House of Lords
Published June 21, 2007
YL v Birmingham City Council and Others
Before Lord Bingham of Cornhill, Lord Scott of Foscote, Baroness Hale of
Richmond, Lord Mance and Lord Neuberger of Abbotsbury
Speeches June 20, 2007
Where a private care home, under contract with a local authority, provided
care and accommodation for an elderly person which the authority had been
under a statutory duty to arrange, the care home was not exercising
functions of a public nature so as to allow her to claim a breach of duty
under the European Convention on Human Rights.
The House of Lords so held (Lord Bingham and Lady Hale dissenting) in
dismissing an appeal by a care home resident, YL, by her litigation friend
the Official Solicitor, from the Court of Appeal (Sir Anthony Clarke, Master
of the Rolls, Lord Justice Bux-ton and Lord Justice Dyson) (sub nom R
(Johnson and Others) v Havering London Borough Council; YL v Birmingham City
Council and Others (The Times February 2, 2007; [2007] 2 WLR 1097) upholding
the ruling of Mr Justice Bennett that the second defendant, Southern Cross
Health-care Ltd, fell outside section 6(3)(b) of the Human Rights Act 1998.
YL, aged 84 and suffering from Alzheimer’s disease, had been placed in the
home by the first defendant, Birmingham City Council, pursuant to its duty
under section 21 of the National Assistance Act 1948.
Section 21, as amended by section 195 of, and paragraph 2 of Schedule 23 to
the Local Government Act 1989, requires local authorities to make
arrangements for persons in need of car and attention by reason of age,
illness or disability for whom such care was not otherwise available.
The care home had sought YL’s removal after a dispute with the third and
fourth defendants, OL and VL, YL’s daughter and husband, whereupon
proceedings had been commenced on YL’s behalf in the Family Division seeking
declarations that it was in her best interests not to move her and that to
do so would breach her rights under articles 2, 3 and 8 of the Human Rights
Convention, contrary to section 6(1) of the 1998 Act.
The judge had dealt with the question whether the company was exercising a
public function within section 6(3)(b) as a preliminary issue.
Section 6 provides: “(1) It is unlawful for a public authority to act in a way
which is incompatible with a Convention right... “(3) In this section
‘public authority’ includes ... (b) any person certain of whose functions
are functions of a public nature... “(5) In relation to a particular act, a
person is not a public authority by virtue only of subsection 3(b) if the
nature of the act is private.”
Mr David Pannick, QC, Mr Ian Wise and Miss Naina Patel for YL; Mr
Andrew Arden, QC and Mr David Carter for Birmingham; Miss
Beverley Lang, QC and Mr Ivan Hare for Southern Cross; Ms
Helen Mountfield for OL and VL; Mr Philip Sales, QC and Ms
Cecilia Ivimy for the Secretary of State for Constitutional Affairs,
intervening; Mr Michael Fordham, QC, Miss Jessica Simor and Mr
Iain Steele for Justice, Liberty and the British Institute of Human
Rights, intervening. Mr Rabinder Singh, QC, Dr David Wolfe and Miss
Samantha Knights for Help the Aged and the National Council on Ageing,
intervening by written submissions; Mr Robin Allen, QC and Mr
David Wolfe for the Disability Rights Commission, intervening by written
submissions.
LORD BINGHAM, dissenting, said that those who qualified for residential care
under section 21 were, beyond argument, a vulnerable section of the
community. With children, mental patients and prisoners they were among the
most vulnerable.
If, as might be confidently asserted, Parliament had intended the 1998 Act to
offer substantial protection of the important values expressed in the
articles of the Convention given domestic effect by that Act, it could
scarcely have supposed that residents of privately run care homes, placed
there pursuant to sections 21 and 26 of the 1948 Act, would be unprotected.
The performance by private body A by arrangement with public body B, and
perhaps at the expense of B, of what would undoubtedly be a public function
if carried out by B was precisely the case which section 6(3)(b) was
intended to embrace.
Lady Hale delivered an opinion concurring with Lord Bingham.
LORD MANCE said that the issue of principle which the House had to address was
general and continuing, although the particular difficulties which led to
the litigation had happily resolved themselves.
Section 6 of the 1998 Act identified two types of public authority: “core”
public authorities who were to be so regarded in relation to all their
functions and “hybrid” persons with functions both of a public and of a
private nature who were only to be so regarded when the nature of their
particular act under consideration was public rather than private.
In Aston Cantlow and Wilmcote with Billesley Parochial Church Council v
Wallbank ([2004] 1 AC 546) the rationale of section 6 had been stated as
being to ensure that bodies carrying out the functions of government in the
United Kingdom observed the rights and freedoms set out in the Convention.
Lord Nicholls of Birkenhead had explained (at paragraph 9) section 6(3)(b) as
addressing situations where in the interests of efficiency and economy or
otherwise, functions of a governmental nature were discharged by
nongovernmental bodies.
He gave as obvious examples the running of prisons by private organisations
and the discharge of regulatory functions by organisations in the private
sector.
There was, however, no single test of universal application and none of the
specific examples given in Aston Cantlowwas close to the present case.
Case law from the European Court of Human Rights at Strasbourg also lacked
any case directly in point.
His Lordship said that powers or duties might in some circumstances be
delegated by a local authority to others, as under section 101 of the Local
Government Act 1972 or section 70 of the Deregulation and Contracting Out
Act 1994. However, no delegation of that sort existed in relation to the
council’s functions under section 21 of the 1948 Act.
Public funding was a factor to be considered, but the difficulty was where to
draw the line.
The injection of capital or subsidy into an organisation in return for
undertaking a noncommercial role or activity of general public interest
might be one thing: payment for services under a commercial contract with a
company aiming to profit commercially thereby was potentially quite another.
In every case the ultimate focus had to be upon the nature of the functions
being undertaken.
The modern form of the 1948 Act distinguished clearly between a local
authority with a statutory duty to arrange care and accommodation and a
private company providing services with which the local authority contracted
on a commercial basis in order to fulfil that statutory duty.
In his Lordship’s opinion, the actual provision, as opposed to the
arrangement, of care and accommodation for those unable to arrange it
themselves was not an inherently governmental function.
The duty on a local authority under section 21 constituted a safety net,
conditional upon care and attention being not otherwise available.
In contrast with the position relating to the National Health Service, the
default position was one in which the local authority was not involved. Its
involvement was aimed at making arrangements, including funding, which put
those in need in effectively the same position as those who could fund and
make their own arrangements.
Once such arrangements were made, the actual provision of care and
accommodation was a different matter, which did not need actually to be
undertaken by the local authority and could take place in the private
sector, as it did for those who or whose relatives were able to make
arrangements for themselves.
In providing care and accommodation, Southern Cross was subject to close
statutory regulation in the public interest. But so were many private
occupations and businesses, with operations which might impact on members of
the public in matters as diverse as life, health, privacy, education or
financial well being.
Regulation by the state was no real pointer towards the person regulated being
a state or governmental body or a person with a function of a public nature.
Some differences did of course exist between care home residents whose
placement had been arranged under section 21 and those whose placement had
been privately arranged.
A privately placed resident would either be party to a contract with the care
home or be resident as a result of a contract covering his or her residence
made by a representative or relative. In contrast, the only contract
covering the publicly funded resident’s placement might be between the local
authority and the care home.
On the other hand, even if a publicly funded resident was not a party to any
contract with the care home, he or she would, unlike privately funded
residents, have public law rights, including the right to invoke the
protection of the Convention as against the local authority. That would
enable him or her effectively to place on the local authority the onus to
take any steps open to it as against the care home to protect the resident’s
human rights.
In his Lordship’s view, the differences did not either justify or require a
different approach to the application to the care home of the Convention as
between privately and publicly funded residents in one and the same care
home.
A publicly funded resident’s Convention rights against the local authority
might even mean that he or she was in some respects already more amply
protected than a privately funded resident.
Lord Scott and Lord Neuberger delivered concurring opinions. Solicitors: Irwin
Mitchell, Sheffield; Mr Mirza Ahmad, Birmingham; Lester
Aldridge, Bournemouth; Bailey, Wright & Co, Birmingham; Treasury
Solicitor; Ms Anna Fairclough, Southwark; Ms Jean Gould,
Islington; Ms Zem Rodaway, Manchester.
Correction
In R (Kay) v Commissioner of Police of the Metropolis ( The Times June 13,
2007) Mr David Pannick, QC and Mr Jason Beer appeared for the commissioner
and Mr Michael Fordham, QC, for Mr Kay.
