Appendix: Extracts from Senior Counsel's advice to the Equality
and Human Rights Commission clarifying the application of the
Human Rights Act to home care services
ADVICE DATED OCTOBER 2010
Pt 4 – QUESTION (1): IS THE ARRANGEMENT AND PROVISION OF HOME-BASED
CARE AND SUPPORT SERVICES COMMISSIONED BY PUBLIC AUTHORITIES
FROM PRIVATE AND THIRD SECTOR ORGANISATIONS WITHIN THE SCOPE OF
THE HRA IN THE LIGHT OF RECENT CASE LAW?
Home-based care and support services: an overview of the problem
1. As those instructing me imply, there is no clear or exhaustive definition of the
meaning of the term ‘home based care and support services’. This could, however,
undoubtedly include as a large part of that term the care and services referred to in my
instructions, namely domiciliary care, the provision of meals, home adaptations, day
centres, providing escort services (as for example, for the purpose of attending
medical appointments or undertaking shopping trips) and recreational facilities.
2. I agree that most of the legislation (including Government Directions) referred to in
my instructions represents most of the directly relevant legislation relating to the
provision of home care and support services.1 For reference purposes, I will repeat
and slightly extend that list so as to provide a general overview of the principal
relevant legislation.2
1

National Assistance Act 1948

Health Services and Public Health Act 1968
My instructions also make reference to the DOL safeguards in the Mental Capacity Act 2005 as having
potential relevance if a person were provided with 24 hour care in their own home in a way that deprived them
of their liberty. However, whilst this might well engage some provisions of the Mental Capacity Act and the
jurisdiction of the Court of Protection under ss. 15-16 the DOL safeguards themselves only apply to placements
in residential care or in hospital and so would not have obvious application to home-based care and support
services.
2
This extended list is not necessarily exhaustive. Its primary purpose is to demonstrate how much of the
provision of home-based care and support services derives from very wide-ranging statutory sources of
obligation.
1

Chronically Sick and Disabled Persons Act 1970

Mental Health Act 1983 (after care services under s. 117)

National Health Service and Community Care Act 1990

Community Care (Delayed Discharges) Act 2003

NHS Continuing Healthcare (Responsibilities) Directions 20073

Intermediate care (LAC (2001)1/ HSC 2001/1)4

The Mental Capacity Act 2005 (protection against deprivation of
liberty in the home)

Prioritising Need in the context of Putting People First, guidance on
eligibility criteria for Adult Social Care, Department of Health,
February 2010 (eligibility criteria framework and provision for
periodic review of community care services: see paragraph 144)

Children Act 1989 (certain community care services for children)5

Health and Social Services and Social Security Adjudication Act 1983
(provision for charging for certain community care services)

Local Authority Social Services Act 1970 (provides for guidance that
has been judicially interpreted as effectively binding on how social
services departments should conduct their social services functions)

Carers and Disabled Children Act 2000

Care Standards Act 2000 (regulation of certain supported living
arrangements)
3
NHS continuing care will certainly have a potential overlap with the provision of community care services. I
have omitted the primary legislation which is also potentially relevant.
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There are a great many LACs: another important LAC is LAC (2003) 14 on the provision of ‘free’ equipment
under the Chronically Sick and Disabled Persons Act 1970
5
This is not, of course, relevant to older people, the subject of the Commission’s Inquiry. However, I have
included it for comparative purposes as there is a parallel community care regime for children with similar albeit
not identical statutory obligations to those in respect of older people. In principle, human rights mechanisms (or
their absence) and the resolution of the questions posed in my instructions should be comparable for children
and may usefully be tested against the consequences for each affected group.
2
3. From the above-mentioned list of potentially applicable legislation two threshold
points can be made. First, the provision of home-based and support services for older
people (the subject of the Commission’s Inquiry) is regulated by a complex
multiplicity of different statutory regimes. Secondly, the statutory responsibility for
arranging the provision of relevant services lies (at least in the case of social care
provision)6 on the social services departments of local authorities. In other words, the
primary responsibility is governmental.
4. There are generally two ways in which relevant service provision 7 is made. The first
is, in the case of social care, direct provision by a local authority. For the purposes of
this question that causes no difficulty in terms of the scope of the HRA because local
authorities are full public authorities within the meaning of HRA s. 6.
5. But difficulty arises where a local authority commissions services from ‘private’ and
third sector organisations (‘indirect provision’). Case-law both before and after the
coming into force of the HRA has suggested that it was – in the case of provision of
residential care services - by no means clear that the activities of such bodies are
within the scope of HRA s. 6. Although what was regarded as a legislative lacuna was
later remedied (see below) the problem as far as home-based care and support
services are concerned remains as there has been no comparable amending legislation.
The case-law
6. A useful distillation of the general principles that have been applied by the domestic
courts to decide whether an ostensibly ‘private’ body is, nonetheless, performing
public functions so as to fall within the scope of HRA s. 6 appears in the judgment of
Elias L.J. (see paragraphs 35-36) in the Court of Appeal ruling in London Quadrant
Housing Trust v. R (Weaver) [2009] EWCA Civ 587(‘Weaver’).8
7. In outline the relevant principles are these:
6
Provision of NHS continuing health care establishes a different statutory responsibility but the point is the
same. The duty lies on the State to make the necessary arrangements.
7
In this Opinion I focus on social care but the same points apply to the provision of NHS continuing health care.
8
It is to be noted that the Commission intervened in that case.
3
(i)
The purpose of HRA s. 6 is to identify those bodies that are carrying out
functions which will engage the responsibility of the United Kingdom before
the European Court of Human Rights: see Parochial Church Council of the
Parish of Aston Cantlow and Wilmcote with Billesley v. Wallbank and
Another (‘Aston Cantlow’) [2003] UKHL 37 (per Lord Nicholls at paragraph
6, per Lord Rodger at paragraph 160, per Lord Hope at paragraph 52, per
Lord Hobhouse at paragraph 87 and per Lord Scott at paragraph 129).
(ii)
However, the case law from the European Court of Human Rights provides no
clear guidance for gleaning how that test should be applied where there is no
formal delegation of public powers (YL (by her litigation friend the Official
Solicitor) v. Birmingham City Council and Others (‘YL’) [2007] UKHL 27
(per Lord Mance at paragraph 92).
(iii)
A public body is one whose nature is, in a broad sense, governmental.
However, it does not follow that all bodies exercising such functions are
necessarily public bodies; many functions of a kind historically performed by
government are also exercised by private bodies, and increasingly so with the
growth of privatisation: see Aston Cantlow per Lord Nicholls at paragraphs 7
– 8).
(iv)
Further, this is only a guide since the phrase used in the Act is public function
and not governmental function.
(v)
In determining whether a body is a public authority, the courts should adopt a
‘factor-based approach’ (YL per Lord Mance at paragraph 91). This requires
the court to have regard to all the features or factors which may cast light on
whether the particular function under consideration is a public function or not,
and weigh them in the round. There is, as Lord Nicholls put it in Aston
Cantlow (at paragraph 12) ‘no single test of universal application’ Aston
Cantlow per Lord Nichollas at paragraph 12); to similar effect see YL per
Lord Bingham at pargraph 5.
4
(vi)
A broad or generous application of HRA s. 6(3)(b) should be adopted: per
Lord Nicholls in Aston Cantlow at paragraph 11 cited by Lord Bingham in
YL, at paragraph. 4 and by Lord Mance at paragraph.91.
(vii)
The factors to be taken into account include: (a) the extent to which in
carrying out the relevant function, the body is publicly funded, or (b) is
exercising statutory powers, or (c) is taking the place of central government or
local authorities, or (d) is providing a public service (Aston Cantlow per Lord
Nicholls at paragraph 12)
(viii) As to public funding, it is misleading to say that a body is publicly subsidised
merely because it enters into a commercial contract with a public body (YL
per Lord Scott, paragraph 27; per Lord Neuberger at paragraph 141). As Lord
Mance observed (see paragraph 105):
‘Public funding takes various forms. The injection of capital or subsidy
into an organisation in return for undertaking a non-commercial role
or activity of general public interest may be one thing; payment for
services under a contractual arrangement with a company aiming to
profit commercially thereby is potentially quite another.’
(ix)
As to the exercise of statutory powers, or the conferment of special powers,
this may be a factor supporting the conclusion that the body is exercising
public functions, but it depends why they have been conferred. If it is for
private, religious or purely commercial purposes, it will not support the
conclusion that the functions are of a public nature: cf per Lord Mance in YL
at paragraph 101, with per Lord Neuberger at paragraph 167)
(x)
As to a body to some extent taking the place of central government or local
authorities, that principle will (only) be easy to apply where their powers are
formally delegated to the body concerned.
(xi)
As to whether the body is providing a public service this should not be
confused with performing functions which are in the public interest or for the
public benefit see per Lord Mance in YL (paragraph 105) (per Lord Neuberger
5
at paragraph 135), many private bodies, such as private schools, private
hospitals, private landlords, and food retailers, provide goods or services
which it is in the public interest to provide. This does not render them public
bodies, nor their functions public functions. Usually the public service will be
of a governmental nature
(xii)
Certain factors will generally have little, if any, weight when determining the
public status. First, the fact that the function is one which is carried out by a
public body does not mean that it is a public function when carried out by a
potentially hybrid body (per Lord Scott in YL, at paragraphs 30-31.Secondly,
it will often be of no real relevance that the functions are subject to detailed
statutory regulation: per Lord Neuberger in YL at paragraph 134.
8. In general, the courts have been conservative in treating functions performed by
ostensibly private or third sector bodies as public functions so as to bring the exercise
of those functions within the scope of the HRA.
9. Although the application of the above general principles cannot always be predicted.
there have been three cases to date in which a ‘private’ provider of residential care
services commissioned by a local authority under the National Assistance Act 1948 s.
21 has been held to fall outside the scope of the HRA. The most recent decision is YL
referred to above in which the House of Lords held by a 3-2 majority that the HRA
does not apply to private and voluntary sector care homes providing services under
contract to local authorities. Earlier decisions to similar effect were the rulings of the
Administrative Court and Court of Appeal in (respectively) R v Servite Houses, Ex p
Goldsmith [2001] LGR 55, and R (Heather) v. Leonard Cheshire Foundation [2002]
EWCA Civ 366.
10. As foreshadowed above, these decisions were viewed with dismay given that there
had been legally unenforceable promises prior to the enactment of the HRA that
service users in residential care homes would be covered by the HRA. Accordingly,
following the ruling in YL, s. 145 of the Health and Social Care Act 2008 altered the
law. Section 145 provides thus:
6
‘(1) A person (“P”) who provides accommodation, together with nursing or
personal care, in a care home for an individual under arrangements made with P
under the relevant statutory provisions is to be taken for the purposes of
subsection (3)(b) of section 6 of the Human Rights Act 1998 (c. 42) (acts of public
authorities) to be exercising a function of a public nature in doing so.
(2) The “relevant statutory provisions” are—
(a) in relation to England and Wales, sections 21(1)(a) and 26 of the National
Assistance Act 1948 (c. 29),
(b )in relation to Scotland, section 12 or 13A of the Social Work (Scotland)
Act 1968 (c. 49), and
(c) in relation to Northern Ireland, Articles 15 and 36 of the Health and
Personal Social Services (Northern Ireland) Order 1972 (S.I. 1972/1265 (N.I.
14)).
(3)In subsection (1) “care home”—
(a) in relation to England and Wales, has the same meaning as in the Care
Standards Act 2000 (c. 14), and
(b) in relation to Northern Ireland, means a residential care home as defined by
Article 10 of the Health and Personal Social Services (Quality, Improvement
and Regulation) (Northern Ireland) Order 2003 (S.I. 2003/431 (N.I. 9)) or a
nursing home as defined by Article 11 of that Order.
(4) In relation to Scotland, the reference in subsection (1) to the provision of
accommodation, together with nursing or personal care, in a care home is to be
read as a reference to the provision of accommodation, together with nursing,
personal care or personal support, as a care home service as defined by section 2(3)
of the Regulation of Care (Scotland) Act 2001 (asp 8).
(5)Subsection (1) does not apply to acts (within the meaning of section 6 of the
Human Rights Act 1998 (c. 42)) taking place before the coming into force of this
section.’
The current position with respect to home-based care and support services
11. It is apparent that s. 145 of the 2008 Act is highly specific. It extends only to care
homes as defined and only to particular and discrete statutory provisions. Plainly, s.
145 is not an ‘avoidance of doubt’ provision as the House of Lords had (albeit by
what many have regarded as an unconvincing majority)9 authoritatively stated the law
to be that private residential care homes were not within the scope of the HRA.
9
See, eg: Joint Committee on Human Rights Eighteenth Report July 16th 2007 at paragraph 159.
7
12. The critical issue, therefore, is whether there is any relevant difference of principle in
terms of statutory construction of the HRA10 as between the functions exercised by
private providers of home-based care and support services and those exercised by
private providers of accommodation together with nursing or personal care services in
residential care home services.
13. In my view there is no relevant difference of principle. If a private provider of
residential care home services was, until the enactment of s. 145 of the 2008 Act,
outside the scope of the HRA it is not at all easy to see how such provider (at least in
theory capable of being the same provider) is within the scope of the HRA if – via a
commissioning arrangement with a local authority - it makes provision of (say)
personal care services in a service user’s own home and/or assists such person in
supported living arrangements. Although there may be circumstances in which
aspects of the provision of supported living can fall within the scope of the HRA, this
lies not in the nature of commissioning arrangements and the statutory source from
which such arrangements are derived but, rather, from the specific nature of the
provider in question.11
14. The key factor enabling strong arguments to have been advanced before the courts as
to why commissioning arrangements between local authorities and private or third
sector organisations rendered the functions exercisable by such organisations pursuant
to such arrangements ‘public functions’ within the meaning of the HRA was that there
was a statutory source of obligation on the local authorities which they were
discharging (as permitted by statute) by means of arrangements themselves
undertaken by non-statutory bodies. Thus, so the argument ran, the functions
performed by the non-statutory bodies were underpinned by statute and would, had
they not been so performed, have been required to have been undertaken by the local
authorities themselves.
10
This Question does not engage the wider question of the nature of the fundamental rights enjoyed by service
users receiving home-based care and support services. Plainly, fundamental rights are engaged – as they are for
service users in care homes – and this is discussed later in this Opinion.
11
Thus a registered social landlord allocating and managing housing is in a different position. In Weaver it was
held (albeit again by a majority of the Court of Appeal) that an RSL was a public authority within the meaning
of HRA s. 6.
8
15. Regrettably, these arguments have never prevailed with the domestic courts. I find the
arguments of the very powerful dissenting minority in YL (Lord Bingham and
Baroness Hale) entirely convincing. In essence they held as follows:
(i)
The provision of residential care is the subject of detailed statutory regulation
(per Lord Bingham at paragraph 17).
(ii)
In such circumstances, the performance of a ‘private’ body (in casu under the
National Assistance Act 1948 s. 26) of what would undoubtedly be a public
function if carried out by a public body (in casu s. 21 of the 1948 Act) is
precisely the situation that HRA s. 6(3)(b) was intended to embrace (per Lord
Bingham at paragraph 20).
(iii)
The State has, under statutory coercive powers, and with a close connection
with the underlying core values of the European Convention on Human Rights
assumed responsibility at public expense and in the public interest for securing
the assessed needs of the relevant community care services governed by ss. 21
and 26 of the 1948 Act (per Baroness Hale at paragraphs 64-73). These factors
tell heavily in favour of HRA s. 6(3)(b) applying.
16. The above (compelling) reasoning is interchangeable with arrangements made by a
local authority with a ‘private’ provider for home-based care and support services
under (to take the strongest example) s. 29 of the 1948 Act which is couched in
materially similar terms to ss. 21/26 of the same Act. There is nothing in the statutory
structure of local authority arrangements with private providers for home-based care
or support services that materially changes the analysis of the majority of their
Lordships’ House in YL.
17. It is worth reminding oneself specifically what was held by the majority in YL. It was
to the following effect:
(i)
The owner of a private care home taking local authority funded residents is
simply providing a service or services for which it charges a commercial fee
(per Lord Scott at paragraph 27).
9
(ii)
A local authority making direct residential care provision is doing so under a
statutory obligation. But a private care home does so not under any statutory
obligation but under a private contractual arrangement (per Lord Scott at
paragraph 31).
(iii)
Moreover, the provision of services in a residential care home (as opposed to
the making of arrangements for such provision) is not an inherently
governmental function (per Lord Mance at paragraph 115).
(iv)
There would be no ‘public function’ if the non-statutory body made direct
provision without a prior arrangement with a local authority and the provision
of such service does not become a public function merely because its
regulation and supervision is affected by statute (per Lord Neuberger at
paragraphs 133-135).
18. Each of these aspects of the negative reasoning applies equally to the provision by
private care providers of home-based and support services.
19. Finally, I should say that I have considered the fact that Southern Cross (the private
residential care provider in YL) operated for commercial profit. This was referred to in
some of the majority speeches as a relevant factor (see, eg, per Lord Scott at
paragraph 26, per Lord Mance at paragraph 76). Strictly, therefore, the ratio of YL
may be argued to be confined to profit-making non-statutory bodies and not (for
example) charities or other not-for-profit bodies. Nonetheless, the thrust of the
majority reasoning must, logically, apply equally to not-for-profit bodies. It would,
indeed, be somewhat anomalous from the point of view of the service user if it did
not. Moreover, the majority speeches in substance agreed with each other12 and Lord
Neuberger’s speech was not, as it seems to me, in any way affected by the profit
element.
20. I give this advice with regret. It is at least possible, having regard to the enactment of
s. 145 of the 2008 Act and the particular factual circumstances of YL that the Supreme
12
See per Lord Scott at paragraph 26, per Lord Mance at paragraph 123, per Lord Neuberger at paragraph 126.
10
Court might seek to distinguish or even to depart from YL. For the reasons advanced
by the minority in YL and outlined above I consider that it should and that, properly
interpreted, HRA s. 6 does extend to home-based care and support services. In the
present state of the law, however, I consider that unless it were prepared to depart
from YL the courts would be bound to hold that the provision of home-based care and
support services by private providers resulting from commissioning arrangements
with a public body are, almost invariably, outside the scope of the HRA.
21. My instructions query whether the development of personal budgets and direct
payments might alter the position in any way. However, each of these is but a
different aspect of individual empowerment through the exercise of power by a local
authority. They do not alter the position as analysed in YL from the perspective of the
private or third sector provider. With direct payments, the service user receives a
payment to enable him/her to commission services. With personal budgets the
allocation of funding may either take the form of a direct payment or may still leave
the local authority with the responsibility of commissioning services. In either case,
services are commissioned through an arrangement which, though derived from a
statutory source, is no closer to conferring public functions on the private provider
than direct commissioning by the local authority. In each case, therefore, the analysis
produces no different a result to that analysed in YL.
Pt 10 – MAIN CONCLUSIONS
22. My principal Conclusions are as follows:
(i) The provision of home-based care and support services by private providers resulting from
commissioning arrangements with a public body is likely to be outside the scope of the
HRA.
(ii) Private budgets and direct payments regimes have no material relevance to that conclusion.
11
RICHARD GORDON Q.C.
Brick Court Chambers,
London WC2
October 28 2010
12