In YL v Birmingham City Council and others1 the House of Lords considered the applicability of the Human Rights Act 1998 to the activities of a private care home. The decision attracted widespread press attention. Whilst the outcome of the case was relatively unremarkable, its implications may be of wider interest.
The claimant was an 83 year old woman with Alzheimer’s disease. Her condition had reached a point at which her husband could no longer care for her. Her local authority, Birmingham City Council, assessed her residential accommodation needs, pursuant to their obligations under section 21 National Assistance Act 1948 (the 1948 Act). As a result, in January 2006, the Council arranged her placement in a privately owned residential care home.
Whilst staff caring for the claimant had no difficulties, relations with the claimant’s family were strained. By June 2006, relations had broken down to such an extent that the care home owners and managers, Southern Cross Healthcare, gave the claimant notice to quit.
This prompted a flurry of legal activity by the claimant’s representatives, in order to prevent her eviction.
A preliminary issue was whether the care home was subject to the provisions of the Human Rights Act 1998 (the 1998 Act), implementing the European Convention on Human Rights. S6(1) of the 1998 Act makes it unlawful for a public authority to act incompatibly with Convention rights. “Public Authority” includes a private body performing “functions of a public nature” (s6(3)(b)). The issue in question was whether Southern Cross, as a private enterprise under contract with local government, was performing a function “of a public nature.”
First instance and Court of Appeal
Bennett J, and subsequently the Court of Appeal, agreed unanimously that such functions were not public in nature. They relied upon the decision of R (on the application of Heather and Ors) v Leonard Cheshire Foundation and another.2 The defendant in that case was a thriving voluntary sector provider of care and support services to the disabled. Although the defendant was carrying out activities on behalf of the local authority, the nature of the activities themselves was regarded as private.
Leave was given to appeal to the House of Lords.
House of Lords
By a 3:2 majority, the House of Lords upheld the earlier decisions.
Lords Scott, Mance and Neuberger considered closely the effect of s6(3)(b) in considering the nature of Southern Cross’s functions.
Lord Scott placed great emphasis on Southern Cross’s status as a private contractor. It was not enough merely to compare the nature of activities in the privately owned home with those carried out at a local authority owned home; it was necessary also to look at the reason behind those activities, in this case private gain.
Lord Mance noted that the Council’s statutory obligation to cater for accommodation needs was clearly a public function. However, there was no basis on which to regard Southern Cross as a delegate to whom functions of a public nature had been devolved. He drew a distinction between the actual provision of care and accommodation, and its arrangement.
Agreeing with both their Lordships, Lord Neuberger emphasised that the imprecision of the words “functions of public nature” could lead to circularity, indicating that to try and find meaning one would search for a policy as an aid to interpretation. He went on to say: “the identification of the policy is almost inevitably governed, at least to some extent, by one’s notions of what the policy should be, and the policy so identified is then used to justify one’s conclusion.”
In impassioned judgments, Baroness Hale and Lord Bingham expressed the opinion that provision of accommodation and health and social care for elderly residents is a function of a public nature because this is performed pursuant to a statutory arrangement (s21 of the 1948 Act), effectively at public expense, and, in the wider context, for the greater public interest.
Baroness Hale also referred to the Parliamentary debate in advance of enactment of the Human Rights Bill, in which Jack Straw MP was quoted3. “The Bill had to have a definition of a Public Authority that went at least as wide and took account of the fact that, over the past 20 years, an increasingly large number of private bodies, such as companies or charities, have come to exercise public functions that were previously exercised by public authorities.”
In the absence, however, of conclusive statutory evidence to support the alleged Parliamentary intention, the majority Lords were not persuaded.
Despite the outcry in some areas of the press, this decision in fact made little difference to the claimant. Her placement at Southern Cross’s premises had been secured by agreement by the time this case came to court.
As to the wider interest of the public at large, the activities of care homes, whether public or private, are in fact tightly regulated by way of a legal framework providing remedies to those in care homes whose rights under the Convention might be breached.4
In addition, contracts between residents and care providers can contain protection - ironically, the agreement between the claimant and the care home in this case expressly provided that her Convention rights would be respected, potentially allowing a remedy for breach of contract. The 1998 Act will allow the possibility of damages only to the extent that domestic law does not afford “just satisfaction”.5
Arguably, local authorities, who inescapably are bound by the terms of the Convention, will be reluctant to contract with care providers not prepared to make a contractual concession of this nature.
Nevertheless, although in the area of social care this decision may make less of an impact than initially thought, it does raise a fundamental question as to the application of the Human Rights Act 1998 in other areas.
For example, in relation to hospital deaths, it is increasingly common for a coroner to invoke Article 2 of the Convention (protection of right to life) for a State investigation into the systems of a public hospital. Where will the YL decision leave private hospitals, even if providing services by contractual arrangement with a Primary Care Trust?
Lords Mance and Neuberger both left open the question of whether a private hospital in providing health services was performing a public function. Anecdotal reports suggest that at least one coroner has refused to invoke an Article 2 inquiry in such circumstances. Guidance is awaited from the Coroners’ Society (or from the courts if such a decision is challenged).
Both their Lordships also left open the position in relation to private schools contracting with public authorities.
Whilst in one narrow respect, the House of Lords’ decision has clarified the position of private care homes, in another it has raised a fundamental question. As Lord Neuberger commented, “that is a subject on which there are no doubt opposing views, and I am in no position to express an opinion. However, if the legislature considers such a course appropriate, then it would be right to spell it out in terms, and, in the process, to make it clear whether the rights should be enjoyed by all residents of [private care homes], or only certain classes.”
Parliament’s intentions in this respect are awaited with interest.