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YL (by her litigation friend the Official Solicitor) (FC) (Appellant) v. Birmingham City Council and others (Respondents)
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
YL (by her litigation friend the Official Solicitor) (FC) (Appellant) v. Birmingham City Council and others (Respondents)
 UKHL 27
LORD BINGHAM OF CORNHILL
1. The issue in this appeal is whether a care home (such as that run by Southern Cross Healthcare Ltd), when providing accommodation and care to a resident (such as Mrs YL, the appellant), pursuant to arrangements made with a local authority (such as Birmingham City Council) under sections 21 and 26 of the National Assistance Act 1948, is performing "functions of a public nature" for the purposes of section 6(3)(b) of the Human Rights Act 1998 and is thus in that respect a "public authority" obliged to act compatibly with Convention rights under section 6(1) of that Act.
2. For reasons more fully given by my noble and learned friend Baroness Hale of Richmond, with whose opinion I wholly agree, I would answer that question in the affirmative. Despite the contrary opinions of my noble and learned friends, and of the Court of Appeal in R (Heather) v Leonard Cheshire Foundation  EWCA Civ 366,  2 All ER 936, I venture to think that the answer to the question is clear. For that reason, and because the issue is an important one, I give my reasons for reaching the conclusion I do. In doing so, I shall take as read, and will not repeat, Baroness Hale's survey of the facts, the legislation, the history and the authorities.
3. Public authorities in the United Kingdom must not act incompatibly with a Convention right of anyone in the country. That is the effect of sections 6(1) and 1(1) of the Human Rights Act 1998. The same prohibition applies to any body which is not a public authority but certain of whose functions are of a public nature, save in respect of a particular act if the nature of that act is private. That is the effect of section 6(1) of the Act, read with sections 6(3)(b) and 6(5). Thus the question to be resolved is whether Southern Cross, as the owners and managers of the registered care home in which Mrs YL is resident, is in material respects exercising functions of a public nature not involving acts of a private nature.
4. Section 6 is a provision in a domestic statute, to be construed as such. Its meaning is not to be found in the Convention. The provision is found in a measure intended to give effective domestic protection to Convention rights as defined in and scheduled to the Act. It is accordingly appropriate to give a generously wide scope to the expression "public function" in section 6(3)(b), as Lord Nicholls of Birkenhead observed in Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank  UKHL 37,  1 AC 546, para 11.
5. As Lord Nicholls also observed in the same case, at para 12, there is no single test of universal application to determine whether a function is of a public nature. A number of factors may be relevant, but none is likely to be determinative on its own and the weight of different factors will vary from case to case. Tempting as it is to try and formulate a general test applicable to all cases which may arise, I think there are serious dangers in doing so. The draftsman was wise to express himself as he did, and leave it to the courts to decide on the facts of particular cases where the dividing line should be drawn. There are, however, some factors which are likely to be relevant, as Lord Nicholls recognised in paragraph 12 of his opinion in Aston Cantlow.
6. It will be relevant first of all to examine with some care the nature of the function in question. It is the nature of the function - public or private? - which is decisive under the section.
7. It is also relevant to consider the role and responsibility of the state in relation to the subject matter in question. In some fields the involvement of the state is long-standing and governmental in a strict sense: one might instance defence or the running of prisons. In other fields, such as sport or the arts, the involvement of the state is more recent and more remote. It is relevant to consider the nature and extent of the public interest in the function in question.
8. It will be relevant to consider the nature and extent of any statutory power or duty in relation to the function in question. This will throw light on the nature and extent of the state's concern and of the responsibility (if any) undertaken. Conversely, the absence of any statutory intervention will tend to indicate parliamentary recognition that the function in question is private and so an inappropriate subject for public regulation.
9. Also relevant will be the extent to which the state, directly or indirectly, regulates, supervises and inspects the performance of the function in question, and imposes criminal penalties on those who fall below publicly promulgated standards in performing it. This is an indicator of the state's concern that the function should be performed to an acceptable standard. It also indicates the state's recognition of the importance of the function, and of the harm which may be done if the function is improperly performed.
10. It will be relevant to consider whether the function in question is one for which, whether directly or indirectly, and whether as a matter of course or as a last resort, the state is by one means or another willing to pay. The greater the state's involvement in making payment for the function in question, the greater (other things being equal) is its assumption of responsibility.
11. It will be relevant to consider the extent of the risk, if any, that improper performance of the function might violate an individual's Convention right. In some fields, such as sport, the risk of infringing a Convention right might appear to be small; in relation to certain of the arts, the potential impact of article 10, for instance, could obviously be greater.
12. Certain factors are in my opinion likely to be wholly or largely irrelevant to the decision whether a function is of a public nature. Thus it will not ordinarily matter whether the body in question is amenable to judicial review. Section 6(3)(b) extends the definition of public authority to cover bodies which are not public authorities but certain of whose functions are of a public nature, and it is therefore likely to include bodies which are not amenable to judicial review. In considering whether private body A is carrying out a function of a public nature, it is not likely to be relevant that public body B is potentially liable for breach of an individual's Convention right. The effect of the Act may be that both A and B are liable. It will in my opinion be irrelevant whether an act complained of as a breach of a Convention right is likely to be criminal or tortious: the most gross breaches of the Convention - the improper taking of life, inhumane treatment, unjustified deprivation of liberty - will ordinarily be both criminal and tortious.
13. It is necessary to stress that no summary of factors likely to be relevant or irrelevant can be comprehensive or exhaustive. The present question may arise in widely varying contexts and on widely varying facts. Other factors may then call for consideration.
14. The nature of the function with which this case is concerned is not in doubt. It is not the mere provision of residential accommodation but the provision of residential accommodation plus care and attention for those who, by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them.
15. Historically, the attitude of the state towards the poor, the elderly and the incapable has not been uniformly benign. But for the past 60 years or so it has been recognised as the ultimate responsibility of the state to ensure that those described in the last paragraph are accommodated and looked after through the agency of the state and at its expense if no other source of accommodation and care and no other source of funding is available. This is not a point which admits of much elaboration. That the British state has accepted a social welfare responsibility in this regard in the last resort can hardly be a matter of debate.
16. Sections 21 and 26 of the National Assistance Act 1948 confer statutory powers and impose a statutory duty. The duty is imposed on the relevant local authority. It may be discharged by arranging for the provision of residential care in a home run by itself, or by another local authority, or by a voluntary organisation (such as the Leonard Cheshire Foundation) or by a private provider such as Southern Cross. These are alternative means by which the responsibility of the state may be discharged. Counsel for the Birmingham City Council laid great emphasis on the fact that its duty under the Act is to arrange and not to provide. This is correct, but not in my view significant. The intention of Parliament is that residential care should be provided, but the means of doing so is treated as, in itself, unimportant. By one means or another the function of providing residential care is one which must be performed. For this reason also the detailed contractual arrangements between Birmingham, Southern Cross and Mrs YL and her daughter are a matter of little or no moment.
17. The provision of residential care is the subject of very detailed control by statute, regulation and official guidance, and criminal sanctions apply to many breaches of the prescribed standards. Little is left to chance, or the judgment of the particular provider.
18. Some of those for whom residential care is provided pursuant to sections 21 and 26 of the 1948 Act pay the full cost of the service they receive. A majority are subsidised to a greater or lesser extent out of public funds. No difference of legal principle depends on the group to which a particular resident, if accommodated and cared for pursuant to sections 21 and 26, belongs. The significant thing is that the state is willing to apply public funds to support those falling within sections 21 and 26 if, and to the extent that, they cannot pay for themselves, rather than leave them unaccommodated and uncared for. Those who need residential care but are able (through themselves or their families or other agents) to arrange it and pay for it fall into a different category, altogether outside sections 21 and 26. It is indicative of a function being public that the public are, if need be, bound to pay for it to be performed.
19. Those who qualify for residential care under sections 21 and 26 are, beyond argument, a very vulnerable section of the community. With children, mental patients and prisoners they are among the most vulnerable. Despite the intensive regulation to which care homes are subject, it is not unknown that senile and helpless residents of such homes are subjected to treatment which may threaten their survival, may amount to inhumane treatment, may deprive them unjustifiably of their liberty and may seriously and unnecessarily infringe their personal autonomy and family relationships. These risks would have been well understood by Parliament when it passed the 1998 Act. If, as may be confidently asserted, Parliament intended the Act to offer substantial protection of the important values expressed in the articles of the Convention given domestic effect by the 1998 Act, it can scarcely have supposed that residents of privately run care homes, placed in such homes pursuant to sections 21 and 26 of the 1948 Act, would be unprotected.
20. When the 1998 Act was passed, it was very well known that a number of functions formerly carried out by public authorities were now carried out by private bodies. Section 6(3)(b) of the 1998 Act was clearly drafted with this well-known fact in mind. The performance by private body A by arrangement with public body B, and perhaps at the expense of B, of what would undoubtedly be a public function if carried out by B is, in my opinion, precisely the case which section 6(3)(b) was intended to embrace. It is, in my opinion, this case.
LORD SCOTT OF FOSCOTE
21. The opinions on this appeal prepared by my noble and learned friends Baroness Hale of Richmond, Lord Mance and Lord Neuberger of Abbotsbury, which I have had the advantage of reading in draft, have described the facts that have given rise to this appeal and have lucidly explained the fairly complex statutory background applicable to the management of privately owned care homes and to the use of them made by local authorities pursuant to their statutory duties and responsibilities under the National Assistance Act 1948. I gratefully adopt, and hope not to repeat unnecessarily, my noble and learned friends' exposition.
22. The issue which your Lordships must decide, as expressed in paragraph 18 of the order of Ryder J of 12 September 2006, is whether the second Respondent, Southern Cross Healthcare Ltd ("Southern Cross"), "in providing care and accommodation for YL [the appellant] is exercising a public function for the purposes of section 6(3)(b) of the Human Rights Act 1998". Bennett J held, on 5 October 2006, that it was not. The Court of Appeal, on 30 January 2007, agreed:  2 WLR 1097. But these decisions are challenged before the House by YL, supported by the Secretary of State for Constitutional Affairs and by Justice, Liberty, the British Institute of Human Rights, Help the Aged and Age Concern England, each an independent body. It is convenient to refer, briefly, to the statutory and factual background to the formulation of this preliminary issue.
23. The Human Rights Act 1998 incorporated into our domestic law the rights referred to in a number of specified articles of the European Convention on Human Rights. Section 6(1) of the Act said that "it [was] unlawful for a public authority to act in a way which [was] incompatible with " any of these rights. The section did not contain any comprehensive definition of "public authority" but subsection (3)(b) said that a "public authority" included "any person certain of whose functions are functions of a public nature". However subsection (5) said that:
The effect of all this is that an act (or an omission) of a private person or company that is incompatible with a Convention right is not unlawful under the 1998 Act (it may, of course, be unlawful under ordinary domestic law) unless the person or company has at least some "functions of a public nature"; but even if that condition is satisfied the private person or company will not have any liability under the 1998 Act if the nature of the act complained of was private.
24. YL became a resident in one of Southern Cross' care homes on 3 January 2006. She became a resident under the terms of an agreement with Southern Cross signed on 20 February 2006. The agreement was signed on YL's behalf by her daughter. By a letter of 21 June 2006 Southern Cross gave the daughter 28 days' notice to terminate YL's right to remain in the care home. The agreement allowed Southern Cross to give four weeks' notice of termination but a contractual undertaking had been given by Southern Cross to Birmingham City Council ("the council") that notice of termination would be given "only for a good reason". There are unresolved issues as to whether Southern Cross did have "a good reason". YL contends that the notice given by Southern Cross was incompatible with her right under article 8 of the Convention to respect for her home and was unlawful under section 6(1) of the 1998 Act. Hence the preliminary issue directed by Ryder J to be tried.
25. The reason why I have referred to this statutory and factual background is that there are, in my opinion, two issues for your Lordships to consider; first, whether, for subsection (3)(b) purposes Southern Cross has functions of a "public nature", and, second, whether Southern Cross' act in serving notice to terminate its agreement with YL was an act the nature of which, for subsection (5) purposes, was "private".
26. My Lords, on both the issues to which I have referred I have reached the same conclusion for much the same reasons as my noble and learned friends Lord Mance and Lord Neuberger. To express in summary terms my reason for so concluding, Southern Cross is a company carrying on a socially useful business for profit. It is neither a charity nor a philanthropist. It enters into private law contracts with the residents in its care homes and with the local authorities with whom it does business. It receives no public funding, enjoys no special statutory powers, and is at liberty to accept or reject residents as it chooses (subject, of course, to anti-discrimination legislation which affects everyone who offers a service to the public) and to charge whatever fees in its commercial judgment it thinks suitable. It is operating in a commercial market with commercial competitors.
27. A number of the features which have been relied on by YL and the intervenors seems to me to carry little weight. It is said, correctly, that most of the residents in the Southern Cross care homes, including YL, are placed there by local authorities pursuant to their statutory duty under section 21 of the 1948 Act and that their fees are, either wholly or partly, paid by the local authorities or, where special nursing is required, by health authorities. But the fees charged by Southern Cross and paid by local or health authorities are charged and paid for a service. There is no element whatever of subsidy from public funds. It is a misuse of language and misleading to describe Southern Cross as publicly funded. If an outside private contractor is engaged on ordinary commercial terms to provide the cleaning services, or the catering and cooking services, or any other essential services at a local authority owned care home, it seems to me absurd to suggest that the private contractor, in earning its commercial fee for its business services, is publicly funded or is carrying on a function of a public nature. It is simply carrying on its private business with a customer who happens to be a public authority. The owner of a private care home taking local authority funded residents is in no different position. It is simply providing a service or services for which it charges a commercial fee.
28. The position might be different if the managers of privately owned care homes enjoyed special statutory powers over residents entitling them to restrain them or to discipline them in some way or to confine them to their rooms or to the care home premises. The managers do, of course, have private law duties of care to all their residents and these duties of care may sometimes require, for the protection of a resident, or of fellow residents, from harm, the exercise of a degree of control over the resident that might in other circumstances be tortious. When the Mental Capacity Act 2005 comes into force acts of that sort, in relation to persons who lack mental capacity, may attract a statutory defence to any civil action (see sections 5 and 6 of the Act). This, however, really does no more than place common law defences of self-defence or necessity on a statutory basis and does not, in my opinion, advance any argument about the "public nature" of the function being carried on by care homes.
29. An argument heavily relied on in support of the appeal has been a comparison of the management by a local authority care home with the management of a privately owned care home. There is no relevant difference, it is pointed out, between the activities of a local authority in managing its own care homes and those of the managers of privately owned care homes. The function of the local authority is unquestionably a function of a public nature, so how, at least in relation to residents the charges for whom are being paid by the local authority, can the nature of the function of the managers of a privately owned care home be held to be different? So the argument goes. There are, in my opinion, very clear and fundamental differences. The local authority's activities are carried out pursuant to statutory duties and responsibilities imposed by public law. The costs of doing so are met by public funds, subject to the possibility of a means tested recovery from the resident. In the case of a privately owned care home the manager's duties to its residents are, whether contractual or tortious, duties governed by private law. In relation to those residents who are publicly funded, the local and health authorities become liable to pay charges agreed under private law contracts and for the recovery of which the care home has private law remedies. The recovery by the local authority of a means tested contribution from the resident is a matter of public law but is no concern of the care home.
30. As it seems to me, the argument based on the alleged similarity of the nature of the function carried on by a local authority in running its own care home and that of a private person running a privately owned care home proves too much. If every contracting out by a local authority of a function that the local authority could, in exercise of a statutory power or the discharge of a statutory duty, have carried out itself, turns the contractor into a hybrid public authority for section 6(3)(b) purposes, where does this end? Is a contractor engaged by a local authority to provide lifeguard personnel at the municipal swimming pool a section 6(3)(b) public authority? If so, would a local authority employee engaged by the local authority as a lifeguard at the pool become a public authority? Could it be argued that his or her function was a function of a public nature? If Southern Cross is a section 6(3)(b) public authority, why does it not follow that each manager of each Southern Cross care home, and even each nurse or care worker at each care home would, by reason of his or her function at the care home, be a section 6(3)(b) public authority?
31. These examples illustrate, I think, that it cannot be enough simply to compare the nature of the activities being carried out at privately owned care homes with those carried out at local authority owned care homes. It is necessary to look also at the reason why the person in question, whether an individual or corporate, is carrying out those activities. A local authority is doing so pursuant to public law obligations. A private person, including local authority employees, is doing so pursuant to private law contractual obligations. The nature of the function of privately owned care homes, such as those owned by Southern Cross, no different for section 6 purposes from that of ordinary privately owned schools or privately owned hospitals (nb some schools and hospitals may have special statutory powers over some pupils and patients eg reformatories in the olden days and mental hospitals these days), seems to me essentially different from that of local authority care homes.