In the recently decided decision of Trent Strategic Authority v Jain, the House of Lords considered the legal responsibilities of regulatory authorities when taking enforcement action through the courts.
In October 1998 the Health Authority, exercising its regulatory powers under the Registered Homes Act 1984, applied to a magistrate for an order, under section 30 of the Act, to immediately cancel the registration of the home. The application was made ex parte, so the home’s owners were not aware of the application being made and did not attend court. The order was granted, took immediate effect and so the home closed. The owners successfully appealed to the Registered Home Tribunal but by the time their appeal was heard, their business no longer existed and the residents had all been moved on. The owners claimed damages from the Health Authority for negligently seeking the order which closed the home.
The Care Standards Act 2000 (CSA) governs care home registration today. However, section 20 of the CSA is drafted in the same terms as section 30 of the 1984 Act. So, although the 1984 Act has been repealed, this judgment could have implications for the current system of care standards regulation.
Their Lordships confirmed:
- Regulatory authorities taking enforcement action through the courts, or a tribunal, do not owe a common law duty of care to people affected by the action. The home's owners in this case therefore failed in their claim for damages against the regulatory authority.
- Regulators may face claims for damages under the Human Rights Act 1998 (HRA) where enforcement activity is inappropriately taken. Their Lordships indicated that making ex parte applications for urgent cancellation under the CSA may not be compliant with the HRA, and made suggestions as to how the process could be modified to ensure compliance with the HRA.
This judgment may well prompt legislative changes to address the potential HRA issue with the CSA, and other similar regulatory regimes. However, in the meantime, bodies exercising regulatory functions will need to consider the steps necessary to ensure that their regulatory activity is compliant with the Human Rights Act.