Issue 38 August 2007 - Update on YL v Birmingham City Council-Private Care Homes and the Human Rights Act

The issue of private care homes not falling within the definition of a "public authority" under s.6(3)(b) of the Human Rights Act 1998 ("HRA") under current case law was reported on in Issue 36 of the Scottish Human Rights Journal. Since that publication, the House of Lords has agreed with the Court of Appeal in the case of YL v Birmingham City Council [2007] UKHL 27 that care homes do not perform the functions of a public authority, leaving vulnerable older persons who are victims of human rights breaches unprotected when in private care.

To recap on the facts of the case, Mrs YL was the resident of a care home run by a healthcare company arranged by her local authority under its duties under the National Assistance Act 1948. Following allegations about Y's family's conduct during visits the home wanted to move her to a different home and Mrs YL claimed a breach of her human rights under Art.8 (respect for private and family life, home and his correspondence). The issue was whether a privately owned care home providing care to a resident placed there by a public authority was performing functions of a public nature and therefore the public authority would be obliged to act compatibly with Convention rights.

The House of Lords took the view that the care home was not exercising functions of a public nature. In the case of Mrs YL, this means she cannot bring a claim that removing her from the care home was a breach of her human rights. Their Lordships (with Lord Bingham and Baroness Hale dissenting) held that the possession of special powers conferred by parliament did not in and of itself mean that the body had functions of a public nature, although the state could in some circumstances remain responsible for the conduct of a private law body to which it had state delegated powers. In each individual case the context and basis upon which a contractor acted is to be considered and, ultimately, the focus is to be on the nature of the function. The provision of care was not seen as an inherently governmental function, and in providing care the home was seen as a private, profit making company which points away from it being a body with functions of a public nature. The Lords were reluctant to reach a conclusion that those who funded their own care had less legal protection than those placed in the home by the local authority.

This is a disappointing decision in so far as it goes against the recommendations of the Joint Committee for Human Rights report on the meaning of a public authority under the HRA. The Joint Committee's report concluded that the test being applied by the courts was "highly problematic" and resulted in many instances of an organisation "standing in the shoes of the State", but without responsibility under the HRA, which left a "serious gap" in the protection the HRA was intended to offer.

In an attempt to close this legal loophole, and adapt to the reality that many public services are now privatised or contracted out, the Meaning of Public Authority Bill is currently due to pass through the House of Commons. This should clarify that where the private sector is carrying out public functions, such as contracted out care of the elderly, the HRA will apply. It is hoped that the new legislation will ensure that the protection sought for those at the receiving end of contracted out public service delivery which breaches their human rights will have a remedy where the services are those of a public nature.