YL v Birmingham City Council [2007] UKHL 27, [2008] 1AC 95



Y was a resident of a care home run by a healthcare company (S). Her placement had been arranged by the respondent local authority (B) in accordance with its duties under s.21 of the National Assistance Act 1948. The placement was funded in large part by B, with a top-up fee being paid by Y's family and funding for nursing care being provided by the NHS. Following allegations about the conduct of Y's family during visits, S had proposed to transfer Y to a different home. In response she had invoked s.6(3)(b) of the Human Rights Act 1998 and the Art.8 of the European Convention of Human Rights.


The Court of Appeal were required to determine whether S was exercising functions of a public nature within the meaning of s.6(3)(b) of the 1998 Act, which would require S to conduct its business in such a manner as to be compatible with Convention rights.


S was not exercising functions of a public nature within the meaning of s.6(3)(b) of the 1998 Act. The rationale of the section was to ensure that those bodies for whose acts the state was answerable before the European Court of Human Rights should incur a domestic law obligation not to act incompatibly with Convention rights. The state could, in some circumstances, remain responsible for the conduct of a private law body to which it had delegated state powers, but the mere conferral of special powers by Parliament did not, without more, mean that a body had functions of a public nature. It was necessary to look at the context in which, and the basis upon which, a contractor acted; in providing care and accommodation, S acted as a private, profit-making company, which motivation pointed against treating it as a body with functions of a public nature.