YL v Birmingham City Council – meaning of “public authority” [2007] UKHL 27

A care home, when providing accommodation and care to a resident pursuant to arrangements made with a local authority, is not performing “functions of a public nature” for the purposes of s6(3)(b) of the Human Rights Act 1998 (HRA) and is thus in that respect not a “public authority” obliged to act compatibly with Convention rights under s6(1) of that Act.

Comment: this is a significant decision about the scope of the HRA, the effect of which is to constrain the application of the European Convention on Human Rights (ECHR). The closure of privately-run care homes has been an issue for the courts since the Human Rights Act came into force – see, for example, R (Heather) v Leonard Cheshire Foundation – since there are more than 300,000 private care home residents placed there by a public authority. Baroness Hale and Lord Bingham dissented from the decision. As the former put it, “many services which used to be provided by agencies of the state are now provided, not by employees of central or local government, but by voluntary organisations or private enterprise under contract with central or local government. The issue before us is of great importance, both to the many hundreds of thousands of clients of those services and to the organisations and businesses which provide them”. Lord Neuberger (one of the majority), concluded that if it is thought to be desirable that residents in privately owned care homes should be given Convention rights against the proprietors, legislation should spell this out in terms.