrees to pay for this.

    40.  Among the many detailed provisions about the standards of service to be provided are two of particular relevance to this case. Under clause 24.7.2, the service provider may only give notice of termination of a placement 'for a good reason'. And under clause 55.1:

    'The Service Provider shall and shall ensure that its employees agents and officers shall at all times act in a way which is compatible with the Convention Rights within the meaning of section 1 of the Human Rights Act 1998.'

    41.  The recitals to the agreement refer to the statutory duty of the council 'to make arrangements for providing residential accommodation for persons in need of care and attention which is not otherwise available to them pursuant to section 21 of the National Assistance Act 1948' (clause 4.1) and to the duty of the Primary Care Trust 'to assess and provide for the Registered Nursing Care needs of the SSD residents who are resident at the care home, pursuant to the directions and guidance' of the Secretary of State (clause 4.3). I shall return to the statutory framework in due course.

    42.  For each SSD resident there is also a care home placement agreement, made between the council, the company and the resident (or someone acting on her behalf). This is expressly subject to and includes the specification and conditions of the current service provision contract between the council and the company. The company agrees to provide a service to the resident in accordance with that contract and with the individual resident's care plan. The resident agrees to pay direct to the council (unless directed otherwise) whatever sums the council has determined should be paid by the resident. The council undertakes to meet its obligations under the service provision contract, which expressly include arranging assessments and formal reviews of the resident's needs.

    43.  Coupled with the placement agreement there may also be a third party funding agreement. Under this a third party (usually a relative) agrees to pay a weekly 'top up' amount 'because the home chosen has a fee which is greater than the council would usually expect to pay'. In this case, the appellant's daughter agreed to pay an extra £35 per week, on top of the SSD price. The NHS contribution to the costs of nursing care was assessed at £129 per week.

    44.  In addition to the placement agreement, there is an agreement between the company, the council, the resident and the resident's receiver detailing, among other things, the specific accommodation and services to be provided and the payment arrangements. This agreement is to continue in force until terminated by the death of the resident or by four weeks' notice in writing (clause 7.1). The company undertakes that it will 'normally' only give notice if the fees are not promptly paid, the home is no longer able to meet the resident's needs, or the company 'considers the circumstances or behaviour of the resident to be seriously detrimental to the home or the welfare of other residents' (clause 7.2).

    45.  On 21 June 2006, the company wrote to the appellant's daughter stating that 'in light of the continuing and irreconcilable breakdown in relationship between yourself and the home management and staff I am writing to formally give 28 days written notice regarding your mother'. This was prompted by concerns, which are disputed, about the appellant's husband's behaviour towards the appellant and her daughter's behaviour towards staff. When it became apparent that the company intended to serve a formal notice to quit, the Official Solicitor launched proceedings on the appellant's behalf under the jurisdiction of the Family Division of the High Court to make declarations as to the best interests of people who are unable to take decisions for themselves.

    46.  Among the declarations sought was a declaration that the company, in providing accommodation and care for the appellant, was exercising public functions for the purpose of section 6 of the 1998 Act. Ryder J ordered that this be tried as a preliminary issue. Both the High Court [2006] EWHC 2681 (Fam) and the Court of Appeal [2007] EWCA Civ 26; [2007] 2 WLR 1097 decided this issue against the appellant, following the previous decision of the Court of Appeal in R (Heather) v Leonard Cheshire Foundation [2002] EWCA Civ 366; [2002] 2 All ER 936. Recognising the importance of the point, which has attracted considerable academic comment, the Court of Appeal gave leave to appeal to this House.

    47.  Happily, following the first hearing in the Family Division, the council agreed to fund supervised contact between the appellant, her daughter and husband. The company has since withdrawn the request to remove the appellant from the home. The parties are now in discussions about arrangements for unsupervised visits. This is welcome, because a consultant in the psychiatry of old age has reported that the appellant would certainly deteriorate clinically if she had to transfer to an unfamiliar care setting. It is also likely that any new care setting would be further away from her family home, making visiting more difficult for her 83 year old husband, who visits her every day. He therefore has an independent interest in his own human rights in these proceedings.

    48.  It is to be hoped, therefore, that the future of this appellant is now more secure. The issue remains of great importance for the many thousands of other 'SSD residents' who are looked after in care homes run by private companies or voluntary organisations.

    The statutory framework

    49.  The National Assistance Act 1948 was part of the package of measures which created the modern welfare state. It stood alongside the Children Act 1948, which is the origin of our modern child care services, the National Insurance Act 1946, which laid the foundations of the modern social security system, and the National Health Service Act 1946, which created the National Health Service. The Education Act 1944 had already led the way in the fight against what Sir William Beveridge had called the 'five giants on the road of reconstruction' - Want, Disease, Ignorance, Squalor and Idleness (Social Insurance and Allied Services, Report by Sir William Beveridge (1942) (Cmd 6404). The education and health services were universal, in the sense that they were available to all, and originally without any charge, irrespective of ability to pay. But people who could afford to do so remained, and still remain, free to make their own arrangements if they wish. The social services were more limited, in that it was expected that families would continue to look after their children and their elderly or disabled relatives. But the social services were there to provide a safety net for those whose families could not look after them and from the start people were expected to pay what they could afford for the accommodation with which they or their children were provided. Once again, of course, there was nothing to prevent those with the means to do so from making their own arrangements.

    50.  Section 21(1)(a) of the National Assistance Act 1948 originally required each local authority to provide 'residential accommodation for persons who by reason of age, infirmity or any other circumstances are in need of care and attention which is not otherwise available to them' . Accommodation could be provided either in homes owned and run by the authority, or by another local authority (section 21(4)), or by a voluntary organisation (section 26), but not by private persons. Residents were required to pay for their local authority accommodation according to their ability to pay (section 22). Where accommodation was arranged with a voluntary organisation, the local authority was liable to pay for it and could then recoup a means-tested contribution from the resident (section 26(2) and (3)). Schemes were later replaced with ministerial approval and directions (Local Government Act 1972, section 195(3)) and the relevant words of section 21(1) amended to read '. . . 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 . . . .' (1972 Act, section 195(6), Schedule 23, para 2(1)). Ministerial directions required that provision be made for people ordinarily resident in the area (DHSS Local Authority Circular 13/74).

    51.  But supply was never able to match demand. Many older people were accommodated in private residential homes but paid for by the state, through the means tested benefits system rather than by local authorities. This was widely regarded as inefficient and expensive, because there was no professional assessment of whether the resident really needed this expensive form of care, rather than to be helped to remain in her own home, nor was there any systematic control of the cost (see Audit Commission, Making a Reality of Community Care, (1986) Griffiths, Community Care: Agenda for Action: A Report to The Secretary of State for Social Services, (1988). The result was Part III of the National Health Service and Community Care Act 1990. Under this, each local authority must prepare and publish a strategic plan for the provision of community care services in their area (section 46). They were instructed to develop a 'mixed economy of care' making use of voluntary, not for profit and private providers whenever this was most cost-effective. They were to move away from the role of exclusive service provider and into the role of service arranger and procurer (Department of Health and others, Caring for People: Community Care in the Next Decade and Beyond (1989) (Cm 849). To this end, section 26 of the 1948 Act was amended to allow them to place residents with private providers as well as with voluntary organisations. The charging arrangements remained broadly the same, primary liability remaining with the local authority.

    52.  At the same time, local authorities were placed under a duty to carry out an assessment of the need for community care services of any person who might be in need of them (1990 Act, section 47(1)(a)) and then to decide whether those needs called for the provision by them of any such services (section 47(1)(b). 'Community care services' include arranging or providing accommodation under section 21(1) of the 1948 Act (section 46(3)). If the person may also need health care under the National Health Service Act 1977, the local authority must invite the relevant health body to assist in the assessment. A large slice of the social security budget was transferred to local authorities to enable them to meet these new responsibilities.

    53.  The appellant's case was a good example of how the system is supposed to work. She was first assessed as needing residential care in January 2005, but the family decided to continue looking after her at home with the help of social services. But eventually her health deteriorated to the extent that they could no longer do so. The local authority arranged the placement with the care home provider and undertook to meet the charges under the tripartite contractual arrangements described above. The local authority has a continuing duty of assessment and remains responsible for the resident's welfare. The local NHS Primary Care Trust assessed her health care needs, and found them to be in the high band, entitling her to a weekly contribution towards the nursing component in her care. This is paid direct to the nursing home and will reduce the amount which the local authority would otherwise have to pay. The NHS contribution would also go to reduce the fees payable by a purely private resident for whom otherwise the contractual arrangements are quite different.

The Human Rights Act 1998

    54.  The purpose of the 1998 Act, as has so often been said, was to ensure that people whose rights under the European Convention on Human Rights had been violated would have an effective domestic remedy in the courts of this country, as required by article 13 of the Convention, and would not have to seek redress in the European Court of Human Rights in Strasbourg. In the Labour party's consultation paper, Bringing Rights Home: Labour's Plans to Incorporate the European Convention on Human Rights into United Kingdom Law (December 1996), by Jack Straw and Paul Boateng, it was said that:

    "We take the view that the central purpose of the ECHR is to protect the individual against the misuse of power by the state. The Convention imposes obligations on states, not individuals, and it cannot be relied upon to bring a case against private persons.

    For this reason we consider that it should apply only to public authorities - government departments, executive agencies, quangos, local authorities and other public services. An appropriate definition would be included in the new legislation and this might be framed in terms of bodies performing a public function. We would welcome views on this."

    The Government's white paper, Rights brought home: the Human Rights Bill (1997) (Cm 3782), explained the resulting clause in the Bill thus:

    "The definition of what constitutes a public authority is in wide terms. Examples of persons or organisations whose acts or omissions it is intended should be able to be challenged include central government (including executive agencies); local government; the police; immigration officers; prisons; courts and tribunals themselves; and, to the extent that they are exercising public functions, companies responsible for areas of activity which were previously within the public sector, such as privatised utilities." (para 2.2)

    It is also worthwhile quoting the explanation given by the then Home Secretary, Mr Jack Straw, at the second reading of the Bill in the House of Commons (Hansard (HC Debates) 16 February 1998, col 773):

    "Under the Convention, the Government are answerable in Strasbourg for any acts or omissions of the state about which an individual has a complaint under the Convention. The Government have a direct responsibility for core bodies, such as central Government and the police, but they also have a responsibility for other public authorities, in so far as the actions of such authorities impinge upon private individuals.

    The Bill had to have a definition of a public authority that went at least as wide and took account of the fact that, over the past 20 years, an increasingly large number of private bodies, such as companies or charities, have come to exercise public functions that were previously exercised by public authorities."

    55.  Two points emerge clearly from these extracts. One is that it was envisaged that purely private bodies which were providing services which had previously been provided by the state would be covered. The second is that the Government were anxious that any acts for which the United Kingdom might later be held responsible in Strasbourg would be covered by the domestic remedies. Hence the definition would go 'at least as wide' as that.

    56.  Strasbourg case law shows that there are several bases upon which a state may have to take responsibility for the acts of a private body. The state may have delegated or relied upon the private body to fulfil its own obligations under the Convention: as in Van der Mussele v Belgium (1983) 6 EHRR 163, in which the provision of legal aid was delegated to the Belgian bar which required young advocates to provide their services pro bono; or, perhaps, in Costello-Roberts v United Kingdom (1993) 19 EHRR 112 where the fact that education is itself a convention right was influential in engaging the state's responsibility for corporal punishment in private schools. The state may have delegated some other function which is clearly a function of the state to a private body: as in Wós v Poland (Application No 22860/02) (unreported) 1 March 2005, where the Polish Government delegated to a private body the task of allocating compensation received from the German Government after World War II. The state may itself have assisted in the violation of convention rights by a private body: as in Storck v Germany (2005) 43 EHRR 96, where the police had assisted in the illegal detention of a young woman in a private psychiatric hospital by taking her back when she ran away.

    57.  Above all, the state has positive obligations under many articles of the Convention to take steps to prevent violations of an individual's human rights. These include taking general steps, such as enacting laws to punish and deter such violations: as in X and Y v The Netherlands (1985) 8 EHRR 235, where Dutch law did not afford an effective remedy to a mentally disabled girl who had been raped by a relative of the directress of the care home where she lived. They also include making effective use of the steps which the law provides: as in Z v United Kingdom (2001) 34 EHRR 97, in which a local social services authority did not use its powers to protect children whom they knew to be at risk of serious abuse and neglect.

    58.  Positive obligations arise under each of the articles most likely to be invoked by residents in care homes. Article 3 may afford them protection against inhuman and degrading treatment. Article 8 may afford protection against intrusions into their privacy, restrictions on their contacts with family and the outside world, and arbitrary removal from their home. Article 5 may afford protection against deprivation of liberty. Regrettably, examples abound in the literature (I hasten to add, none of it with reference to the company involved in this case) of care homes where acts which might well amount to breaches of articles 3 or 8 are commonplace but might not amount to the criminal offence of ill-treatment or neglect. The following example is taken from Jenny Watson, Something for Everyone: The impact of the Human Rights Act and the need for a Human Rights Commission (2002) (British Institute of Human Rights):

    "An agency worker told us about going into a residential care home for older people at breakfast time. She was instructed to get the residents up and onto their commode. She was then told to feed them breakfast. When she started to get the residents off their commodes first she was stopped. The routine of the home was that residents ate their breakfast while sitting on the commode and the ordinary men and women who worked there had come to accept this as normal."

    59.  Happily, there is now evidence in the literature that invoking human rights values in support of residents has produced change. The following example comes from Sonya Sceats, The Human Rights Act - Changing Lives (2007) (British Institute of Human Rights):

    "A learning disabled man in a care home became very anxious about bathing after slipping in the bath and injuring himself. Afterwards, in order to reassure him and build his confidence once again, a carer, usually female, would sit in the room with him as he bathed. His female carers felt uncomfortable with the arrangement. . . A discussion of the human rights principle of dignity had served as a 'trigger' for [one carer] and together with co-workers she was able to develop solutions that would both protect the man's dignity, whilst also providing him with the support he needed."

    60.  There is, of course, a difference between the negative obligation of the state to refrain from violating an individual's rights and the positive obligation of the state to protect an individual from the violations of others. But the case of Storck v Germany (2005) 43 EHRR 96 is a good example of the willingness of the Strasbourg court to find several reasons for holding a state responsible for violations caused by private bodies. The most effective way for the United Kingdom to fulfil its positive obligation to protect individuals against violations of their rights is to give them a remedy against the violator.

 
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