YL v. Birmingham City Council and Ors.

YL was an 84-year old woman suffering from Alzheimer’s disease, who was entitled to free accommodation provided by the Birmingham City Council under s 21 of the National Assistance Act 1948 (the 1948 Act). The council, with the power given to it by s 26 of the same Act, contracted a private health service provider to place YL in one of their homes. The council made all the payments required for the private care home, apart from a small top-up fee which was paid for by the YL’s family.  Subsequently, the private agency sought to end the contract with the council and remove the patient from their health facility.

YL brought an action against the council and others (including the private service provider) seeking, among other things, declarations that it would not be in her best interests to be removed from the facility and that the private agency, by accommodating YL, was performing public functions within the meaning of s 6(3)(b) of the Human Rights Act 1998 (the 1998 Act). The private agency would consequently be able to be held liable under s 6(1) of the 1998 Act for a breach of her right to life, right to freedom from torture and inhumane or degrading treatment or punishment, and right to respect for private and family life under the Convention for the Protection of Human Rights and Fundamental Freedoms (the ECHR), were it to move her out of the home.

The Court held that the private care home had not breached YL’s rights by refusing to accommodate her, and was not performing functions of a public nature in allowing her to reside at the care home. A distinction was to be drawn between the functions of a local authority in making arrangements for those in need of care and accommodation who were unable to make such arrangements themselves, and that of a private company contracted by the authority on a commercial basis to provide such care and accommodation.

The Court also held that the actual provision of such care and accommodation by the private company, as opposed to its regulation and supervision pursuant to statutory rules, was not an inherently public function and fell outside the ambit of section 6(3)(b).

It therefore followed that a resident of a private care home placed there pursuant to sections 21 and 26 of the 1948 Act, though retaining public law rights against the authority which had arranged the accommodation, did not have ECHR rights against the care home. Accordingly, the claimant’s appeal was dismissed.

“A number of the features which have been relied on by YL and the intervenors seems to me to carry little weight. It is said, correctly, that most of the residents in the Southern Cross care homes, including YL, are placed there by local authorities pursuant to their statutory duty under section 21 of the 1948 Act and that their fees are, either wholly or partly, paid by the local authorities or, where special nursing is required, by health authorities. But the fees charged by Southern Cross and paid by local or health authorities are charged and paid for a service. There is no element whatever of subsidy from public funds. It is a misuse of language and misleading to describe Southern Cross as publicly funded. If an outside private contractor is engaged on ordinary commercial terms to provide the cleaning services, or the catering and cooking services, or any other essential services at a local authority owned care home, it seems to me absurd to suggest that the private contractor, in earning its commercial fee for its business services, is publicly funded or is carrying on a function of a public nature. It is simply carrying on its private business with a customer who happens to be a public authority. The owner of a private care home taking local authority funded residents is in no different position. It is simply providing a service or services for which it charges a commercial fee.” Para. 27.

“In providing care and accommodation, Southern Cross acts as a private, profit-earning company. It is subject to close statutory regulation in the public interest. But so are many private occupations and businesses, with operations which may impact on members of the public in matters as diverse for example as life, health, privacy or financial well-being. Regulation by the state is no real pointer towards the person regulated being a state or governmental body or a person with a function of a public nature, if anything perhaps even the contrary. The private and commercial motivation behind Southern Cross's operations does in contrast point against treating Southern Cross as a person with a function of a public nature. Some of the particular duties which it has been suggested would follow–a duty not to close the home without regard to the Convention right to a home of publicly funded residents, and perhaps even a duty to give priority to accepting such residents into the home–fit in my view uneasily with the ordinary private law freedom to carry on operations under agreed contractual terms, even accepting (as I would) that, if the Convention applied, a private care home would be able to invoke that freedom as a relevant factor under article 8(2).” Para. 116.

“In my judgment, it is of particular importance in relation to the issue which we have to decide that a proprietor of a care home is not given significant, or indeed (as far as I am aware) any, coercive or other statutory powers, over its residents, whether they are in the care home pursuant to an arrangement with a local authority or otherwise. If proprietors had such powers, that would be a powerful reason for justifying the conclusion that a function was ‘public in nature’. Running a prison, discharging a statutory regulatory regime (Lord Nicholls’s examples in Aston Cantlow [2004] 1 AC 546, para 9), maintaining defence (as is mentioned by Lord Bingham) and providing police services, which are plainly functions falling within section 6(3)(b), carry with them such powers.” Para. 163.