R (Heather) v Leonard Cheshire Foundation

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMR JUSTICE STANLEY BURNTON
Judgment Date15 June 2001
Neutral Citation[2001] EWHC 429 (Admin)
Docket NumberCase Nos.: CO/4503/2000 and CO/4727/00
Date15 June 2001

[2001] EWHC 429 (Admin)

IN THE HIGH COURT OF JUSTICE

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Honourable Mr Justice Stanley Burnton

Case Nos.: CO/4503/2000 and CO/4727/00

The Queen On The Application Of
(1) Elizabeth Heather
(2) Martin Ward
(3) Hilary Callin
Claimants
and
The Leonard Cheshire Foundation
First Defendant
and
H. M. Attorney General
Second Defendant

Richard Gordon QC, Ian Wise and Alan MacLean (instructed by Coningsbys) for the Claimants)

James Goudie QC and Monica Carrs-Frisk QC(instructed by Trowers & Hamlins for the First Defendant)

W. H. Henderson (instructed by the Treasury Solicitor) for H.M. Attorney General

MR JUSTICE STANLEY BURNTON
1

The Defendant, the Leonard Cheshire Foundation, is the well-known charity, established by Leonard Cheshire VC. Lord Denning was one of the original committee members. It is the United Kingdom's leading voluntary sector provider of care and support services for the disabled. I shall refer to it as “Leonard Cheshire”. Its first and largest home is Le Court Cheshire Home, Greatham, near Lis, in Hampshire (“Le Court”).

2

Le Court has about 42 long-stay residents. They include the three Claimants, who have lived there for periods of 17 years and more. The majority of the residents at the home (including the Claimants) have been placed there, and their places are funded, either by the social services department of their local authority, or by their health authority. In either case, their placement and funding results from the exercise of statutory powers by the local authority or the health authority.

3

On 27 September 2000, the Trustees of Leonard Cheshire decided to close Le Court in its present form. They approved the development of 3 or 4 smaller community-based homes to be located in the surrounding towns, and the creation at Le Court itself of a 16-bed high-dependency unit. The residents who could not be kept at Le Court would be relocated into the community-based units. That decision was reconsidered by the Trustees on 7 February 2001 and affirmed.

4

By these proceedings the Claimants seek judicial review of those decisions. They contend that Leonard Cheshire, in relation to them, exercises functions of a public nature within the meaning of section 6(3)(b) of the Human Rights Act 1998; that it is accordingly a public authority within the meaning of section 6; that by virtue of section 6(1) it owed them a duty to comply with the Articles of the European Convention on Human Rights set out in Schedule 1 to the Act; and that the Trustees' decision to close Le Court was made in contravention of Article 8, which confers on them the right to respect for their home, which is Le Court. They allege principally that the Trustees failed to take into account the promises made to them that Le Court would be their “home for life”, promises which created substantive legitimate expectations on the part of residents; that the Trustees made their decisions without obtaining individual assessments of the Claimants' needs; that the Trustees failed to take account of, or ignored, Leonard Cheshire's own express policy of providing for its residents a “home for life” – that Le Court should be their home for as long as a resident wants or is able to continue to live there; and that the decisions of the Trustees were in the circumstances irrational. On these grounds, the Claimants seek an order to quash the decisions in question.

5

In addition, on the basis that Leonard Cheshire, exercises, in relation to the Claimants, functions of a public nature within the meaning of section 6(3)(b) of the Human Rights Act, the Claimants contend that the decisions of the Trustees were made “in relation to the exercise of a public function” within the meaning of Part 54.1 of the CPR, and that they are therefore amenable to judicial review.

6

Leonard Cheshire denies that it exercises any public function within the meaning of the Human Rights Act or Part 54 of the CPR. It contends that its functions are wholly private. It therefore denies that it is amenable to judicial review, and it denies being under the substantive obligations contended for by the Claimants, which are only applicable to public authorities. It also denies the substance of the Claimants' allegations.

7

H.M. Attorney General intervened in these proceedings and was made a defendant. He too submits that Leonard Cheshire is not a public authority for the purposes of the Human Rights Act and Part 54 of the CPR. In addition, he contends that the present proceedings are charity proceedings within the meaning of section 33 of the Charities Act; that the Claimants have not obtained the authority of the Charity Commissioners or leave of a Judge of the Chancery Division to take these proceedings as required by section 33; and that these proceedings must therefore be struck out or stayed pending the Claimants' applications for the Commissioners' order authorising these proceedings or the leave of a Chancery Judge.

8

The Claimants dispute that these proceedings are charity proceedings. They submit that charity proceedings do not include proceedings by way of judicial review, and certainly do not include proceedings that have as their purpose the enforcement of Convention rights.

9

I decided to hear and to decide the jurisdictional objections of Leonard Cheshire and of the Attorney General as preliminary issues. This was particularly appropriate since, if the Attorney General's submission was correct, and these are charity proceedings, the Court was precluded from entertaining them. However, during the hearing before me, without prejudice to their submissions, the Claimants applied to the Charity Commissioners for their authority to continue these proceedings; and the Commissioners subsequently did give their authority. The question whether these proceedings are charity proceedings became largely academic. Nonetheless, since the question was fully argued and may be of general importance, I have addressed it in my judgment.

10

I did not consider the evidence on the issues of substance, or hear argument on them, except in so far as it was necessary to do so in order to understand and to determine the jurisdictional issues. This did involve some consideration of the obligations that the Claimants allege arise from the fact that Leonard Cheshire is, in relation to them, a public authority, so that I could appreciate the consequences of a decision that Leonard Cheshire is, or is not, a public authority. It did not involve any investigation or consideration of the question whether Leonard Cheshire had in any way failed to fulfil those obligations.

11

On the day after the draft of my judgment on the jurisdictional issues in this case was sent to counsel for the parties, counsel brought to my attention the judgment of the Court of Appeal in Donoghue v Poplar Housing and Regeneration Community Association Ltd [2001] EWCA Civ 595, given on 27 April 2001. In that case a housing association was held to be a public authority for the purposes of section 6 of the Human Rights Act. The defendant (to which I shall refer as “Poplar”) was, like Leonard Cheshire a charity, and like Leonard Cheshire provided accommodation under arrangements with a local authority by which the local authority fulfilled its statutory duties. Like Poplar, Leonard Cheshire receives moneys from public sources; like Poplar, Leonard Cheshire is regulated under statute. Because of the obvious relevance and importance of the decision in Donoghue I decided to reconsider my judgment. The parties subsequently presented their written submissions on the effect of the judgment in Donoghue on my draft judgment and my conclusions. For that purpose, I permitted counsel to discuss my draft judgment with their clients. In view of the costs and the delay that would be involved, the comprehensiveness of the written submissions, and the prospects of an appeal to the Court of Appeal from my decision in any event, I decided not to invite further oral argument. I note that the Court of Appeal itself adopted a similar course in Donoghue itself: see paragraph 31 of the judgment.

12

In the event, 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 than rewrite 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.

13

This is my judgment on the jurisdictional issues.

The issues

14

There are two principal issues for decision:

(i) In making its decisions referred to above, was Leonard Cheshire acting as a public authority in relation to the Claimants?

(ii) Are these proceedings charity proceedings within the meaning of section 33 of the Charities Act?

15

The Claimants do not suggest that Leonard Cheshire is a public authority for all purposes. They accept that it is not a public authority in relation to its privately-funded residents at Le Court. They contend that it is a hybrid authority, a person “certain of whose functions are of a public nature” within section 6(3)(b) of the Human Rights Act. Issue (i) above is worded as it is in order to include the issue raised by Leonard Cheshire under section 6(5): it contends that, even if Leonard Cheshire is a public authority, the decision to redevelop Le Court was an...

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