Introduction and statutory scheme
15.1Section 73 of the Care Act 2014 provides that a person is to be taken as exercising a function of a public nature, for the purposes of section 6(3)(b) of the Human Rights Act (HRA) 1998 when providing care or support if:
•the care or support is arranged by an English local authority, or paid for (directly or indirectly, in whole or in part); if that is done
•under sections 2, 18, 19, 20, 38 or 48 of the Care Act 2014; and
•the care provider is registered and provides (i) care and support to an adult in the course of providing personal care in the place where the adult is residing; or (ii) residential accommodation together with nursing or personal care.
15.2Similar provision is made in respect of Wales, Scotland and Northern Ireland: section 73(1)(b), (c) and (d) of the Care Act 2014.
15.3It seems as though Parliament’s intention was limited to imposing a public law responsibility only in the case of breaches of the ECHR.
15.4Nonetheless, private sector providers may have other public responsibilities thrust upon them, by accident or design:
•the imposition of limited responsibility under section 73 of the Care Act 2014 may possibly be taken as a factor pointing towards a private care provider discharging public functions so as to be amenable to wider public scrutiny, through judicial review;
1But see R (JL) v Birmingham CC [2007] UKHL 27, (2007) 10 CCLR 505. •as discussed in more detail at para
5.17 above it seems that bodies to whom section 73 of the Care Act 2014 applies will be under the public sector equality duty (PSED);
•in addition, it seems as though registered social landlords are discharging a public function for the purposes of the Human Rights Act 1998 when they manage their social housing stock and may also be amenable to judicial review in such cases, including when they are, at the same time, providing a form of social care.
2R (Weaver) v London & Quadrant Housing Trust [2009] EWCA Civ 587, [2010] 1 WLR 363. 15.5Such developments seem logical: why is there a divide between public and private law? why should not any organisation that receives public money have at least some responsibility towards relevant sections of the public?