YL v Birmingham City Council [2007] UKHL 27

• Claimant (84) suffered from Alzheimer’s.

• Defendant council had a statutory duty to make arrangements providing her with residential accommodation & it chose to fulfil that duty (as it was allowed) by contracting with 2nd Defendant company to place her in one of its care homes, which accommodated both privately funded residents & those whose fees were paid by Defendant in full or part. Claimant’s fees were paid by the council, save for a small top-up fee paid by her relatives.

• 2nd Defendant company sought to terminate the contract for her care & remove her from the home.

• Claimant argued that the company fell within s.6(2)(b) HRA & its actions were in breach of 2, 3, 8 of ECHR.

• Majority of HL rejected this claim à distinguished between the function of LA in making its statutory arrangements for those who couldn’t make arrangements for themselves & that of a private company in providing such care under contract on a commercial basis rather than by subsidy from public funds.

  • Held that the actual provision of care & accommodation by the private company (as opposed to its regulation & supervision pursuant to statutory rules) was not inherently a public function / fell outside of 6(3)(b).

• Thus while Claimant had retained public law rights against the LA that arranged the accommodation, she didn’t have Convention rights against the care home.

• But powerful dissent by Lord Bingham & Baroness Hale. The statutory legislation allowed the LA to discharge its duty by arranging care itself or doing so via a secondary organisation: "alternative means by which the responsibility of the state may be discharged."

  • Rejected the distinction made by the majority between arranging for & providing accommodation à intent of Plaintiff was that care should be provided à important that the duty WAS performed, not HOW it was performed.

Bingham

When the 1998 Act was passed, it was very well known that a number of functions formerly carried out by private bodies. S.6(3)(b was clearly drafted with this well-known fact in mind.

• He also says that those in care are the most vulnerable and therefore have a greater need for protection.

• Clearly the provision of care is a public function.

Lord Neberger

• Core public authorities are bound by s.6 in relation to:

Every one of its acts whatever the nature of the act concerned.