Human Rights: Preliminary issues

Question 1

Does the applicant have standing?

Answer 1

s. 7(1) grants a victim of an unlawful act of PA the right to bring legal proceedings against the authority
s. 7(7) provides that the term “victim” has the same meaning as under Art 34 of the ECHR.
Art 34: “any person, NGO, or group claiming to be … a victim” (ie with legal personality)
•Is the applicant a ‘victim’?
Victim = “directly affected” by actual/potential breach (Klass v Germany)

Question 2

Has the potential violation been committed by a Public Authority (PA)?

Answer 2

s.6 HRA - 3 types of bodies: s. 6(1) core PA - bodies which are clearly public (Aston Cantlow); s. 6(3)(b) hybrid PA (Poplar Housing v Donoghue; R(Heather) v Leonard Cheshire Foundation; Aston Cantlow; YL v Birmingham City Council; R(Weaver) v London Housing Trust); s. 6(5) - private bodies

Question 3

Is the action in time?

Answer 3

s. 7(5) - one year

Question 4

Was it committed within the jurisdiction?

Answer 4

Art 1 ECHR, Al Skeini - no requirement of citizenship of a signatory State

Question 5

Poplar Housing v Donoghue

Answer 5

housing association was so enmeshed in the activity of local authority that it was a functional PA. Factors:

• the fact that body is a charity or is not motivated by profit doesn’t mean that it performs public function
• statutory authority for what is being done can help to establish the act as being public
• the extent of control over the function exercised by a core public body
• proximity of relationship between the private body and the delegating authority

Question 6

Aston Cantlow v Wallbank (test for core PA)

Answer 6

• possession of special powers
• democratic accountability
• public funding in whole or in part
• an obligation to act only in the public interest
• a statutory constitution

Question 7

R(Heather) v Leonard Cheshire Foundation

Answer 7

charitable foundation provided accommodation in a care home for residents with disabilities whose places were being funded by local authority under the statute. They wanted to re-develop the home so that the places of the residents would be reduced. Residents argued violation of Art 8. Court held that s. 6(3)(b) did not apply to the managers of a care home. There was no material distinction between services provided to privately funded residents and residents funded by local authority

Question 8

YL v Birmingham City Council

Answer 8

provision of care and accommodation in privately run care homes for the elderly. the court held that it isn’t functional PA. It is operating in a commercial market with commercial competitors. But, different position if the managers of privately owned care home enjoyed special statutory powers over residents entitling them to restrain them or to discipline them in some way, or to confine them to their rooms or to the care home premises

Question 9

R(Weaver) v London Housing Trust

Answer 9

housing association which was registered social landlord, was liable under HRA in respect of their action in terminating the claimant’s tenancy. Court held, if any of the functions which a body performs are public, it will be seen as a hybrid PA

Question 10

Aston Cantlow v Wallbank (test for hybrid PA: whether or not the relevant function is public)

Answer 10

• the extent to which, in carrying out the function, the body is publicly funded; or
• exercising statutory power; or
• taking the place of central government or local authority; or
• is providing a public service
  *

Question 11

s. 145 Health and Social Care Act 2008 (after YL)

Answer 11

social care contracted through National Assistance Act is a function of a public nature for the purposes of s. 6(3)(b) HRA