Facts

This case is about the public law effects of ‘contracting out’ public services (see [132]), and is concerned with whether a privately owned care home (Southern Cross Healthcare Ltd) could be brought within the ambit of s. 6(3)(b) of the Human Rights Act 1998 (HRA) (see Bingham, at [3], Hale, at [37], Mance, at [81], Neuberger, at [129–130] for summaries) if it received public funding to provide a bed to a resident (YL) in part from a local authority (Birmingham City Council). That is, for the purposes of the service provided to YL, could Southern Cross be classed as a public body within the meaning of the 1998 Act? The facts of this particular case, including the structure of the funding arrangements, are outlined in Lady Hale’s judgment (see [38–48]; see also Scott, at [24], Mance, at [76–77]). But in short, an action was brought following an attempt by Southern Cross to evict YL from her placement, YL’s relatives asserted this would be a breach of her Art. 8 rights under the European Convention on Human Rights (ECHR).

Decision

For the majority, the case turned on whether the most significant factor was ‘the context … and basis on which a contractor acts’ or whether it is more ‘appropriate … to look at what a contractor “does”’ (at [102]). Lord Mance argued that there was a distinction to be drawn between public bodies which, inter alia, have ‘an obligation to act only in the public interest’, and private ‘profit-earning enterprises’ possessed of ‘sectional or personally motivated interests’ (at [105]; see also Scott, at [26], [29–31]). The different contexts in which the two types of body operate provided a route to distinguishing them, and thus to determining whether Southern Cross fell within s. 6(3)(b) HRA. The local authority were required by a duty under s. 21 of the National Assistance Act 1948 to provide a care home to YL (Mance, at [107–109]; also Hale [49–53]). Such obligations were ‘inherently governmental’ in character (at [115], also at [119]; Neuberger, at [147], [164]). The context of the care home was different; it was ‘carrying on a socially useful business for profit’, contracting with a public body which had a duty to arrange care (Scott, at [26]).

The logic of this conclusion was underpinned by two observations (on both, cf. Hale, at [68], [72]). First, those self-funding places in private care homes could not argue that the care home was acting in a public capacity in relation to them (Mance, at [115]), indicating that the nature of the operation itself was not public per se. Second, and relatedly, it would be illogical if residents who were wholly or partly publicly funded could expect a higher standard of legal protection and care quality than self-funding residents housed under essentially the same contractual terms (at [117], and see [118–119], [123]; also Neuberger, at [153], [169], [171]). Furthermore, and notwithstanding the public duty in statute to arrange care, all aspects of the care provided were dictated by a private law contractual arrangement between the care home and another party (resident, relative, local authority etc., or a combination), (Scott, at [26]).

The minority (Lord Bingham, Lady Hale) took a different view arguing it was ‘artificial and legalistic to draw [such] a distinction’ (Hale, at [66]), since the state intended that care would be provided ‘by one means or another’ (Bingham, at [16]), with intensive regulation meaning that ‘little is left to chance’ (at [17]); there was an ‘[assumption of public] responsibility’ (Hale, at [68]; cf. Neuberger, at [163]). The fact that, where the need arose for the provision of care, the public were ‘bound to pay for it to be performed’ mattered (at [18]; see also Hale, at [62]). Moreover, knowing that those in care homes, and similar, constituted ‘a very vulnerable section of the community’ (at [19], see also Hale [67], [69–71]), Lord Bingham felt it ‘may be confidently asserted’ that Parliament intended privately run care homes and like settings to be covered by s. 6(3)(b) (at [19]; see also Hale, at [55], [65]), not least because contracting out of public provision was already commonplace in 1998 (at [20]), and has become more extensive since (Hale, at [36]).

Their Lordships also indicated that it was necessary to distinguish the identification of public bodies in judicial review from that under s. 6 HRA (Bingham, at [12]; Mance, at [87]; Neuberger, at [156]).

Comment

As is evident in the judgments concerning cases discussed elsewhere in this collection (see Poplar Housing [2001] EWCA Civ 595 and Aston Cantlow [2003] UKHL 37), the distinction between public and private bodies/functions is contentious. After YL, the Joint Committee on Human Rights remarked that it found the majority judgment in the case to be ‘a very disappointing decision’, preferring to align themselves with the minority (2006–07, HL 156/HC 378, 48), which appeared to fit with the pre-HRA position too (see Rights Brought Home (Cm 3782), at para. 2.2).

Elsewhere, however, we find some support for the principles underpinning the majority. Oliver [2004] PL 329 writes that, though a local authority might owe a ‘statutory duty to provide or secure the provision of home help … it surely does not follow that [the cleaner’s] acts or activity in cleaning the flat are of a public nature’ (at 335, emphases original, see also 338). One suspects that the minority would conclude that such a construction of the distinction between what Oliver calls ‘the concepts of duty, power, function, activity and act’ (at 335) hollows out the substance of the duty significantly by disconnecting the duty from the substance of the activity.

Wider Questions

Following on from the above, would it be acceptable if the provider of cleaning services allowed the recipient of the service to live in squalor? What recourse would a recipient of such services have following the judgment in YL? As Palmer (2008) 16 Med LR 141, 153 notes, perhaps:

the majority in YL … allowed pragmatic concerns about the consequences of a more generous interpretation of s.6(3)(b) … to undermine one of the central purposes of the HRA … to impose a new system of accountability on the delivery of public services through public law mechanisms.

Parliament appears to agree with Palmer since the specific position in YL has been reversed in statute: s. 73 of the Care Act 2014 (see Gledhill (2015) 20(2) JR 73, at [6]), though the wider conceptualization of hybrid bodies under s. 6(3)(b) HRA remains (see e.g. Fearn [2019] EWHC 246 (Ch)).

Which view of the HRA do you think is appropriate and why: that the HRA is intended to regulate the duty to provide public services in compliance with the Act, or that it should cover the delivery of the service too? What are the implications for public bodies arranging, private bodies delivering, and the people making use of services of your answer?