Hybrid public bodies: What is a “public authority” under the Human Rights Act?

Section 6 of the Human Rights Act (HRA) says “it is unlawful for a public authority [also known as a public body] to act in a way which is incompatible with a Convention right”. In this explainer, we look at the different types of organisations that are classified as public bodies and why this might include more organisations than many people expect.

Core public bodies

A “core” public body is what most people think of when they think of a “public body”. This is an organisation that is formally established and publicly funded to deliver a state service – such as the NHS or police forces. These bodies are ultimately accountable to the government and therefore have duties under the HRA.

Hybrid public bodies

The HRA also specifies that “public authority” includes “any person certain of whose functions are functions of a public nature”. This is what’s known as a “hybrid public body”.

Hybrid public bodies are private organisations or charities that also deliver public services. These bodies have duties in relation to the public services they offer, but not the private services. For example, a private organisation that runs prisons and also offers private security services would only have responsibilities under the HRA in relation to their work running prisons.

This means a body doesn’t need to be a traditional public body to have legal duties under the HRA. The emphasis is on the nature of the service being delivered (are they “generally expected to be performed directly or indirectly by the State”?) and not the nature of the body delivering it. This is really important as we no longer live in a time where functions we traditionally associate with the State, such as education and healthcare, are always being delivered directly by the State. This broader definition seeks to prevent a gap in protections where the State has contracted out delivery of one of its functions. There is no single test to identify a public function, but a good indicator is whether the body delivering the service is being funded by the State to do so in place of a statutory service.

The rights of hybrid public bodies

In Mr and Mrs Wallbank’s case discussed below, the court noted that “giving a generously wide scope to the expression 'public function' in section 6(3)(b) will further the statutory aim of promoting the observance of human rights values without depriving the bodies in question of the ability themselves to rely on Convention rights when necessary”. Under Article 34 of the ECHR, rights can be claimed by “any person, non-governmental organisation or group of individuals”. The Joint Committee on Human Rights gave the example that “newspapers and publishers regularly invoke the right to freedom of expression, not only in litigation, but also in their approach to Government policy” – like when Mirror Group Newspapers published photos of Naomi Campbell coming out of a Narcotics Anonymous meeting and the Court had to balance Naomi’s right to privacy with the newspaper’s right to freedom of expression. Core public authorities cannot be “victims” of human rights breaches, whereas hybrid public authorities can in some cases.

In real life

Church councils: Mr and Mrs Wallbank’s story

The House of Lords (then the highest court in the UK) first considered the idea of “hybrid” public bodies in the case of Mr and Mrs Wallbank v the Church Council of the Parish of Aston Cantlow. People who own church land, known as “lay rectors”, are responsible for repairing the chancel (around the altar) of churches. Mr and Mrs Wallbank were lay rectors who received a notice saying they had to pay almost £100,000 to repair their church’s chancel. They said the church council was a public authority with duties to respect their human rights and that the notice interfered with their Article 1, Protocol 1 right to peaceful enjoyment of possessions. The Court said, “a hybrid public authority is not a public authority in respect of an act of a private nature” and asked, “what, then, is the touchstone to be used in deciding whether a function is public for this purpose?” It said there cannot be a single test because of the diverse nature of governmental functions but relevant factors include, “the extent to which in carrying out the relevant function the body is publicly funded, or is exercising statutory powers, or is taking the place of central government or local authorities, or is providing a public service.” The Court ultimately decided that the church council was not a public authority, saying “it plainly has nothing whatever to do with the process of either central or local government. It is not accountable to the general public for what it does. It receives no public funding, apart from occasional grants from English Heritage for the preservation of its historic buildings.”

Private schools: Jeremy’s story

In 1985, seven-year-old Jeremy went to an independent school in Devon, which did not have any publicly funded pupils and did not receive direct financial support from the Government. After the school used corporal punishment on Jeremy, his mother wrote to them to complain but was simply told he should leave the school. Jeremy and his mother argued the treatment impacted his wellbeing and breached his Article 8 right to private life and his Article 3 right to be free from inhuman or degrading treatment. Discussing whether the UK Government’s responsibilities under the HRA were engaged, the Court said, “the State has an obligation to secure to children their right to education under Article 2 of Protocol No. 1 [and] the fundamental right of everyone to education is a right guaranteed equally to pupils in State and independent schools, no distinction being made between the two”. The Court also said a school’s disciplinary system is part of the right to education, drawing on Article 28 of the United Nations Convention on the Rights of the Child which says, “States Parties shall take all appropriate measures to ensure that school discipline is administered in a manner consistent with the child’s human dignity”. It said, “the State cannot absolve itself from responsibility by delegating its obligations to private bodies or individuals” and so the school’s actions did engage the responsibility of the UK Government.

Housing associations: Teresa’s and Susan’s stories

Teresa and her three children were living in a council house which was managed by the Local Authority until it was transferred to Poplar – a housing association which was created by the Local Authority to manage some of its houses. Poplar then tried to evict Teresa, which she said breached her Article 8 right to private and family life and home. Teresa said that Poplar was a hybrid public body and therefore had a duty to protect her human rights. The Court agreed that, “taking into account all the circumstances, including the closeness of the relationship between the local housing authority and the housing association and the fact that [Teresa] at the time of the transfer of the tenancy to the housing association, was a sitting tenant of the local housing authority”, Poplar was a hybrid public authority carrying out a public function.

In 2009, a woman called Susan brought a similar case against another registered social landlord, London and Quadrant Housing Trust (L&Q). L&Q tried to evict Susan after it said she had failed to pay her rent for eight weeks. Susan said this breached her Article 8 right to home and private life. While L&Q was not set up by the Local Authority, the Court nonetheless found that it was a hybrid public authority and that ending Susan’s tenancy was a public function because “the act of termination is so bound up with the provision of social housing that once the latter is seen, in the context of this particular body, as the exercise of a public function, then acts which are necessarily involved in the regulation of the function must also be public acts. The grant of a tenancy and its subsequent termination are part and parcel of determining who should be allowed to take advantage of this public benefit.”

Home Office accommodation: Shakar’s story

Shakar applied for asylum in the UK and the Home Office had a legal duty to house her while considering her application. The Home Office contracted Serco, a private company, to provide housing on their behalf. Shakar’s application was refused and she was told she had to leave her house. She was told that if she did not leave by 13^th June 2018, Serco would ask a court to evict her. However, on 29^th July 2018, instead of going to court, Serco changed the locks on Shakar’s house so she couldn’t get back in. Shakar said this breached her Article 8 right to private life and Article 3 right to be free from inhuman or degrading treatment. The Court decided that the Home Office was the one that ended Shakar’s tenancy, not Serco. Serco took action after this had already been done, and its responsibilities came from its commercial contract with the Home Office. The Court therefore said Serco was not “carrying out acts of a public nature”. However, the Court also said that “If arrangements are made with a private company to provide accommodation, responsibility for [human rights duties] is not delegated, but remains with the Home Secretary”. This means the Home Office still has duties to uphold the human rights of people living in asylum housing even though if it has contracted management of the housing to a private company.

Private hospitals: A’s story

A was 31 years old and detained under Section 3 of the Mental Health Act because of a severe personality disorder which caused her to harm herself and others. She was staying in a private psychiatric hospital but her care and treatment there was funded by payments from her Local Health Authority. A went to that ward because it focused on treatment of personality disorders through psychology and psychotherapy. However, after she arrived, the ward changed to focus on treating mental illness, primarily through medication. This meant A could not access the proper treatment, which she said breached her Article 8 right to private life and Article 3 right to be free from inhuman or degrading treatment. The Court acknowledged that the hospital was providing care under a commercial contract with the Local Health Authority, but said it was carrying out “important statutory functions” under the Mental Health Act and that “the need for the hospital's patients to receive care and treatment which may result in their living in the community again is a matter of public concern and interest”. It therefore decided the hospital was a hybrid public body and the decision to change the focus of the ward was “an act of a public nature” because “whether facilities can and should be provided, and adequate staff made available” for treatment is part of its statutory duty.

Private care homes: YL’s story

YL was an 84-year-old woman with Alzheimer’s disease who was placed in a private care home by Birmingham City Council. The Council had a contract with the care home and paid for YL’s care. The care home said YL’s daughter’s and husband’s behaviour towards their staff meant they were no longer able to care for YL and wrote to her daughter, saying YL had 28 days to leave the home. YL said this was a breach of her Article 8 right to home. The Court considered whether the care home was a hybrid public body and therefore had duties under the HRA. It said it didn’t “regard the actual provision, as opposed to the arrangement, of care and accommodation for those unable to arrange it themselves as an inherently governmental function”. It said that by arranging care on someone’s behalf, a Local Authority was merely putting people who cannot make their own arrangements in the same position as “self-funders” who have private arrangements with care homes. The Court did not believe there should be different rights for privately and publicly funded residents and therefore said the care home was not a hybrid public authority. In the end, the council agreed to fund supervised visits for YL’s family and she was able to stay in the home. The care home and the family then began discussions about arrangements for unsupervised visits.

There were, however, lots of concerns about the finding that private care homes did not have duties under the HRA. This led to the introduction of the Care Act 2014, which says that a registered care provider, in the course of providing personal care at home or residential accommodation with nursing or personal care, is carrying out a public function for the purposes of the HRA if the care is arranged or paid for by a local authority, in part or in full. This means that all care providers have duties under the HRA where they are contracted or funded by a Local Authority under the powers specified in the Care Act.

During the passage of the Care Act, the House of Lords said that it should say that all provision of care is a public function, whether private or publicly funded or arranged. However, the House of Commons thought this went too far and that “the Human Rights Act is not intended to cover entirely private arrangements”.

However, across the UK there are regulators of health and social care, such as the Care Quality Commission (CQC) in England or the Care Inspectorate in Scotland. They themselves are public bodies so have a legal duty to respect, protect, and fulfil human rights in all their actions, including supervising health and social care services. This means that private care homes that are regulated by the CQC or Care Inspectorate must still adhere to human rights standards.