YL v Birmingham CC

YL v Birmingham CC (UKHL 27) is a UK constitutional law case, concerning judicial review.

Facts
YL claimed that Southern Cross Ltd, a large private company running nursing homes in Birmingham, violated EHCR Article 8 and the human rights of an elderly resident by giving her only 28 days' notice to leave after a family disagreement. Southern Cross had been paid to care for residents in Birmingham City, with families contributing to the cost.

Judgment
Even though most residents were placed in the nursing homes by local authorities under a contract with the company, this did not make the company a public authority under HRA 1998 s 6.

Lord Scott said the following:

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.