Private care homes and the Human Rights Act

Jonathan Auburn and Benjamin Tankel examine a 'home for life' case that touched on the application of the Human Rights Act to private or semi-private care homes.

The case of R (Chatting) v Virdian Housing and another [2012] EWHC 3595 (Admin) was an unusual “home-for-life” case arising in the context of a long-running dispute over the closure of a private care home. A previous court challenge had been compromised (at appellate stage) on the basis of a consent order agreeing not to remove two residents whilst they still needed only social care rather than nursing care. The local authority assessed residents as needed some nursing care, and a dispute arose as to the terms of the previous consent order.

The court held that the defendants had acted lawfully in deciding to move the individuals out of this care home setting. Two of the four grounds of claim turned on the interpretation of the consent order, and so are not of much wider significance.

A third ground was that the private care home had infringed the residents’ Article 8 rights due to the way the closure had been implemented, those rights arising due to the alleged home-for-life promise, the very long period of residence (17 years) and need for continuity, and the fact that the residents were frail and vulnerable. The private home argued that the HRA did not apply or its obligations ceased on transfer of the care home function.

The court held that Art 8 did apply to this private care home due to the Health and Social Care Act 2008, s 145, and could in principle be infringed by the way in which a private home ceases to provide residential care. However there was no breach in this case as there had been no promise of a “home-for-life” and the long period of past provision did not oblige the private provider to continue providing accommodation at this home.

The final ground of claim was that the decision to move the residents failed to have due regard to those residents’ best interests (these residents lacking capacity to decide on their accommodation). The court rejected this argument. 'Best interests' was not the yardstick by which all care decisions were to be made. Due regard had been paid to the claimant's welfare in the decision-making process.

Comments

The application of the HRA to private or semi-private care homes has been an extremely contentious area. When the HRA was first exacted there was a significant weight of opinion that such homes were hybrid public bodies within the scope of the HRA. The YL v Birmingham case held that this was not the case, to the surprise of many. The government then enacted section 145 of the Health and Social Care Act 2008 to reverse YL. Through these changes what was less-often articulated were the circumstances in which a private care home would be likely to breach the HRA.

The answer from this case is that it will not be enough to point to a very long period of residence of a person rendered vulnerable by virtue of age and infirmity, and their consequent need for continuity of care. The threshold for unlawful infringement of Article 8 is likely to be very high. Leaving aside a case as shocking as, for example, Barrett v Enfield, it is unclear when private care homes will be at risk of being held to be in breach of Art 8.

The case is also notable for its treatment of the issue of the best interests of incapacitated adults. The court is correct in its approach: 'best interests' is a means of substituting for the individual’s own decision-making, not that of the local authority. While the best interests of residents is obviously highly important in such a decision, it is not determinative of the care home or local authority’s obligations under social care legislation and the HRA.

Jonathan Auburn and Benjamin Tankel are barristers at 39 Essex Street.