YL v Birmingham City Council & Ors

A transfer of care-home provision from public to private control does not itself diminish residents’ Convention rights or breach article 8. The state need not maintain a fixed form or level of welfare provision, and the local authority retains its statutory and Convention responsibilities.

Whether a private provider performs a public function under the Human Rights Act 1998 is fact-sensitive. There is no universal test. Public funding, statutory powers, substitution for government, public-service character and integration may be relevant. The Court of Appeal was bound by R (Heather) v Leonard Cheshire Foundation on materially similar facts. The care home was not a public authority under section 6(3)(b). Both appeals were dismissed.

Two appeals were heard together. In Johnson, residents challenged Havering’s proposed transfer of care homes maintained under section 21 of the National Assistance Act 1948 to private control, alleging loss of Convention protection. In YL, a resident placed by Birmingham in a private care home challenged the proposed termination of her care and removal from the home.

Forbes J rejected the Johnson claim. Bennett J rejected the YL claim in the Family Division: [2006] EWHC 2681 (Fam). The central issue was whether a private care home providing care and accommodation under local-authority arrangements exercised functions of a public nature under section 6(3)(b) of the Human Rights Act 1998. The appeals also raised whether the transfer itself engaged article 8.

The appeals in Johnson and YL were dismissed.

1. As to Johnson, transferring residents from local-authority to private care-home provision did not itself breach article 8. Article 3 was an inadequate example because extreme mistreatment would engage criminal law and the local authority’s responsibilities under sections 21(2) and 26(5) of the National Assistance Act 1948. Article 8 did not impose an obligation to maintain a particular type or level of welfare provision. The local authority remained responsible for its statutory duties and Convention obligations, and a change in the residents’ remedies did not itself constitute a breach.
2. The question whether a function is public under section 6(3)(b) of the Human Rights Act 1998 is fact-sensitive. There is no single universal test. Relevant matters include public funding, statutory powers, taking the place of central or local government, provision of a public service, and the closeness of the relationship with a public body. The approach in Poplar Housing and Regeneration Community Association v Donoghue and R (Heather) v Leonard Cheshire Foundation was not inconsistent with Aston Cantlow PCC v Wallbank.
3. Under the rule in Young v Bristol Aeroplane Co, this court could depart from its own previous decisions only where a later House of Lords decision expressly or impliedly overruled them. General observations in Aston Cantlow, without a clear inconsistency on the same issue, did not satisfy that stringent test. R (Heather) v Leonard Cheshire Foundation therefore remained binding.
4. Applying that authority, the private care home accommodating Mrs YL under Birmingham’s arrangements was not exercising functions of a public nature under section 6(3)(b). The preliminary point was answered against Mrs YL.
5. Obiter, Buxton LJ considered that substantial public funding, integration with local-authority duties and the care character of the service might indicate a public function. He also suggested that section 6 should be applied instrumentally and article-specifically, rather than treating a hybrid body as subject to the Convention for every purpose. Dyson LJ and the Master of the Rolls declined to express an obiter view on the point.

In YL, the appellant was liable for Birmingham’s and Southern Cross Healthcare’s costs, jointly and severally with the Secretary of State, subject to assessment preventing double recovery. Permission to appeal was granted on the public-authority issue.

• Court of Appeal (Civil Division): [2007] EWCA Civ 27 ; the conjoined appeals were dismissed.
• High Court of Justice, Family Division: Bennett J rejected the YL claim, [2006] EWHC 2681 (Fam). Forbes J rejected the Johnson claim.