R (Heather) v Leonard Cheshire Foundation
| Jurisdiction | England & Wales |
| Judgment Date | 21 March 2002 |
| Neutral Citation | [2002] EWCA Civ 366 |
| Docket Number | Case No: C/2001/1813/A |
| Court | Court of Appeal (Civil Division) |
| Date | 21 March 2002 |
[2002] EWCA Civ 366
the Lord Chief Justice of England & Wales
Lord Justice Laws and
Lord Justice Dyson
Case No: C/2001/1813/A
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (DIVISIONAL COURT)
ON APPEAL FROM QUEENS BENCH DIVISION
(MR JUSTICE STANLEY BURNTON)
Mr Richard Gordon QC and Mr Ian Wise (instructed by Coningsbys)
appeared for the Appellant
Mr James Goudie QC and Miss Dinah Rose (instructed by Trowers & Hamlins)
appeared for the Respondent
Mr William Henderson (instructed by Treasury Solicitor)
appeared for HM Attorney General
Lord Woolf CJ: This is the judgment of the Court
INTRODUCTION
This appeal is by two appellants, Elizabeth Heather and Hilary Callin from a decision of Stanley Burnton J dated 15 June 2000. At the time of the hearing before Stanley Burnton J there were three claimants but the second claimant has since withdrawn his appeal. The respondents to the appeal are the Leonard Cheshire Foundation ("LCF") and Her Majesty's Attorney General. The appellants are long-stay patients in a home called Le Court which is owned and run by LCF. The appeal is against the dismissal of their application for judicial review of LCF's decision to close the home in the way in which it is run at present. The application was dismissed after a preliminary hearing as a result of which Stanley Burnton J held that LCF is not a "public authority" within the meaning of that term in section 6 of the Human Rights Act 1998 ("the HRA"). It is the correctness of this conclusion which is the subject of this appeal.
The Attorney General was a party to the appeal because of the responsibilities that he has for charities. He was represented by Mr W H Henderson. In the court below, a further issue arose as to whether or not the proceedings constituted "charity proceedings" within the meaning of section 33 of the Charities Act 1993. If they were charity proceedings their commencement required the authority of the Charity Commissioners or a Chancery Judge. After the proceedings had started in the court below this issue became academic once the claimants obtained the necessary authority. Permission to appeal this issue was therefore not granted.
Le Court is LCF's first and largest home. It is situated at Greatham, near Lis, in Hampshire. At the time of the decision in the court below it had 42 long-stay residents. They included the then three claimants, who had all lived there for periods of more than 17 years.
LCF is the United Kingdom's leading voluntary sector provider of care and support services for the disabled. The majority of the residents at the home, including the appellants, had been placed there by the social services departments of their local authority or by their health authority. In making the placements and providing the funding which the placements required, the authorities were exercising statutory powers.
It was on 27 September 2000 that the trustees of LCF decided to cease to operate Le Court in its present form. They approved the development of three or four smaller community based homes to be located in the surrounding towns and the establishment at Le Court itself of a 16-bed high dependency unit. The residents, who would no longer be able to be accommodated at Le Court, were to be relocated into the community based units. That decision was reconsidered by the trustees on 7 February 2001 and affirmed.
In the proceedings for judicial review the claimants contended that in making these decisions LCF was exercising functions of a public nature within the meaning of section 6(3)(b) of the HRA and so, as a public authority, was required not to act in a way which was incompatible with Article 8 of the European Convention on Human Rights. It was argued that instead the trustees had contravened Article 8 by not respecting the claimants' right to a home and failing to take into account, inter alia, promises made to them that Le Court would be their "home for life". In addition it was alleged that LCF had not obtained individual assessments of the claimants' needs and had failed to take into account, or ignored, LCF's own policy of providing for their residents a "home for life".
In the court below Stanley Burnton J reserved his judgment. After he had prepared a draft of his judgment and had sent it to the parties, but before it could be delivered, this Court handed down its decision in Poplar Housing and Regeneration Community Association Ltd v Donoghue [2001] 3 WLR 183. Stanley Burnton J recognised that the judgment in Donoghue was of obvious relevance to his decision in this case. He therefore invited the parties to make written submissions to him as to the effect of the decision in Donoghue on his draft judgment. Stanley Burnton J then re-drafted his judgment, and as he explains in his judgment:
"… having considered the judgment of the Court of Appeal in Donoghue and the parties' written submissions, I have concluded that my original decision was correct. Rather then re-write my judgment in the light of that decision, I have retained most of the text of my draft judgment and made reference to the judgment of the Court of Appeal where appropriate. This has the disadvantage that my judgment is now unnecessarily long, and even longer than it was originally. However, if I had started afresh my original reasoning would have been lost. I hope that in general it will be obvious which parts of my judgment are new." (Paragraph 12.)
The course adopted by Stanley Burnton J has meant that this court has had the benefit of his own analysis and conclusions on the issues which he had to decide.
Because we appreciated it was very much in the interest of the appellants and the LCF that they knew the result as soon as possible, at the end of the hearing we announced to the parties that we had decided to dismiss the appeal. These are our reasons for doing so; they are not identical to those of Stanley Burnton J, but nonetheless we acknowledge the obvious care and skill with which he has examined the issues.
JUSTICE attached considerable importance to the outcome of this appeal which they regard as being of general public importance. JUSTICE therefore sought permission which was granted to deliver written submissions in support of the appeal. Those submissions were prepared by Mr Philip Havers QC and Mr Thomas de la Mare. We have found them of considerable value.
THE STATUTORY FRAMEWORK
The National Assistance Act 1948 ("NAA") places a duty on the relevant local authorities to provide accommodation for the claimants. Section 21 (1) of the NAA, as amended, provides:
"21 Duty of local authorities to provide accommodation
(1) Subject to and in accordance with the provisions of this Part of this Act, 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 –
(a) residential accommodation for persons aged eighteen or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them; and
(aa) residential accommodation for expectant and nursing mothers who are in need of care and attention which is not otherwise available to them."
The accommodation, which the authorities arrange, may be provided by the authority itself or by another authority. As section 21(4) and (5) of the NAA, as amended, state:
"(4) Subject to the provisions of section 26 of this Act accommodation provided by a local authority in the exercise of their functions under this section shall be provided in premises managed by the authority or, to such extent as may be determined in accordance with the arrangements under this section, in such premises managed by another local authority as may be agreed between the two authorities and on such terms, including terms as to the reimbursement of expenditure incurred by the said other authority, as may be so agreed.
(5) References in this Act to accommodation provided under this Part thereof shall be construed as references to accommodation provided in accordance with this and the five next following sections, and as including references to board and other services, amenities and requisites provided in connection with the accommodation except where in the opinion of the authority managing the premises their provision is unnecessary."
Under the NAA the authority may also make arrangements for the accommodation to be provided by third parties under section 26(1) which provides:
"26 Provision of accommodation in premises maintained by voluntary organisations
(1) Subject to subsections (1A) and (1B) below, arrangements under section 21 of this act may include arrangements made with a voluntary organisation or with any other person who is not a local authority where –
(a) that organisation or person manages premises which provide for reward accommodation falling within subsection (1)(a) or (aa) of that section, and
(b) the arrangements are for the provision of such accommodation in those premises."
This is how the claimants came to be at Le Court.
Section 26(2), as amended, is also relevant since it deals with payment for the accommodation and is in these terms:
"(2) Any arrangements made by virtue of … this section shall provide for the making by the local authority to the other party thereto of payments in respect of the accommodation provided at such rates as may be determined by or under the arrangements and subject to subsection (3A) below the local authority shall recover from each person for...
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