YL v. Birmingham City Council& Ors

Factual and Procedural Background

The Appellant is an 84-year-old woman with Alzheimer’s disease who entered a nursing facility operated by Company A on 3 January 2006. Her placement, and the bulk of the fees, were arranged and funded by The Council pursuant to sections 21 and 26 of the National Assistance Act 1948. After tensions arose between the home’s management and members of the Appellant’s family, Company A issued 28 days’ notice terminating the placement. The Appellant contended that this notice infringed her Article 8 rights and sought a declaration that Company A was exercising “functions of a public nature” under section 6(3)(b) of the Human Rights Act 1998 (HRA). The High Court and Court of Appeal held that Company A was not a public authority. Leave to appeal to the House of Lords followed; several public-interest bodies and The Secretary of State intervened.

Legal Issues Presented

1. Whether a privately-owned care home, when providing accommodation and care pursuant to arrangements made with a local authority under the 1948 Act, performs “functions of a public nature” for the purposes of section 6(3)(b) HRA.
2. If the first issue were answered affirmatively, whether serving contractual notice to terminate the placement would nonetheless be a “private act” within section 6(5) HRA.

Arguments of the Parties

Appellant's Arguments

• The State has assumed ultimate responsibility for the elderly and infirm; the local authority’s statutory duty is discharged only through the home, rendering the home’s work public in nature.
• Most residents are publicly funded, and public money underwrites the service; public funding should attract public obligations.
• Detailed statutory regulation, inspection and criminal sanctions show intense State control, supporting a public character.
• Vulnerable residents risk violations of Articles 3, 5 and 8; extending Convention protection fulfils the State’s positive obligations.
• Permitting local authorities to “contract-out” would hollow out Convention rights; section 6(3)(b) was designed to prevent that.

Company A's Arguments

• Company A is a profit-making commercial entity entering purely private-law contracts; its duties arise from private, not public, law.
• No special statutory powers (e.g. detention) are conferred on the home; regulation of standards does not convert a private activity into a public function.
• Payment for services is consideration, not subsidy; the enterprise is not publicly funded.
• If every service procured by a local authority were automatically a public function, innumerable contractors—from caterers to cleaners—would become public authorities, an outcome Parliament cannot have intended.
• The notice to quit was a private contractual act, falling squarely within section 6(5).

The Council's Arguments

• The Council’s statutory duty is limited to “arranging”, not “providing”, accommodation; the 1948 Act envisages plural methods, including private provision.
• The contractual framework already obliges Company A to respect residents’ Convention rights; additional HRA liability is unnecessary.

The Secretary of State’s Submissions (Intervener)

• Urged a factor-based approach: public funding, statutory duty, intensive regulation and vulnerability collectively make the function public.
• Accepted that coercive powers, though absent here, would strengthen such a conclusion.

Table of Precedents Cited

Court's Reasoning and Analysis

Majority (Judge Scott, Judge Mance, Judge Neuberger)

• The decisive inquiry is into the nature of the function. Provision of residential care under a private contract, even if arranged and funded by The Council, is commercially motivated and lacks the governmental hallmark.
• No statutory powers of compulsion attach to Company A; regulation alone does not transform a private enterprise into a public authority.
• Public funding here is payment for services, not subsidy; many self-funding residents receive identical services, illustrating the private character of the activity.
• Extending section 6(3)(b) to all contractors would have uncontrollable consequences, potentially capturing cleaners, caterers and other ordinary vendors.
• Even if Company A were a hybrid authority, service of contractual notice would be a “private act” within section 6(5).

Minority (Judge Bingham, Judge Hale)

• The State has long accepted ultimate responsibility for ensuring the elderly receive care; Company A performs the very service The Council is obliged to secure.
• Factors identified in Aston Cantlow—public funding, statutory framework, public interest, vulnerability—converge to show a public function.
• Residents would otherwise be left without an effective domestic remedy, undermining the HRA’s purpose.
• Where local authorities could provide the service directly, contracting-out should not deprive beneficiaries of Convention protections.

Holding and Implications

APPEAL DISMISSED (3-2)

The House of Lords held that Company A is not a public authority for the purposes of section 6(3)(b) HRA when providing care and accommodation under arrangements made by The Council. Consequently, the HRA does not apply directly to the proprietor’s acts, and the contractual notice served on the Appellant was a private act.

Implications: Private care homes arranged and funded by local authorities are generally outside the direct reach of the Human Rights Act unless Parliament intervenes. Residents must rely on contractual terms, common-law duties, statutory regulations, and—where applicable—public-law remedies against the commissioning authority. The decision leaves unresolved whether legislative reform is desirable to extend Convention obligations to privately run social-care providers.