Ed Mitchell and Clive Lewis QC examine the precarious relationship between social care and HRA 1998
Towards the end of its passage through Parliament, the Health and Social Care Bill was amended so as to reverse the decision of the law lords in YL v Birmingham CC [2007] UKHL 27, [2007] 3 All ER 957. In YL it was held, by a majority of 3–2, that independent care homes that accommodate persons on behalf of local authorities are not, in so doing, caught by the Human Rights Act 1998 (HRA 1998).
The Bill has now been enacted as the Health and Social Care Act 2008. Section 145 contains the relevant provisions, the fulcrum of which is sub-s 1 which reads as follows: “A person (P) who provides accommodation, together with nursing or personal care, in a care home for an individual under arrangements made with P under the relevant statutory provisions (eg s 21 of the National Assistance Act 1948) is to be taken for the purposes of sub-s (3)(b) of section
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