YL v Birmingham City Council [2007] UKHL 27, [2008] 1AC 95
PRIVATE CARE HOMES – HUMAN RIGHTS – LOCAL AUTHORITIES POWERS AND DUTIES – PUBLIC AUTHORITIES
Facts
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.
Issues
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.
Held
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.
Updated 20 March 2026
This article accurately describes the decision in YL v Birmingham City Council [2007] UKHL 27. However, readers should be aware that the practical effect of the majority ruling — that private care homes are not ‘public authorities’ for the purposes of s.6 of the Human Rights Act 1998 — was reversed by Parliament shortly after the decision was handed down. Section 145 of the Health and Social Care Act 2008 provides that a person who provides accommodation, together with nursing or personal care, in a care home is to be taken for the purposes of s.6(3)(b) of the Human Rights Act 1998 to be exercising a function of a public nature when doing so, where the placement is arranged by a local authority under s.21 of the National Assistance Act 1948 (now replaced by the Care Act 2014). The Care Act 2014 consolidated and replaced much of the statutory framework for adult social care in England, including s.21 of the 1948 Act, which is no longer in force. The article therefore remains useful as an account of the case itself and the judicial reasoning, but the legal position it describes — that such private care homes fall outside the Human Rights Act — no longer reflects the law in practice.
