Johnson & Ors v London Borough of Havering

A local authority does not lose responsibility for residents’ Convention rights merely because it transfers care-home provision to a private operator. A private provider is not automatically exercising functions of a public nature under section 6(3)(b) of the Human Rights Act 1998 merely because it provides accommodation under statutory arrangements. The authority remains subject to section 6(1), and residents retain effective protection of their Convention rights.

Residents of three local-authority care homes challenged the Council’s decision to transfer two homes to a private operator and close two others after alternative accommodation had been found. The Council retook and confirmed its earlier decision after receiving further legal advice. The remaining challenge alleged that transfer would deprive residents of effective Convention-rights protection, contrary to section 6(1) of the Human Rights Act 1998. The issues were whether the private provider would perform functions of a public nature under section 6(3)(b), and whether the proposed transfer would itself breach the residents’ Convention rights.

1. The application for judicial review was dismissed.

2. The court was bound by R (Heather) v Leonard Cheshire Foundation and the guidance in Poplar Housing and Regeneration Community Association Ltd v Donoghue. A private body providing accommodation under arrangements made by a local authority pursuant to sections 21 and 26 of the National Assistance Act 1948 is not, merely for that reason, exercising functions of a public nature under section 6(3)(b) of the Human Rights Act 1998.

3. Public funding, statutory regulation and the relationship between provider, authority and resident did not require a different conclusion. Aston Cantlow PCC v Wallbank and the Strasbourg authorities relied upon did not justify departure from the binding Court of Appeal authority.

4. The transfer would not, in principle, diminish or remove the residents’ Convention-rights protection. The Council would remain a core public authority subject to section 6(1), with continuing obligations to safeguard the residents’ lives, protect them from inhuman or degrading treatment, and respect their private and family life, home and correspondence.

5. Both issues were therefore answered in the negative. The application was dismissed.