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YL v Birmingham City Council and Others

Summary

In this House of Lords decision it was held by a majority of 3 to 2 that a private care home providing care and accommodation for an elderly person under contract with a local authority was not exercising “functions of a public nature” within s 6(3)(b) of the Human Rights Act 1998.

The case concerned YL, an 84-year-old woman suffering from Alzheimer's disease, who had been placed in a home by Birmingham City Council.

Lord Mance said that s 6(3)(b) covered situations where functions of a governmental nature were discharged by non-governmental bodies. However, the modern form of the 1948 National Assistance Act made a clear distinction between a local authority with a statutory duty to arrange care and accommodation for those unable to arrange it themselves, and a private company providing services with which the local authority contracted on a commercial basis in order to fulfil its duty to arrange such care and accommodation.

The actual provision of care was not an inherently governmental function. The arrangement of the care and accommodation was.

Note: Section 145 of the Health and Social Care Act 2008 now provides that any private care home under contract with a local authority to provide care and accommodation is now considered to be exercising “functions of a public nature” within s 6(3)(b) of the Human Rights Act 1998.

Privately funded care and accommodation is not covered by section 145.

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