House of Lords rules that Human Rights Act does not extend to private care homes

By a majority of 3:2 (Lord Bingham and Baroness Hale dissenting) the House of Lords has held that a private care home did not perform functions of a public nature and, consequently, was not required to comply with Convention rights under section 6(1) Human Rights Act 1998 (the Act). See, YL v Birmingham City Council and Ors [2007] UKHL 27.

Section 6 of the Act makes it unlawful for public authorities to act in breach of Convention rights. Section 6(3)(b) of the Act extends the definition of public authority to cover bodies which are not public authorities, but whose functions are of a public nature. Section 6(5) provides that a person is not a public authority by virtue only of section 6(3)(b) if the nature of the act is private.

The issue before the court was whether a private care home, in providing care and accommodation for the appellant, was exercising a public function for the purposes of section 6(3)(b) of the Act. This issue has attracted much public and academic debate and a number of parties intervened in the action including Help the Aged and Liberty.

Lord Bingham, dissenting, considered the issue to be clear and the circumstances of this case to be "precisely the case which section 6(3)(b) was intended to embrace". However the majority disagreed finding that the care home's activities did not bring it within the ambit of section 6(3)(b). It appears that the Lords were concerned that the floodgates would be opened if every contracting out of a function that a local authority could have carried out itself turns the contractor into a "hybrid public authority" for the purposes of section 6 of the Act.

The BIHR and Liberty have expressed dismay at the judgment. For a full report on this case, see Legal update, No human rights for residents of private care homes.