The Human Rights Act & Outsourcing Public Services

The Human Rights Act places a legal duty on all public authorities to respect, protect and fulfil human rights wherever possible. However, with an increased number of services that were once delivered by traditional public bodies now being contracted out to private organisations, there is increasing confusion about who owes these duties. This has created a barrier to people accessing their human rights in practice. This page explains what a “public authority” is, why it matters, and what we think needs to happen to support everyone in the UK to access their human rights.

What is a public function?

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”.

The definition of “public authority” under the Human Rights Act includes:

core public bodies i.e. organisations formally established and publicly funded to deliver a state service, like the NHS or police forces; and
“any person certain of whose functions are functions of a public nature”. This is what’s known as a “hybrid public body” and can include organisations such as private companies and charities contracted by the State.

This means a body doesn’t need to be a traditional public body to have legal duties under the Human Rights Act. The emphasis is on the nature of the service being delivered (is it “generally expected to be performed directly or indirectly by the State”?) and not the nature of the body delivering it.

Why is it important that private bodies carrying out public functions have a legal duty to uphold people’s human rights?

When it introduced the Human Rights Act to Parliament, the then-UK Government wrote a White Paper explaining that a situation where “public authorities in the United Kingdom are not required as a matter of domestic law to comply with [human rights was] no longer adequate, given the importance which it attaches to the maintenance of basic human rights in this country”.

This is because human rights are designed to provide fundamental protections for us all in our interactions with the State – and most of our interactions with the State are through public authorities and their staff, such as the doctors in our hospitals, the teachers in our schools and the officers in our police forces. Increasingly, this list includes private organisations and staff contracted by core public bodies, such as support workers in private care homes and officers in housing associations.

The structure of these organisations and the nature of their staff’s employment might be different but their impact on our lives, and on our human rights, are much the same. A private school has as much impact on our education as a state one, just like private and public hospitals both influence our health and wellbeing, and private and public prisons both limit our liberty.

“[The decisions private care providers are making] are not any different to the ones the NHS are making…It’s often the same staff too who move between [services] just with different hats on.” - Daisy, RITES Committee Lived Experience Expert

Human rights protections cannot, and should not, be based on how the State fulfils its duties and whether services are delivered directly or contracted out – which could differ region-by-region or even person-by-person. Not only would this undermine the Human Rights Act’s aim to improve accountability in public services, it could also create a two-tier system whereby some people who are owed a duty by the State have weaker human rights protections than others purely because the service they are accessing has been contracted out.

What is BIHR concerned about?

The lack of clarity on who has a legal duty to protect human rights can cause problems for both people accessing services and staff working within them. As the Joint Committee on Human Rights said, “It is clearly unsatisfactory that private and voluntary sector organisations should enter into contracts to provide essential public services without knowledge or consideration of whether they are responsible for protecting fundamental human rights.”

Without clear guidance that sets out their legal obligations, it is harder for staff to make (and defend) rights-respecting decisions – particularly when contending with busy services, complex policies and resource constraints.

“the Human Rights Act has given us a legal, objective, decision making framework, provided by no other law or policy, to ensure rights are protected and people and staff are safe." - Sarah, NHS Worker

It is also harder for people accessing services to bring challenges when their rights are being put at risk. One example came to light recently in the case of Sammut v Next Steps Mental Health Care [2024]. This concerned a man called Paul, who was placed in a private care home by the NHS and his local council for after-care under the Mental Health Act.

Paul's Story & Mental Health Act Aftercare

Paul had schizophrenia and was kept in hospital under the Mental Health Act. Following a best interests review in February 2018, he was moved to Next Steps Care Home, a private facility. Manchester City Council, the Manchester Clinical Commissioning Group and NHS England together paid for Paul’s care under S117 of the Mental Health Act.

In the care home, Paul was deprived of his liberty. The door was always locked and there was a secure fence outside. It appears the care home applied to the Local Authority for a Deprivation of Liberty Safeguards authorisation but it had not yet been authorised. After just over a year at Next Steps Care Home, Paul died of pneumonia and intestinal issues related to side effects of an anti-psychotic medication. There is a medication that counteracts these side effects, but Paul was not given it.

Paul’s family took a case to court, arguing that the care home was a carrying out a public function for the purposes of the Human Rights Act and so owed Paul a duty to uphold his human rights. Paul’s family said both the home and Greater Manchester NHS Foundation Trust had breached Paul’s right to liberty (Article 5), along with his right to be free from inhuman and degrading treatment (Article 3) and his right to private life (Article 8).

However, the Court found that the care home was not carrying out a public function, putting a lot of weight on the fact that the care home didn’t have any statutory powers to deprive Paul of his liberty. The Court said that while in another case, a private hospital was found to be carrying out a public function when it kept someone in hospital using the Mental Health Act, the care home was just carrying out “business for profit”.

Paul’s family was therefore unable to bring a human rights claim against the care home. The Court has not said yet whether Greater Manchester NHS Foundation Trust breached Paul’s human rights.

Despite his care being fully arranged and funded by the State, Paul was left without direct human rights protections because the provider was hired by, rather than part of, the NHS.

Paul’s case highlighted a loophole in human rights protections that could affect people accessing not just mental health care but a wide variety of services.

“Other groups of people who might be affected by this judgment include children in private social care settings, of which there are a growing number. It might also apply to NHS-funded hospice care, because that is often provided by charities. It could potentially apply in school settings. Free schools, academies and private specialist residential schools where lots of disabled people are placed may no longer have the protection of the Human Rights Act, or at least it might be in doubt. This is an enormous problem, and none of us understood this until Mr Sammut’s case.” – Dr Lucy Series, oral evidence, Joint Committee on Human Rights Legislative Scrutiny on the Mental Health Bill

NHS Continuing Care

There is a risk that people accessing other types of care arranged by the State may be put in a similarly vulnerable position – for example, people accessing NHS continuing healthcare. This is a type of care arranged and funded solely by the NHS, but the Joint Committee on Human Rights has raised concerns that “there is no way to enforce [the] human rights” of people placed in private settings in the same way as the rights of those in state facilities or whose care is arranged under the Care Act (explained below). It has been noted by the Equality & Human Rights Commission that, “The courts have ruled that for patients who are detained under the Mental Health Act (1983) a private hospital is performing a ‘public function’ under the HRA. However, there is no case law relating to other categories of patient. Private hospitals treating NHS patients may not have obligations under the HRA.”

In a 2017 case, the Department for Health reportedly confirmed that those in private care homes under NHS continuing healthcare “can benefit from the protections that the Human Rights Act can bring”. However, as this has not been clarified publicly, it has done little to clear up the confusion and solidify people’s human rights protections in practice.

Shakar's Story & Asylum Accommodation

Similar concerns about a loophole in human rights protections have arisen in other areas where services that would previously have been provided by the State have been contracted out to private organisations. One example is asylum accommodation.

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”.

While the Court did acknowledge that the Home Office still owed Shakar a human rights duty, it said that Serco, who was providing and managing her housing and with whom Shakar would have the most interaction, did not. This makes it harder for people like Shakar to access their rights in practice.

Without direct protection, people have limited options to enforce their human rights. For the Human Rights Act to function as Parliament intended, human rights must be accessible and must take into account the realities of public services and the way they operate.

What has been done in the past?

Parliament tried to close the loophole for private care providers after the case of YL v Birmingham City Council [2007].

84-year-old YL was placed in a private care home by Birmingham City Council. When YL was informed she had to leave the home within 28 days, she brought a court case arguing this interfered with her Article 8 right to private life and home. However, the Court said that the private care home was not carrying out a public function and so did not have a legal duty to protect YL’s human rights.

Parliament passed 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 Human Rights Act if the care is arranged or paid for by a local authority, in part or in full, under a specific set of powers. However, as Paul’s case demonstrates, restricting human rights duties to only those commissioned under a set list of powers means there will still be people who slip through the gaps and are left without direct protections. If Paul’s care had been exactly the same but had been arranged under the Care Act, the care home would have had a legal duty to protect his human rights. As the care was arranged under the Mental Health Act, it didn’t.

What does BIHR think should happen?

Right now, the Mental Health Bill is being going through Parliament to decide if it will become law. Baroness Keeley and Baroness Barker have proposed a change to the Mental Health Bill that would include a clause that explicitly says that when services are providing after-care under the Mental Health Act, they are carrying out a public function and so have legal duties to uphold people’s human rights.

This would mean that people like Paul (whose story is explained above) would be able to directly enforce their human rights. We urge Parliamentarians to support this amendment to close a loophole that is leaving people without vital protections.

What other protections are in place at the moment?

It’s important to remember that core public authorities cannot “contract out of” their legal duties under the Human Rights Act. For example, if a public authority owes someone a housing duty and pays a private company to provide them with accommodation, the public authority still has a duty to uphold that person’s human rights. The private company might be carrying out a public function and so also have a duty, but that doesn’t replace or negate the public authority’s duty.

“The state cannot absolve itself of responsibility for such public law duties … by delegating its responsibility to private bodies. If arrangements are made with a private company to provide [a public service], responsibility for the exercise of the public law duty is not delegated, but remains with the [State].” - Ali v Serco

This means that if you think your human rights have been put at risk when accessing a public service that has been delivered by a private organisation, you can still raise the issue with the core public body responsible for the service. This might be an NHS Trust, the Home Office, the Department for Work & Pensions or Social Services. Please note that BIHR cannot take cases or give you advice on a personal situation; the Get Help page on our website lists some organisations that may be able to help you if you are facing a human rights issue.

How can organisations find out more about their potential human rights legal duties?

BIHR works with public bodies and services to upskill staff on human rights law and provide practical tools to help them make rights-respecting decisions and embed a culture of respect for human rights across organisations. We’ve worked with core public bodies, such as NHS Trusts; regulators, such as the Housing Ombudsman Service; and charities and non-profits, like the Scottish Recovery Consortium.

We can work with you on Practice Lead programmes and making sustainable change; on staff workshops and confidence-building sessions; and on resources that can be co-produced with people accessing services. Our human rights capacity-building work centres around not just discussion and presentation but practice exercises and real-life story activities.

“I know a lot more than I did before … real-world examples really helped me to understand how people’s rights are affected and how this applies to my casework.” - Participant in BIHR’s human rights programme for the Housing Ombudsman Service

We have seen how this approach helps to boost staff’s confidence when talking about human rights – particularly in complex areas such as housing. This increased knowledge and confidence can then support them to raise issues and make changes that lead to positive outcomes. For example, 72.41% of survey respondents from the Housing Ombudsman Service said that after our human rights programme, they would “consider if a landlord has given due regard to its obligations under the Human Rights Act.”

Alongside the increase in confidence, we also typically see an increase in support for the Human Rights Act following our programmes. Far from the idea that human rights are a burden, we find consistently hear from public body workers across all sectors that greater understanding of their legal duties under the Human Rights Act provides clarity, improves working relationships, and enables them to advocate for and provide vital support to the people they work with.

“I was able to use my new-found knowledge and confidence in terms of human rights to support a young person at her Mental Health Act Tribunal Meeting recently… As a result of challenging practice in the tribunal, the Judge ruled that the hearing could not continue, which was positive for the young person, as a number of things resulted [including that] the young person said that they had a new-found respect for me and this has helped therapeutic relationships as a result.” – Example from BIHR’s work with staff in inpatient Children & Young People’s Mental Health Services

Through our work with public body staff and commissioned services, we often find people, even those who are classed as public body workers, find current guidance around Section 6 and the definition of public bodies confusing. However, the Equality & Human Rights Commission advises organisations, “If you are not sure whether your organisation is likely to be subject to the [Human Rights Act], it is advisable, both to avoid the risk of a claim being brought against you and as a matter of good practice, that you carry out your business in a way which complies with [human] rights.”

Find out more about our human rights programmes