Social Welfare


Businesses - care homes - human rights - local authorities' powers and duties

Johnson & ors (appellants) v Havering London Borough Council (respondent) & Secretary of State for Constitutional Affairs (interested party) & National Care Association (intervener); YL (by her litigation friend the official solicitor) v Birmingham City Council & ors: HL (Lords Bingham of Cornhill, Scott of Foscote, Mance, Neuberger of Abbotsbury, Baroness Hale of Richmond): 20 June 2007

The appellant (Y) appealed against a decision ([2007] EWCA Civ 26, [2007] 2 WLR 109) that a private care home was not performing the functions of a public authority under section 6(3)(b) of the Human Rights Act 1998 when providing her with care and accommodation.



Y was a resident of a care home run by a healthcare company (S). Her placement had been arranged by the respondent local authority pursuant to its duties under section 21 of the National Assistance Act 1948. The local authority funded the placement in large part, a top-up fee being paid by Y's family and a nursing care element being funded by the NHS.



Following allegations about the conduct of Y's family during visits, S had proposed to transfer Y to a different home. In response, she invoked section 6(3)(b) and article 8 of the European Convention on Human Rights.



The issue was whether a privately-owned care home, when providing care to a resident pursuant to agreements made with a local authority under sections 21 and 26 of the 1948 Act, was performing functions of a public nature for the purposes of section 6(3)(b), and was thus a public authority obliged to act compatibly with convention rights.



Held (Lord Bingham and Baroness Hale dissenting), S was not exercising functions of a public nature within the meaning of section 6(3)(b). The rationale of the section was to ensure that those bodies for whose acts the state was answerable before the European Court of Human Rights should be subject to a domestic law obligation not to act incompatibly with convention rights.



The state could, in some circumstances, remain responsible for the conduct of a private law body to which it had delegated state powers, but the mere possession of special powers conferred by Parliament did not of itself mean that a body had functions of a public nature; equally, there could be bodies without special statutory powers amenable to judicial review. It was necessary to look at the context in which, and the basis on which, a contractor acted, and in every case the ultimate focus had to be on the nature of the functions being undertaken, Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2003] UKHL 37, [2004] 1 AC 546 considered.



Y had been placed with S pursuant to the local authority's duties under section 21, and the legislation distinguished clearly between a local authority with a statutory duty to arrange care and accommodation, and a private company providing services with which the local authority contracted on a commercial basis in order to fulfil its duty.



The actual provision, as opposed to the arrangement, of care and accommodation for those unable to arrange it themselves was not an inherently governmental function. The duty under section 21 was a safety net, conditional on care and attention not being otherwise available. If a person had sufficient capital and could arrange care and accommodation themselves, then the local authority would not be involved further, and there was no basis for suggesting that a private care home could somehow be exercising functions of a public nature in relation to those who funded themselves.



In providing care and accommodation, S acted as a private, profit-making company, and that motivation pointed against treating it as a body with functions of a public nature.



A private care home provided services for its residents that did, and should, not depend in their nature or quality on the person with whom it contracted to provide such services, and any submission leading to the conclusion that those who funded themselves had less legal protection than those placed in the home by the local authority was inherently questionable.



Though their contractual arrangements differed, it was not to such an extent that publicly-funded residents needed additional protection, and care homes had to treat privately and publicly-funded residents with equality, R v Servite Houses ex p Goldsmith [2001] LGR 55, R (on the application of A) v Partnerships in Care Ltd [2002] EWHC 529, [2002] 1 WLR 2610 and R (on the application of Beer (t/a Hammer Trout Farm)) v Hampshire Farmers Markets Ltd [2003] EWCA Civ 1056, [2004] 1 WLR 233 considered.



Appeal dismissed.





Real Property



Dedication - highways - intention - landowners - public rights of way - statutory interpretation - sufficiency of evidence

R (on the application of (1) Godmanchester Town Council (2) Leslie Ernest Drain) (claimants)) v Secretary of State for Environment, Food and Rural Affairs (defendant) & (1) Cambridgeshire County Council (2) Yatten [2007]: HL (Lords Hoffmann, Hope of Craighead, Scott of Foscote, Neuberger of Abbotsbury, Baroness Hale of Richmond): 20 June 2007
An issue arose in joined cases as to the effect of the presumption in section 31(1) of the Highways Act 1980.



The appellants in both cases claimed that land owned by the respondents had achieved the status of a public path by 20 years' public use. The cases turned on whether the landowners had shown 'sufficient evidence' that they had no intention during the relevant 20-year period to dedicate the land as a public path. The issues for determination were whether the 'intention' in section 31(1) had to be communicated contemporaneously to members of the public using the way, or whether an intention held by the landowner, but not revealed to anybody, could constitute 'sufficient evidence'; whether the phrase 'during that period' in the proviso to section 31(1) meant 'during the whole of that period' or 'at some point during that period'.



Held, upon the true construction of section 31(1), 'intention' meant what the relevant audience, namely the users of the way, would reasonably have understood the landowner's intention to be.



The law as stated by Denning LJ in Fairey v Southampton CC [1956] 2 QB 439 and Hobhouse LJ in Secretary of State for the Environment v Beresford Trustees [1996] NPC 128 was correct.



The test was objective: the reasonable user would have to understand that the landowner was intending to disabuse him of the notion that the land was a public highway. Outside the criminal law and parts of the law of torts, it was common to use the word 'intention' in an objective sense.



The Court of Appeal had taken too narrow a view of the purpose and effect of the proviso. It had been drafted against the background of the common law. The presumption of dedication at common law involved a dialogue between the landowner and the public. A landowner had to communicate his intention to the public in some way if he was to satisfy the requirements of the proviso, Mann v Brodie (1884-85) LR 10 App Cas 378 considered and Folkstone Corp v Brockman [1914] AC 338 superseded. Furthermore, if an uncommunicated intention sufficed to satisfy the proviso, then the elaborate and time-consuming measures provided for in sections 31(3) to 31(6) would have no point.



The phrase 'during that period' in the proviso to section 31(1) meant 'at some point during that period'. The intention not to dedicate did not have to be continuously demonstrated for the whole 20-year period, R v Secretary of State for the Environment ex parte Blake [1984] JPL 101 and Merstham Manor Ltd v Coulsdon and Purley Urban DC [1937] 2 KB 77 considered.



Appeals allowed.



George Laurence QC, Ross Crail (instructed by JJ Pearlman with Zermansky & Partners) for the appellants; Timothy Mould QC, David Blundell (instructed by the Treasury Solicitor) for the respondents; Edwin Simpson (instructed by Blandy & Blandy) for the interveners.





Immigration



Abuse of power - asylum seekers - indefinite leave to remain - right to respect for private and family life - backlog of asylum applications - delays in determining applications - fairness

R (on the application of S) v Secretary of State for the Home Department: CA (Civ Div) (Lords Justice Carnwath, Moore-Bick, Mr Justice Lightman): 19 June 2007
The appellant secretary of state appealed against a decision ([2007] EWHC 51) quashing removal directions relating to the respondent asylum seeker (S) on the ground that its delay in the handling of S's application for asylum was excessive and unfair.



R had entered the UK in September 1999 at the same time as his cousin and they had both applied for asylum. The cousin's application had been refused in February 2002, but he had been granted exceptional leave to remain and, later, indefinite leave to remain. R's application for asylum had never been dealt with.



In January 2001, a policy decision had been made to defer consideration of older asylum applications in order to meet performance targets agreed with the Treasury for the processing of new applications. In late 2001 and April 2002, there had been policy changes regarding Afghan asylum seekers following the removal of the Taliban regime.



R had eventually been interviewed in March 2004 and his application for asylum had been rejected a few days later. His appeal in June 2004 had been dismissed on the basis that although he had been subject to persecution in the past, the removal of the Taliban meant that he was no longer at risk. Discretionary leave to remain had also been refused.



In subsequent judicial review proceedings, the judge had found that although the test for unfairness and abuse of power in R (on the application of Rashid) v Secretary of State for the Home Department [2005] EWCA Civ 744, [2005] Imm AR 608 had not been met, R had nevertheless been treated unfairly.



The issues for determination at the appeal hearing were the extent to which delay alone was relevant; whether there had been an abuse of power; and whether article 8 of the European Convention on Human Rights was invoked.



Held, the sole basis on which R, having exhausted all other procedural routes, would ordinarily be able to resist removal was a claim under article 8, and the general principle was that mere delay would not normally improve the prospects of such a claim, Strbac v Secretary of State for the Home Department [2005] EWCA Civ 848, [2005] Imm AR 504 applied, Shala v Secretary of State for the Home Department [2003] EWCA Civ 233, [2003] INLR 349 and Akaeke v Secretary of State for the Home Department [2005] EWCA Civ 947, [2005] Imm AR 701 distinguished.



The postponement of old applications had been an arbitrary and unlawful decision amounting to an abuse of power. Although the result in Rashid seemed just and was binding, the reasoning was not wholly convincing. It sought to transform 'abuse of power' into a magic ingredient able to achieve remedial results, which other forms of illegality could not match, and that appeared to be a considerable extension of existing authorities, R (on the application of Zeqiri) v Secretary of State for the Home Department [2001] EWCA Civ 342, [2002] Imm AR 42, R v Inland Revenue Commissioners ex parte Unilever PLC [1996] STC 681 and R v Secretary of State for Education and Employment ex parte Begbie [2000] 1 WLR 1115 considered.



Rashid emphasised the scope of the secretary of state's remedial powers; the court itself had no power to grant indefinite leave to remain, nor did it have power to direct the secretary of state to grant it. The court could, however, conclude that a legally material factor in the secretary of state's exercise of his discretion was the correction of injustice, and in an extreme case, it could hold that the unfairness was so obvious and the remedy so plain that there was only one way in which the secretary of state could exercise his discretion.



The present case differed materially from Rashid because in the latter, there had been a legally-defective decision, whereas the present case concerned an absence of a decision which had been caused, in principle, by a deliberate and unlawful resolution to postpone a category of cases dictated solely by political reasons and without any regard for fairness and consistency. There was no reason why the dicta in H Lavender & Son Ltd v Minister of Housing and Local Government [1970] 1 WLR 1231 should not apply equally to the present circumstances. It was implicit in statute that claims for asylum would be dealt with within a 'reasonable time' and that concept allowed scope for variation depending on volume of applications, available resources and differences in the circumstances and needs of different groups of asylum seekers. Fairness and consistency were also vital considerations.



The court was entitled to conclude that R would have obtained exceptional leave to remain and, later, indefinite leave to remain, and that his failure to do so was caused by illegality.



The fact that R had been in the UK for over seven years and had established himself as a good worker and a model citizen supported his claim. Given the finding regarding abuse of power, it was unnecessary to explore other article 8 issues.



Appeal dismissed.



Robert Jay QC (instructed by the Treasury Solicitor) for the appellant; Manjit Gill QC, Basharat Ali (instructed by Aman Solicitor Advocates) for the respondent.





Civil Procedure



Court of Appeal - deceit - fraud - Lloyd's Names - perjury - reopening appeals

William Jaffray & ors v Society of Lloyds: CA (Civ Div) (Lords Justice Buxton, Moore-Bick):

20 June 2007
The applicant Lloyd's Names (J) sought to reopen the decision of the Court of Appeal in the present case.



J claimed that they had become Names on the strength of representations made by Lloyd's, which had turned out to be untrue and had exposed them to large losses in respect of asbestos-related liabilities.



The judge held that no relevant representations had been made. The Court of Appeal held that Lloyd's had made untrue representations about its system of auditing and ability to make reasonable estimates of the outstanding liabilities of syndicates. However, J had not proved that Lloyd's did not believe the representations to be true, nor that Lloyd's had been reckless as to whether the representations were true or false. Therefore, J's claims were dismissed.



J sought to reopen the appeal on the basis that further evidence had come to light, which showed that the judge had been misled by Lloyd's evidence at the trial as to the state of its knowledge and belief, and thus that the Court of Appeal, which necessarily based itself on that same evidence, had been similarly misled.



J argued that since the application was made under rule 52.17 of the Civil Procedure Rules (CPR), the court should start from, and apply, the plain wording of that rule, and in particular the reference in rule 52.17(1)(a) to appeals being reopened 'in order to avoid real injustice', and that that general rule prevailed over any previous jurisprudence that might be argued to limit the jurisdiction to any particular category of cases.



Held, the CPR, as rules of court, could not extend the jurisdiction of the court from that which the law provided, but could only give directions as to how the jurisdiction should be exercised, British South Africa Co v Companhia de Mocambique [1893] AC 602 applied. Also, it was apparent from the wording of rule 52.17(1) that the rule limited, rather than extended, the operation of the jurisdiction.



The Court of Appeal had jurisdiction to reopen an appeal in a case of alleged misconduct by a court, in that the judge was said to have been biased, Taylor v Lawrence (Appeal: Jurisdiction to Reopen) [2002] EWCA Civ 90, [2003] QB 528 considered. Taylor v Lawrence was not authority for extending the jurisdiction to reopen an appeal on grounds of bias to a case where the allegation was that the court had been misled by one of the parties; and there was authority directly denying the existence of jurisdiction in such a case, Flower v Lloyd (No1) [1877] LR 6 Ch D 297 and Jonesco v Beard [1930] AC 298. Both those cases held that the proper remedy was to bring a collateral action to set aside the judgment allegedly obtained by fraud.



In cases since Taylor v Lawrence, the Court of Appeal had assumed that the jurisdiction did extend to cases of fraud as well as to cases of bias. However, even on that assumption, there was no doubt that the jurisdiction should only be exercised in exceptional cases where there was no alternative remedy.



If the appeal were to be reopened on the basis that new evidence arguably demonstrated perjury, the court would have to be satisfied that the new evidence was admissible under Ladd v Marshall principles, that corruption of the earlier process had in fact occurred, and that that corruption affected the result of the first trial.



It followed that to proceed by way of reopening the appeal would require the sort of enquiry into the substance of the perjury and its effect on the original proceedings that would be provided by a collateral action. Unless the case was so clear as to be uncontestable, the Court of Appeal was not equipped to undertake that enquiry, nor able to give any immediate remedy. It was therefore not merely a matter of jurisdiction, but also a matter of practicality that dictated that in all but the most exceptional case, such complaints should be pursued by way of a fresh action to set aside the original decision rather than by reopening the appeal. The applications did not come near to satisfying the necessary tests, and even if the points raised were a great deal more arguable, the only possible form of procedure would be a fresh action to set aside the judgment, Sohal v Sohal (Application for Permission to Appeal) [2002] EWCA Civ 1297 considered, Couwenbergh v Valkova [2004] EWCA Civ 676, [2004] CP Rep 38 distinguished.



Application refused.



Philip Jenkins (instructed by Grower Freeman) for the main body of applicants; in person for the applicant Butler; David Foxton QC (instructed by Freshfields Bruckhaus Deringer) for the respondent.