The House of Lords has recently saved long-dead music hall star George Formby from executing a three point turn in his grave.

Formby's window cleaner might possibly have found himself operating as a public body if a recent decision of the House of Lords had taken a different turn.

The case, ‘YL v Birmingham City Council and others' was an important decision since it finally settled the long-standing legal issue as to whether a private care home in which residents have been placed by a local is a public authority for the purposes of the Human Rights Act 1998 in relation to those residents.

If so, the home would have a specific duty under section 6 of the 1998 Act not to act incompatibly with a right under the European Convention on Human Rights. This could for instance give rise to a duty not to close such accommodation without regard to the right to a home of publicly funded residents. However, the House of Lords found private care homes were not public authorities in these circumstances.

According to section 6(3)(b) of the 1998 Act a public authority includes any person certain whose functions are those of a public nature.
However, section 6(5) suggests that, in relation to a particular act, a person is not thereby a public authority if the nature of the act is private. So, what did the Lords make of a ‘privately owned, profit-earning care home providing care and accommodation for a publicly funded resident'? Were these ‘functions of a public nature'?

As with everything in life a group of individuals can look at the same thing and see something entirely different in each case. So it was with the Lords. Baroness Hale took the view this was a function performed for the claimant ‘pursuant to statutory arrangements, at public expense and in the public interest' and she had no doubt Parliament intended this to be a public function under section 6(3)(b) of the 1998 Act. Lord Bingham agreed. However, the majority of the ‘Law Lords' looked at the same law and saw things differently.

Lord Mance did not regard ‘the actual provision, as opposed to the arrangement, of care and accommodation for those unable to arrange it themselves as an inherently governmental function'.

A local authority's duty under section 21 of the 1948 Act (to provide residential accommodation for adults 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) was in his view a safety net. Therefore, if the person has resources above the relevant financial threshold and can make personal accommodation arrangements, the local authority will not be further involved.

He considered the authority's involvement is aimed at making arrangements – including funding – which put those in need in effectively the same position as ‘self-funders'.

It was determined that: ‘Once such arrangements are made, the actual provision of care and accommodation is a different matter, which, as the modern legislation recognises, does not need actually to be undertaken by the local authority and can take place in the private sector, as it does for those who or whose relatives are able to make arrangements including funding for themselves'.

For, Lord Mance pointed out, the ‘legislation distinguishes clearly between a local authority with a statutory duty to arrange care and accommodation and a private company providing services with which the local authority contracts on a commercial basis in order to fulfil the local authority's duty to arrange care and accommodation.

In the circumstances Lord Mance took the view that the care home was not – and is not – exercising public functions under section 6(3)(b) of the 1998 Act. 

But what of George Formby's window cleaner in all of this? If he were to ‘earn an honest bob' by being contracted by the authority to clean its council house windows, could this person have been a public authority? Lord Mance considered the formulation submitted by counsel for the claimant could have had this effect.

This was that a contractor agreeing with a governmental authority to supply goods or services, the supply of which fulfils a responsibility incumbent on that authority in the public interest, will itself in that regard be a public authority. But as it turns out, it seems that Mr Formby's contractor remains free in those circumstances to pursue his chosen vocation free from any constraints in the 1998 Act.

Nicholas Dobson is a partner with Pinsent Masons