YL v Birmingham City Council [2007] 3 W.L.R. 112

Facts:

  • The appellant (Y) appealed against a decision that a private care home was not performing the functions of a public authority under the Human Rights Act 1998 s.6(3)(b) when providing her with care and accommodation.
  • Y was a resident of a care home run by a healthcare company (S). Her placement had been arranged by the respondent local authority pursuant to its duties under the National Assistance Act 1948 s.21.
  • The local authority funded the placement in large part, a top-up fee being paid by Y’s family and a nursing-care element being funded by the NHS.
  • Following allegations about the conduct of Y’s family during visits, S had proposed to transfer Y to a different home. In response she had invoked s.6(3)(b) of the 1998 Act and the ECHR 1950 Art.8.

Issue:
  • Whether a care home, when providing accommodation and care to a resident, pursuant to arrangements made with a local authority under sections 21 and 26 of the National Assistance Act 1948, is performing “functions of a public nature” and is thus in that respect a “public authority”?

Ratio:
  • Appeal dismissed.
  • S was not exercising functions of a public nature within the meaning of s6(3)(b) of the 1998 Act.
  • The state could in some circumstances remain responsible for the conduct of a private law body to which it had delegated state powers, but the mere possession of special powers conferred by Parliament did not of itself mean that a body had functions of a public nature; equally, there could be bodies without special statutory powers amenable to judicial review.
  • 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.
  • In providing care and accommodation, S acted as a private, profit-making company, and that motivation pointed against treating it as a body with functions of a public nature.

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