Johnson & Ors v London Borough of Havering & Ors

A local authority’s transfer of a care home to private control does not, by itself, breach residents’ Convention rights. Article 8 does not guarantee a fixed form or level of welfare provision, or an unchanged direct remedy against the immediate carer. The authority’s statutory and Convention responsibilities continue after transfer. In the companion appeal, the court was bound by [2002] 2 All ER 936: a private care home accommodating residents placed and funded by a local authority was not performing functions of a public nature under section 6(3)(b) of the Human Rights Act 1998. [2004] 1 AC 546 concerned a different issue and did not displace that authority. Both appeals were dismissed.

Residents of care homes maintained by Havering challenged a proposed transfer of the homes to private control. Forbes J dismissed the claim: [2006] EWHC 1714 (Admin). In the conjoined YL appeal, a private care home sought to terminate its care arrangement with a resident placed and funded by Birmingham City Council. Bennett J rejected the claim on a preliminary issue.

The appeals raised whether transfer itself engaged article 8 and whether a private care home performing care arrangements made under section 21 of the National Assistance Act 1948 exercised functions of a public nature under section 6(3)(b) of the Human Rights Act 1998.

1. Johnson. The proposed transfer did not itself breach the residents’ Convention rights. The residents’ legal position against Havering would not disappear. Havering would retain its statutory responsibilities under sections 21 and 26 of the National Assistance Act 1948 and its obligations under section 6(1) of the Human Rights Act 1998. A change in remedies, or the loss of a direct claim against the immediate carer, was not by itself a Convention breach.
2. Article 8. Positive obligations under article 8 are fact-specific. Article 8 does not require a local authority to maintain a particular form or level of welfare provision, nor does it give residents a vested right to an unchanged legal regime. The continuing responsibility of the local authority meant that the transfer did not involve a sufficient interference with respect for the residents’ homes. Section 26 also permitted discharge of section 21 duties through private arrangements. The argument that transfer was never permissible would have required a declaration of incompatibility, which was not sought.
3. YL and section 6(3)(b). The court was bound by R(Heather) v Leonard Cheshire Foundation, reported at [2002] 2 All ER 936. That case held that a private care home providing substantially the same services to publicly and privately funded residents was not thereby performing functions of a public nature. The Court of Appeal could not substitute its own categorisation of materially identical primary facts. Aston Cantlow PCC v Wallbank, reported at [2004] 1 AC 546, concerned a different factual and legal question and did not impliedly overrule Cheshire.
4. Relevant approach. There is no universal test for identifying a public function. Public funding, statutory powers, taking the place of central or local government, and providing a public service may be relevant. Judicial-review authority may assist but is not determinative. The Strasbourg authorities did not require a private care home to be treated as a public authority; State responsibility could arise through legislation, delegation of State obligations, or inadequate judicial protection.
5. Obiter. Buxton LJ suggested, expressly obiter and without the concurrence of the other judges on this point, that hybrid public-authority status might need to be assessed instrumentally and article by article. The question would be whether direct liability was necessary to protect the claimant’s Convention rights, having regard to the relief sought and other Convention values.
6. Orders. Both appeals were dismissed. Costs orders were made or reserved as described at paragraphs 82 and 83. Buxton LJ indicated that permission to appeal to the House of Lords should be considered for the YL issue and the public-authority issue in Johnson, but not for the transfer issue.

• Court of Appeal (Civil Division): Both appeals dismissed. The court held that the transfer did not itself breach Convention rights and that the private care home was not exercising functions of a public nature under section 6(3)(b) of the Human Rights Act 1998.
• High Court, Administrative Court: Forbes J dismissed the Johnson claim: [2006] EWHC 1714 (Admin). Bennett J dismissed the YL claim on the preliminary issue; no citation is stated in the judgment.