Beverley Lang says the implications of the recent House of Lords judgment on private care homes are not as bad as have been painted


The House of Lords has held that a privately-run care home cannot be sued for a breach of the Human Rights Act 1998 (HRA) by a resident of the home: see YL v Birmingham City Council, Southern Cross & Others [2007] UKHL 27.



The judgment has been widely criticised in the press. Age Concern described it as a 'catastrophe for the 300,000 vulnerable older people who live in independent care homes'. The Alzheimer's Society said: 'All care home residents should be protected by the Act... we urgently need legislation to close this glaring loophole.' But a closer examination of the case shows it was decided consistently with existing domestic and convention law, and care home residents do enjoy substantial protection of their rights.



YL was an elderly woman with Alzheimer's disease. Birmingham City Council arranged residential accommodation for her in a care home owned and managed by Southern Cross, a private-sector care provider. Birmingham paid the fees, with a contribution from YL's family. Members of YL's family were reported to be violent and aggressive in the home. After unsuccessful attempts to resolve the problem, Southern Cross gave written notice to terminate the placement, in accordance with the contract.



YL asked the court to declare that it would be a breach of her human rights to terminate her placement.



YL was entitled to bring a claim against Birmingham under the HRA because it was a 'public authority' with continuing responsibility to ensure that she was suitably accommodated and cared for. The Court of Appeal in R (Heather & Ors) v Leonard Cheshire Foundation and Another [2002] 2 All ER 936 had already established that residents in a private care home under threat of closure could not bring a claim against the care home under the HRA because it was not a 'public authority'. A majority of the House of Lords in YL reached the same conclusion, holding that Southern Cross was not exercising 'functions of a public nature' within the meaning of section 6(3)(b) of the HRA. The care home was not exercising any statutory powers or duties on behalf of Birmingham. It was in the same position as any other commercial contractor providing services or goods for reward to a public body.



The judgment of the Lords was entirely consistent with convention law. In the Strasbourg-based European Court of Human Rights, claims are brought against the government in respect of its acts, and the acts of public bodies carrying out governmental functions, such as local authorities. The European Convention on Human Rights does not impose any duties or liabilities on private individuals or companies that are non-governmental. Exceptionally, the state may be in breach of a positive obligation by failing to protect one private individual from another, for example, in Z v UK 34 EHRR 3, where the local authority was held liable for failing to take into care children who were being neglected and abused by their parents. But in such cases, the private individuals (the parents in Z) are not directly liable.



The purpose of the HRA was to provide a remedy for a breach of the convention in the UK courts, which previously was only available in Strasbourg. It was not intended to extend the scope of the convention.



Critics of the Lords judgment say it fails to provide protection from ill treatment for vulnerable residents in care homes. However, Parliament has already met that need by means of a stringent regulatory framework. A care home proprietor must be registered under the Care Standards Act 2000 and then becomes subject to the Care Standards Regulations and the National Minimum Standards for Care Homes for Older People. These set out detailed requirements and prescribed standards, breach of which may result in criminal prosecution. The standards are enforced by the Commission for Social Care Inspection, which has power to carry out inspections, impose requirements, impose changes to conditions of registration, or apply to cancel the registration. The commission also has power to issue a formal caution or to take action to prosecute.



A further level of protection is provided by local authorities monitoring the detailed contractual standards imposed in the contracts with care home providers. Non-compliance may result in the suspension or termination of placements and contracts.



These safeguards provide a vastly more comprehensive and pro-active system for the protection of residents than can be achieved by extending the scope of the HRA. They are preventative and benefit all residents, not just those who have the resources to bring a claim in the High Court.



It is true that, under existing law, the only safeguard against termination of placement by a care home, in accordance with the terms of the contract, is a notice to quit and a court order. But the convention does not provide a right to be housed by a local authority in a particular home of the applicant's choosing. Nor does article 8 provide an absolute right to remain in one's own home - a public authority may justifiably interfere with a right to occupy a home (such as by compulsory purchase or possession proceedings) on legitimate grounds.



If a resident had the right to insist on remaining in a care home, when a sole proprietor wished to retire, or was in financial difficulties and needed to sell the property, there could be an unacceptable interference with the article 1 of protocol 1 rights of the proprietor under the convention.



About 60% of care beds in the UK are provided by individual care home owners running private establishments and owning only one to three homes. The big corporate providers, such as Southern Cross, cater for only 20% of the market.



The Court of Appeal considered that where there was a conflict of rights between the resident and the care home proprietor, the resident's rights would have to prevail. The Lords took a different view, holding that if the HRA applied to care homes, a care home proprietor would, in principle, be able to argue that he was terminating the placement for a legitimate reason and that the decision was justifiable. The uncertainty of outcome in such cases would have made litigation a certainty in almost every case. The majority judgment of the Lords has avoided this proliferation of litigation.



Beverley Lang QC of Blackstone Chambers in London appeared as counsel for Southern Cross