R (Johnson and Others) v Havering London Borough Council; YL v Birmingham City Council

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Buxton,the Master of the Rolls,Lord Justice Dyson,The Master of the Rolls
Judgment Date30 January 2007
Neutral Citation[2007] EWCA Civ 26,[2007] EWCA Civ 27
Docket NumberCase No: C1/2006/1693

[2007] EWCA Civ 26

[2007] EWCA Civ 27

[2006] EWHC 1714 (Admin)

[2006] EWHC 2681 (Fam)

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

ON APPEAL FROM THE HIGH COURT OF JUSTICE

MR JUSTICE BENNETT

FAMILY DIVISION

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

MR JUSTICE FORBES

Before

The Master of the Rolls

Lord Justice Buxton

Lord Justice Dyson

Before

The Master of The Rolls

lord Justice Buxton

lord Justice Dyson

Case No: C1/2006/1693

Case No: C1/2006/2226

Between
Johnson and Others
Appellants
and
The London Borough of Havering
Respondent
and
The Secretary of State for Constitutional Affairs
Interested Party
and
The National Care Association
Intervener
Between
YL (by her Litigation Friend the Official Solicitor)
Appellant
and
(1) Birmingham City Council
(2) Southern Cross Healthcare
(3) OL
(4) VL
Respondent
and
The Secretary of State for Consitutional Affairs
Intervener

Ms Jessica Simor (instructed by Hossacks) for the Appellants

Mr Roger McCarthy QC and Mr Jason Coppel (instructed by the London Borough of Havering) for the Respondent

Mr Philip Sales QC and Ms Cecilia Ivimy (instructed by The Solicitor to Her Majesty's Treasury) for the First Intervener

Ms Cherie Booth QC and Professor Aileen McColgan (instructed by Lester Aldridge) for the Second Intervener

Mr Ian Wise (instructed by Irwin Mitchell) for the Appellant

Mr David Carter (instructed by The Legal Department of Birmingham City Council) for the First Respondent

Mr Ivan Hare (instructed by Lester Aldridge) for the Second Respondent

Ms Helen Mountfield (by written submissions, instructed by Public Law Solicitors) for the Third and Fourth Respondents

Mr Philip Sales QC and Ms Cecilia Ivimy (instructed by The Solicitor to Her Majesty's Treasury) for the Intervener

Lord Justice Buxton

The nature of the appeals

1

The court is concerned with two appeals. In C1/2006/1693 ( Johnson) Mrs Johnson and others, all of whom are resident in a care home maintained by the London Borough of Havering [Havering] under the provisions of section 21 of the National Assistance Act 1948 [the 1948 Act], seek to prevent the transfer by Havering of the residents' and other care homes to private sector control, as a local authority is in principle empowered to do under section 26 of the 1948 Act. In C1/2006/2226 ( YL) the Official solicitor represents a resident placed in a private sector care home by the responsible local authority Birmingham City Council [Birmingham] in respect of whom the care home seeks, or originally did seek, to terminate the contract for her care and to remove her from the home. In Johnson it is contended that the transfer of control of the homes would in itself amount to a breach of the residents' rights under the European Convention on Human Rights, principally under article 8. In YL it is contended that to remove Mrs YL from the care home would be a breach of her rights under article 8.

2

The claim in Johnson was rejected by Forbes J, and the claim in YL by Bennett J. The two appeals have been heard together because they were thought to raise the same point, as to the susceptibility to control under the European Convention on Human Rights of private care homes that are used by local authorities under section 26 powers: that question turning on whether and in what circumstances the homes are persons certain of whose functions are functions of a public nature under section 6(3)(b) of the Human Rights Act 1998. In YL that issue arises directly from the proposed action of the care home, and the present proceedings take the form of a preliminary point to determine whether the care home, the second defendant in the action brought by the Official Solicitor, is

in providing care and accommodation for [Mrs YL]…exercising a public function for the purposes of section 6(3)(b) of the [1998 Act]

3

The way in which the central issue arises in Johnson is rather more elusive. J's claim is based upon the contention that whilst she at present enjoys Convention rights, conspicuously but not exclusively article 8 rights, against Havering as a public authority, those rights will be lost, or at least substantially diminished in content, if her home is transferred to a private body. Havering, supported by the Secretary of State intervening, denies that the change would involve a breach of the Convention, and that is the first issue that has to be addressed in the Johnson appeal. Both of those parties however further respond by contending that in any event nothing will be lost by the residents, because the new private owners of the homes will themselves be subject to Convention obligations by reason of section 6(3)(b); and that point is, perhaps confusingly, also urged by the claimants as an alternative to the point set out at the beginning of this paragraph. That latter issue accordingly raises in principle the same question as the preliminary point in YL.

4

Because of what was seen as the general interest of the “public authority” issue under section 6(3)(b) a large number of organisations were good enough to intervene in the appeals in order to assist us in our task. The Secretary of State for Constitutional Affairs, although not in any way concerned with the transactions in Johnson, and not concerned with the general policy area involved, which is the responsibility of the Secretary of State for Health, was nonetheless given permission to intervene in that case, in the light of his policy responsibility for the implementation of the 1998 Act. As already noted, he argued that section 6(3)(b) would apply to the respective care homes once the residents were transferred to them; and it was the Secretary of State's desire to pursue that argument to this court, and indeed if needs be to the House of Lords, that caused another constitution of this court to grant permission to appeal to all parties. Since otherwise no argument would have been advanced in that appeal contrary to the contentions of the appellants and of the Secretary of State, and there was of necessity no appearance on behalf of any individual care home because the policy complained of had not yet been implemented, the National Care Association, which represents the interests of private care homes, was given permission to intervene. We received submissions on its behalf from Ms Booth QC. In addition, submissions were received in writing from the Disability Rights Commission, represented by Mr David Wolfe who had appeared before Forbes J, and Help The Aged, in the event equally represented by Mr Wolfe. Both of these bodies supported the position of the Secretary of State. All of these intervening submissions were taken into account in the court's consideration of YL, though as a matter of formal order the Secretary of State was given permission to intervene in that appeal also.

5

As a result of these arrangements we received 184 pages of skeleton argument and bundles containing 106 authorities, and were addressed by eight teams of advocates over a period of two whole days.

The facts

6

It is important to record that there are many issues of fact and policy involved in both of the cases. We are only concerned with the threshold question, of whether issues under the Convention arise at all. If they do arise, there will remain much to be said and debated as to the facts, and in particular as to the justification under article 8(2) for the course proposed by the respective defendants. Put shortly, in Johnson Havering submitted a detailed account of its consideration of the future of its care homes, in the light of the need to improve facilities and conditions both for residents and for staff, and of how it reached the conclusion that the preferred option was to close some homes and to transfer others to the private sector. In YL the point of departure of the proceedings was an unfortunate dispute as to the behaviour in the home of the husband and daughter of Mrs YL that in the view of those running the home rendered impossible the continuation of the family's connexion with it. Since we are not concerned with the merits of any of this it is not necessary to go further into the underlying facts. Anyone who thinks that more information is necessary can refer to the judgments of Forbes and Bennett JJ, both of which, if I may respectfully say so, give a full and clear account of the respective backgrounds. We simply need to remember, in fairness to both defendants, that they have put forward full, robust and potentially persuasive justifications for their decisions, quite apart from arguing the question of whether those decisions are in any event justiciable.

The form of this judgment

7

As already explained, there is an issue that arises in Johnson but not in YL as to whether the proposed transfer falls within the ambit of the Convention even if the receiving private home is not a public authority within section 6(3)(b). I deal with that issue first; and then consider the “public authority” point that is potentially relevant in Johnson and is the only issue in YL. Under the latter head a major issue arises as to whether or not this court is bound by its previous decision in R(Heather) v Leonard Cheshire Foundation [2002] 2 All ER 936 [ Cheshire].

Johnson: does the transfer of care homes from Havering to the private sector engage the Convention in any event?

The argument for the appellant, and...

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