How to determine whether a body is a public authority for the purposes of the

HRA:

There are effectively 3 types of body for the purposes of the Act:
1. Wholly public bodies (e.g. government departments, local authorities, police, prison
service)
2. Hybrid bodies
3. Others

Hybrid bodies will not be treated as public bodies for the purposes of the HRA if “the
nature of the act is private”.

In Poplar Housing and Regeneration Community Association Ltd v Donoghue [2001]

EWCA Civ 595, the Court stressed that the definition of what is a public authority should
be given a generous interpretation. The Court went on to identify a number of factors
which would suggest that a function was public:

• Statutory authority
• Control over the function by another body which is a public authority
• Acts which might be of a private nature being enmeshed in the activities of a public
body
• Closeness of the relationship with a public body
• Transfer of responsibilities between public and private sectors.

In this case, the applicant was provided interim accommodation in council property. The
local council transferred the property to Poplar Housing and Regeneration Community
Association Ltd, a housing association. Poplar Housing began possession proceedings
and the applicant sought to rely on Article 8. The Court concluded that the role of the
housing association was “so closely assimilated” to that of the council that it was to be
considered a public authority in this instance.
In looking at the issue, the Court did note considerations that in this case were neutral or
irrelevant:
- Supervision by a regulatory body
- Carrying out functions which would be public if they were carried out by a public
bodies
- Performing activities in what is perceived is the public interest.

In R (Heather and others) v Leonard Cheshire Foundation [2002] EWCA Civ 366 - The
claimants were long stay residents in a home run by LCF, a charity. They had been
placed in the home by social services under section 26 National Assistance Act
1948. Their fees were partly paid from their benefits and partly by the local
authority. The LCF decided to close the home. The claimants sought to challenge
this as a breach of their rights under Art 8.

The court held that this was not a case where the local authority was trying to divest itself
of its obligations under Art 8 by contracting out its obligations under the National
Assistance Act 1948. It still retained its obligations under Art 8. If the placements had
started after the Human Rights Act came into force it would have been possible for the
residents to require the local authority to ensure that their rights under Art 8 were
protected by contract.

There were 3 decisive factors which led to the conclusion that LCF’s functions were not
public:

1. The nature of the service provided did not differ between those residents who were
publicly funded and those who were privately funded.
2. There was no other evidence of a “public flavour” to the activities of LCF. LCF was
not standing in the shoes of the local authority.
3. The fact that the claimants would lose the protection of Art 8 against LCF if it was
not performing a public function was a circular argument. Art 8 does not change the
classification of a function.

In R (A) v Partnerships in Care Ltd [2002] EWHC 529 a detained patient brought a
challenge to the private hospital’s decision to change the focus of a ward’s activities with
the result that there would be less treatment available for those who were mentally ill.
The Court held that such a hospital would be a public authority as far as the functions of
making arrangements for care to be provided were concerned. The Court thought it
significant that:

• The patients’ Health Authority may well have discharged its obligations,
but those on the hospital were freestanding.
• Provision of staff and facilities, the functions at issue here, had a ‘statutory
underpinning’.
• There was public interest in the provision of adequate facilities, because
detention might otherwise be prolonged.
• The reason for the hospital’s decision (departure of staff) did not impact
on the nature of the function challenge.
• Detained patients have no choice about receiving the service or from
whom they receive it; their position was analogous to those detained in private
prisons.

Summary of criteria for assessing whether a function is that of a public body or not
• Is there a statutory authority or underpinning to the function? Is the body in
question controlled by a public authority? Is there a link e.g. are board members
also members of a public authority?
• Is there a public interest in the function? Is the function being exercised over
public land?
• Is there a difference between the way a service is provided when it is publicly
funded and when it is privately funded?
• A public body is “essentially a reference to a body whose nature was
governmental in the broad sense of that expression” (Aston Canlow and Wilmcote
with Billesley Parochial Church Council v Wallbank [2003] 3 All ER 1213).