Administrative Law Human Right - Case Study Example

Running Head: Administrative Law Administrative Law Human Right of the of the Introduction: In this House of Lords decision it was held by a majority of 3 to 2 that a private care home providing care and accommodation for an elderly person under contract with a local authority was not exercising "functions of a public nature" within s 6(3)(b) of the Human Rights Act 1998. The case concerned YL, an 84-year-old woman suffering from Alzheimer's disease, who had been placed in a home by Birmingham City Council. Lord Mance said that s 6(3)(b) covered situations where functions of a governmental nature were discharged by non-governmental bodies. However, the modern form of the 1948 National Assistance Act made a clear distinction between a local authority with a statutory duty to arrange care and accommodation for those unable to arrange it themselves, and a private company providing services with which the local authority contracted on a commercial basis in order to fulfil its duty to arrange such care and accommodation. The issue in this appeal is whether a care home (such as that run by Southern Cross Healthcare Ltd), when providing accommodation and care to a resident (such as Mrs YL, the appellant), pursuant to arrangements made with a local authority (such as Birmingham City Council) under sections 21 and 26 of the National Assistance Act 1948, is performing "functions of a public nature" for the purposes of section 6(3)(b) of the Human Rights Act 1998 and is thus in that respect a "public authority" obliged to act compatibly with Convention rights under section 6(1) of that Act. Sections 21 and 26 of the National Assistance Act 1948 confer statutory powers and impose a statutory duty. The duty is imposed on the relevant local authority. It may be discharged by arranging for the provision of residential care in a home run by itself, or by another local authority, or by a voluntary organisation (such as the Leonard Cheshire Foundation) or by a private provider such as Southern Cross. These are alternative means by which the responsibility of the state may be discharged. Counsel for the Birmingham City Council laid great emphasis on the fact that its duty under the Act is to arrange and not to provide. This is correct, but not in my view significant. The intention of Parliament is that residential care should be provided, but the means of doing so is treated as, in itself, unimportant. By one means or another the function of providing residential care is one which must be performed. For this reasons also the detailed contractual arrangements between Birmingham, Southern Cross and Mrs YL and her daughter are a matter of little or no moment. The provision of residential care is the subject of very detailed control by statute, regulation and official guidance, and criminal sanctions apply to many breaches of the prescribed standards. The issue which your Lordships must decide, as expressed in paragraph 18 of the order of Ryder J of 12 September 2006, is whether the second Respondent, Southern Cross Healthcare Ltd ("Southern Cross"), "in providing care and accommodation for YL [the appellant] is exercising a public function for the purposes of section 6(3)(b) of the Human Rights Act 1998". Bennett J held, on 5 October 2006, that it was not. The Court of Appeal, on 30 January 2007, agreed: [2007] 2 WLR 1097. But these decisions are challenged before the House by YL, supported by the Secretary of State for Constitutional Affairs and by Justice, Liberty, the British Institute of Human Rights, Help the Aged and Age Concern England, each an independent body. It is convenient to refer, briefly, to the statutory and factual background to the formulation of this preliminary issue. Conclusion: These examples illustrate, I think, that it cannot be enough simply to compare the nature of the activities being carried out at privately owned care homes with those carried out at local authority owned care homes. It is necessary to look also at the reason why the person in question, whether an individual or corporate, is carrying out those activities. A local authority is doing so pursuant to public law obligations. A private person, including local authority employees, is doing so pursuant to private law contractual obligations. The nature of the function of privately owned care homes, such as those owned by Southern Cross, no different for section 6 purposes from that of ordinary privately owned schools or privately owned hospitals (nb some schools and hospitals may have special statutory powers over some pupils and patients eg reformatories in the olden days and mental hospitals these days), seems to me essentially different from that of local authority care homes. References Amnesty International (2004). Amnesty International Report. Amnesty International Publications. ISBN 0862103541 ISBN 1-887204-40-7 Alexander, Fran (ed) (1998). Encyclopedia of World History. Oxford University Press. ISBN 0198602235 Alston, Philip (2005). "Ships Passing in the Night: The Current State of the Human Rights and Development Debate seen through the Lens of the Millennium Development Goals". Human Rights Quarterly. Vol. 27 (No. 3) p.807 Arnhart, Larry (1998). Darwinian Natural Right: The Biological Ethics of Human Nature SUNY Press. ISBN 0791436934 Ball, Olivia; Gready, Paul (2007). The No-Nonsense Guide to Human Rights. New Internationalist. ISBN 1-904456-45-6 Barzilai, Gad. (2003). Communities and Law: Politics and Cultures of Legal Identities. Ann Arbor: University of Michigan Press. ISBN 0472113151 Chauhan, O.P. (2004). Human Rights: Promotion and Protection. Anmol Publications PVT. LTD. ISBN 812612119X. Cook, Rebecca J.; Fathalla, Mahmoud F. (September 1996). "Advancing Reproductive Rights Beyond Cairo and Beijing". International Family Planning Perspectives Vol.22 (No.3): p.115-121 Davenport, Christian (2007a). State Repression and the Domestic Democratic Peace. New York: Cambridge University Press. ISBN 0521864909 Davenport, Christian (2007b). State Repression and Political Order. Annual Review of Political Science. Donnelly, Jack. (2003). Universal Human Rights in Theory & Practice. 2nd ed. Ithaca & London: Cornell University Press. ISBN 0801487765 Ellerman, David (2005). Helping People Help Themselves: From the World Bank to an Alternative Philosophy of Development Assistance. Ann Arbor: University of Michigan Press. ISBN 0472031422 Esposito, John L. (2004). The Oxford Dictionary of Islam. Oxford University Press. ISBN 0195125592 Esposito, John L. (2005). Islam: The Staight Path. Oxford University Press. ISBN 0195182669 Finnis, John (1980). Natural Law and Natural Rights Oxford: Clarendon Press. ISBN 0198761104 Forsythe, David P. (2000). Human Rights in International Relations. Cambridge: Cambridge University Press. International Progress Organization. ISBN 3-900704-08-2 Forsythe, David P. (2005). The Humanitarians: The International Committee of the Red Cross Cambidge University Press. ISBN 0521848288 Freedman, Lynn P.; Isaacs, Stephen L. (Jan-Feb 1993). "Human Rights and Reproductive Choice". Studies in Family Planning Vol.24 (No.1): p.18-30 Ignatieff, Michael (2001). Human Rights as Politics and Idolatry. Princeton & Oxford: Princeton University Press. ISBN 0691088934 Glendon, Mary Ann (2001). A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights. Random House of Canada Ltd. ISBN 0375506926 Read More