Jut over a year ago, the Lords settled the debate about whether care homes carry out functions of a public nature, and so are public authorities subject the the Human Rights Act; it decided, in YL v Birmingham, that they don’t, and aren’t. But that wasn’t the answer the government had wanted, and they’re going to get their way because the Health and Social Care Bill is due to get its third reading in the Lords today. Section 144 is the key provision: it provides that where a care home provides accommodation under (in England and Wales) the National Assistance Act 1948, it is to be taken as exercising a public function. So, the human rightsists have got their way. Lord Hoffman spoke in the House of Lords the other week about a “regrettable tendency” to see the whole of criminal justice in terms of human rights; I think that regrettable tendency extends to all areas of social policy, and I doubt this legislative change will actually help residents of care homes. They’d be better off with better regulation under the Care Standards Act 2000.
Perhaps no one should be surprised, then, if the courts retreat from YL and fall back into a rather mushy and expansive view of what a functional public authority is. An old government legal friend has drawn to my attention last week’s judgment in R (Weaver) v London and Quadrant Housing Trust in which the Administrative Court has decided, purportedly applying YL, that a registered social landlord is a public authority for human rights law purposes. Paras. 52-63 of Richards LJ’s judgment are the important ones. The key factors influencing his decision were the amount of public subsidy the Housing Trust receives, together with the fact that through guidance it in effect implements government housing policy; the fact that public housing stock has been transferred to it, and that it has a duty to cooperate with local housing authorities.
I am entirely unconvinced by this: the majority in YL saw the involvement of public funds and regulation as of marginal importance, and certainly not decisive. They thought something more was needed – like special powers to detain residents – before giving them accommodation in return for money could be said to amount to a public function. I think Weaver is not so much an application of YL as a retreat from it; and back we are in the old mush and fudge in which the courts used to look at the skein of relationships between the body in question and undoubted public authorities, instead of focusing of the nature of the functions it carries out.
Let’s see what the government thinks of the decision in Weaver. If it accepts the result, fine: at least it will be consistent with its policy in the Health and Social Care Bill (I can’t myself see any relevant difference between care homes and registered social landlords). If it doesn’t, then I’m afraid it has only itself to blame, and we’re likely to get into increasing legislative whimsy about what types of body should be subject to the Human Rights Act, and which not.