R v Leonard Cheshire Foundation (a charity) & Anor.

A private body does not perform a public function for section 6 of the Human Rights Act 1998 merely because it provides services which a public authority must secure or because its activities receive public funding and regulation. The court must examine the function as a whole for features giving it a public character.

A charity providing residential care under arrangements made by a local authority remained a private body where it possessed no statutory powers, was not closely assimilated to the authority and provided materially the same service to publicly and privately funded residents. The authority retained its statutory and Convention obligations after contracting with the provider.

Two long-stay residents appealed from Stanley Burnton J's dismissal of their application for judicial review. They challenged the Leonard Cheshire Foundation's decision to replace its existing residential home with smaller community-based homes and a high-dependency unit.

The residents alleged that the charity had failed to respect their rights under article 8 of the European Convention on Human Rights, including promises that the premises would be their home for life. The preliminary question was whether, in providing accommodation arranged and funded by public authorities, the charity performed functions of a public nature within section 6(3)(b) of the Human Rights Act 1998.

1. Appeal dismissed. Lord Woolf CJ delivered the judgment of the court. The charity did not perform a public function when providing residential accommodation and care to the appellants.

2. A private body's performance of an activity which a public authority must secure does not automatically make the activity public. The court must consider the situation as a whole. Public funding is relevant but not determinative. Regulation also may indicate a public character, but regulation alone does not make the regulated activity public. The approach in Poplar Housing and Regeneration Community Association Ltd v Donoghue [2001] 3 WLR 183 was applied.

3. The charity possessed no statutory powers under section 26 of the National Assistance Act 1948. It was not standing in the shoes of the local authorities and was not closely assimilated or enmeshed with them. Apart from the source of residents' funding, its services to publicly funded residents were materially indistinguishable from those supplied to privately funded residents. Its size and charitable status did not alter the private nature of those services.

4. The appellants' inability to enforce article 8 directly against the charity could not determine the classification of its function. The local authorities retained their duties under section 21 of the National Assistance Act 1948 and their article 8 obligations notwithstanding their use of a provider under section 26. The appellants also retained any contractual or estoppel rights against the charity.

5. For future arrangements made after the commencement of the Human Rights Act 1998, a local authority should consider requiring its provider by contract to protect residents' article 8 rights. This was guidance rather than a basis of the decision.

6. The absence of a public function defeated the public law claim but did not make commencement under the judicial review procedure inappropriate. A bona fide contention that a defendant performs a public function may properly be determined under Part 54 of the Civil Procedure Rules. Its flexible framework, including the power of transfer, permits any remaining private-law issues to be managed appropriately. No private-law rights were determined.

1. Court of Appeal (Civil Division): The residents' appeal was dismissed. The court upheld the conclusion that the charity was not performing a public function, although its reasons were not identical to those of the judge below.
2. Queen's Bench Division: Stanley Burnton J dismissed the application for judicial review after a preliminary hearing, holding that the charity was not a public authority within section 6 of the Human Rights Act 1998.