15.7R (Heather and Callin) v The Leonard Cheshire Foundation [2002] EWCA Civ 366, (2002) 5 CCLR 317
A charity was not performing a public function when making decisions to close one of its care homes
Facts: the claimants were residents in a care home, placed there by local authorities under the National Assistance Act 1948. They applied for a judicial review of the Foundation’s decision to close the home, to redevelop it, submitting that it breached their rights under Article 8 ECHR.
Judgment: the Court of Appeal (Lord Woolf LCJ, Laws and Dyson LJJ) held that the Foundation was a private body and it was not performing a public function, so as to be amenable to judicial review, or come within the HRA 1998:
35. The matters already referred to, can however, be put aside. In our judgment the role that Leonard Cheshire Foundation (LCF) was performing manifestly did not involve the performance of public functions. The fact that LCF is a large and flourishing organisation does not change the nature of its activities from private to public.
i) It is not in issue that it is possible for LCF to perform some public functions and some private functions. In this case it is contended that this was what has been happening in regard to those residents who are privately funded and those residents who are publicly funded. But in this case except for the resources needed to fund the residents of the different occupants of Le Court, there is no material distinction between the nature of the services LCF has provided for residents funded by a local authority and those provided to residents funded privately. While the degree of public funding of the activities of an otherwise private body is certainly relevant as to the nature of the functions performed, by itself it is not determinative of whether the functions are public or private. Here we found the case of R v HM Treasury ex p Cambridge University [2000] 1 WLR 2514 (ECJ) at pp 2523 2534/5, relied on by Mr Henderson, an interesting illustration in relation to European Union legislation in different terms to section 6.
ii) There is no other evidence of there being a public flavour to the functions of LCF or LCF itself. LCF is not standing in the shoes of the local authorities. Section 26 of the NAA provides statutory authority for the actions of the local authorities but it provides LCF with no powers. LCF is not exercising statutory powers in performing functions for the appellants.
iii) In truth, all that Mr Gordon can rely upon is the fact that if LCF is not performing a public function the appellants would not be able to rely upon Article 8 as against LCF. However, this is a circular argument. If LCF was performing a public function, that would mean that the appellants could rely in relation to that function on Article 8, but, if the situation is otherwise, Article 8 cannot change the appropriate classification of the function. On the approach adopted in Donoghue, it can be said that LCF is clearly not performing any public function. Stanley Burnton J’s conclusion as to this was correct.
Comment: see comment above on Servite Homes.