YL v Birmingham City Council [2007] UKHL 27

Claimant (84) suffered from Alzheimer’s.

Defendant council had a statutory duty to make arrangements providing her with residential accommodation & it chose to fulfil that duty (as it was allowed) by contracting with 2nd Defendant company to place her in one of its care homes, which accommodated both privately funded residents & those whose fees were paid by Defendant in full or part. Claimant’s fees were paid by the council, save for a small top-up fee paid by her relatives.

2nd Defendant company sought to terminate the contract for her care & remove her from the home.

Claimant argued that the company fell within s.6(2)(b) HRA & its actions were in breach of 2, 3, 8 of ECHR.

Majority of HL rejected this claim à distinguished between the function of LA in making its statutory arrangements for those who couldn’t make arrangements for themselves & that of a private company in providing such care under contract on a commercial basis rather than by subsidy from public funds.

• Held that the actual provision of care & accommodation by the private company (as opposed to its regulation & supervision pursuant to statutory rules) was not inherently a public function / fell outside of 6(3)(b).

Thus while Claimant had retained public law rights against the LA that arranged the accommodation, she didn’t have Convention rights against the care home.

But powerful dissent by Lord Bingham & Baroness Hale. The statutory legislation allowed the LA to discharge its duty by arranging care itself or doing so via a secondary organisation: "alternative means by which the responsibility of the state may be discharged."

• Rejected the distinction made by the majority between arranging for & providing accommodation à intent of Plaintiff was that care should be provided à important that the duty WAS performed, not HOW it was performed.