I haven’t had a chance to look at the judgment in full (YL (by her litigation friend the Official Solicitor) (FC) (Appellant) v. Birmingham City Council and others [2007] UKHL 27), but the House of Lords has today decided 3 to 2 (Lord Bingham and Lady Hale dissenting), that a private care home place obtained and funded by a Local Authority pursuant to the National Assistance Act does not fall under the Human Rights Act, as the care Home is not carrying out a public function.
This will bear a close look as it might well have wider ramifications on private bodies carrying out public functions. Possibly more to follow…
[Edit 21 June. Head of Legal has an interesting take on the judgments, suggesting exactly this.]
In substance, no change from what the position has always been when the House of Lords has considered this. That said, arguments on both sides are clearer and more coherent than ever. Expect the minority’s ideas to pop up in another claim or in legislation.
I’m not sure that it is more of the same. My concern is that this may have an impact on other areas where private bodies have been taken as performing a public function, e.g. Judicial Review of Housing Associations in performing some functions. I need to have a look at the judgments – but it is going to have to wait…
Hmm how may YL apply if it was a charity that was given statutory powers to take children into care?
Completely different situation, surely. If the charity is operating under statutory powers then it is either arguably a de facto public body, or is acting as the agent of a public body, carrying out a public function. Taking children into care is going to be a public function pretty indisputably.
Thanks NL.
I realised this when I had a moot topic on it, I argued against it anyway.
This seems like an interesting case and one that we’ve not heard the last of. What do you think would be the case if a local NHS trust delegated to a private hospital for emergency surgery to one of its patients that would have to wait for a place on the NHS? Outside its ambit or close enough to be subsumed?
At that point, the private hospital will be performing a public function since it is acting with the direct authority delegated from a public body. It ought to be amenable to JR