What defines a ‘public authority’ – and why it matters

Only organisations deemed to be “public authorities” under the Human Rights Act 1998 are held accountable for any infringements of the responsibilities contained with the Act.

Whilst “core” public authorities are easily distinguished due to their obvious public function (examples include the army, police force and local government), “hybrid” authorities require more consideration as they are often privately owned with a private nature to their business.

10 factors which suggest a body could be a “public authority”

1. Its role is closely assimilated to or takes the place of the local authority;

2. It is linked to the Government or its function could be described as governmental;

3. It provides a public service;

4. The state regulates, supervises and inspects its performance;

5. It is subject to judicial review or is publicly accountable for its actions;

6. It has charitable objectives;

7. It has enhanced statutory powers, particularly where such powers are enforceable against the public;

8. Its rights and responsibilities are found in public law rather than private law;

9. It is likely that Parliament intended the Act to cover its actions; or

10. Parliament would not have intended to afford it protection under the Act.

Background

In earlier cases involving housing providers, stock transfer organisations were always considered to be public authorities when taking action against tenants because their role was so closely assimilated to that of the local authority that they were considered to be carrying out public functions.

In contrast, a part self-financing care home with only a degree of public funding would not necessarily be considered to be “standing in the shoes” of the local authority, and is more likely to be a private body in relation to these activities. This has led the boundaries of the definition of what constitutes a “public authority” to be somewhat blurred.

In more recent years the Appeal Courts have considered this question in relation to a number of such hybrid authorities.

Aston Cantlow v Wallbank

This case concerned a chancel repairs liability notice that was served on local residents by a parochial church council. Although the Court of Appeal held that the Council was a public body, its decision was overturned by the House of Lords two years later.

The House of Lords emphasised that there can be no universal test for the definition of “public authority” but there are indicative factors, such as the body in question:

• being publicly funded
• exercising statutory powers
• taking the place of local authorities or the Government and
• providing a public service.

The decision also highlighted that a public authority under the Act will not itself be afforded human rights.

Therefore, one question to consider in future cases is whether Parliament would have intended the body in question to have human rights.

YL v Birmingham City Council and Others

This case concerned a private care home which provided accommodation and care for an elderly resident. In a majority decision (3:2), the House of Lords held that the care home was not a public authority for the purposes of the Act in this instance.

This was mainly because the activities of the care home were not considered governmental or subject to judicial review and the operation of the home was in no way funded by the local authority.

Lord Neuberger accepted that an individual’s rights under the Human Rights Act should not be prevented where a core public authority’s function was contracted out to a private company. However, he distinguished this case as the home had the duty to arrange for the provision of care but not to provide the care and accommodation itself.

The dissenting judgments of Baroness Hale and Lord Bingham placed greater emphasis on Parliament’s intentions in the creation of the Act.

Lord Bingham thought that Parliament drafted the Act with the fact that public functions were being privately contracted out in mind and the Act should specifically encompass this type of scenario.

Baroness Hale felt that because the individual’s care was paid for by the local authority it should be held that the home was performing public functions.

R (on the application of Susan Weaver) v London & Quadrant Housing

Here, the claimant was an established tenant of the Registered Social Housing Provider, London & Quadrant Housing (L&Q).

Following years of the claimant failing to pay rent effectively, L&Q served a notice for possession based on the arrears.

The claimant argued that using the mandatory ground was a contravention of her Article 8 Convention right.

The High Court decided that L&Q was to be regarded as a public authority under the Act because it managed and allocated housing stock and this was a function of public nature.

On appeal, this decision was affirmed by the Court of Appeal who highlighted that it was important to consider: the source of a body’s power, the nature of the activities in issue and that the character of the Act is likely to be influenced by the character of the function of which it forms part.

How can I find out more?

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