R (on the application of Weaver) v London and Quadrant Housing Trust [2008] EWHC 1377 (Admin) [2008] All ER (D) 307 (Jun)
Queen’s Bench Division, Divisional Court
Richards LJ and Swift J
24 June 2008
The management and allocation of housing stock by a registered social landlord is a function of a public nature and the landlord is, therefore, a public authority for the purposes of the Human Rights Act 1998 (HRA 1998).
Richard Drabble QC and Matthew Hutchings (instructed by Brian McKenna & Co) for the claimant. Andrew Arden QC and Christopher Baker (instructed by Devonshires) for the defendant.
The claimant was an assured tenant of the defendant, which was a registered social landlord (RSL). The defendant was a housing association within the meaning of the Housing Associations Act 1985. It was constituted and governed by its rules, which provided for its business to be conducted by its board and shareholders.
None of the board members was a representative of a local authority or other public body and no such authority or body had any controlling influence over the board. Only a tenth of the housing stock owned or managed by the defendant had been transferred from the public sector, the remainder having been built by the defendant or acquired from private ownership. The claimant’s accommodation was acquired by the defendant on the open market. The tenancy was granted to her pursuant to nomination by the local authority. Considerable rent arrears accrued and the defendant sought an order for possession on ground 8 in Sch 2 to the Housing Act 1998.
The claimant applied for judicial review of that decision. The issues included whether or not the defendant was a public authority under HRA 1998. Section 6(3)(b) of HRA 1998 provided that a public authority included “any person certain of whose functions are functions of a public nature” save that, by s 6(5), in relation to a particular act, a person was not a public authority by virtue only of s 6(3)(b) if the nature of the act was private.
LORD JUSTICE RICHARDS:
His lordship considered, Poplar Housing and Regeneration Community Association Ltd v Donoghue [2001] EWCA Civ 595, [2001] 4 All ER 604 and YL v Birmingham City Council [2007] UKHL 27, [2007] 3 All ER 957.
The management and allocation of housing stock was not in itself an inherently governmental activity. A private sector landlord carrying on an ordinary commercial business in the letting of accommodation would not be a public authority. However in this case, although the defendant was constituted and governed by its own rules, owns and manages its own housing stock and entered into private law contracts with tenants, the nature of its activities and the context within which it operated made it a different situation from an ordinary commercial business.
The defendant was a non-profit-making charity acting for the benefit of the community in providing housing for the poor and other disadvantaged groups. That might not point in itself to its being a public authority, but it did mean the case lacked the private and commercial features had been held against treating Southern Cross as a public authority.
The defendant operated within a particular sector, that of social rented housing, which was not simply subject to detailed regulation but was permeated by state control and influence with a view to meeting the Government’s aims for affordable housing, and in which RSLs worked side by side with, and could be said to take the place of, local authorities.
In relation to RSLs, control and influence was exercised through the Housing Corporation.
Of particular importance was the nature and extent of public subsidy of the activities of the defendant, in common with other RSLs. His lordship left aside the payment of rent for individual tenants by way of housing benefit, which was of no real significance.
The point of significance was the receipt of capital grants from the Housing Corporation, especially social housing grants under s 18 of the Housing Act 1996 (HA 1996). They were directed towards increasing the housing stock available in the social rented housing sector and were one of the means by which the state secured the delivery of affordable housing to those eligible for it. His lordship bore in mind that private funding was also, and increasingly, important. He also bore in mind that RSLs were not unique in obtaining social housing grants.
The fact remained, however, that the defendant’s business as a whole was heavily subsidised by the state and that that funding was attributable to the role that the defendant, like other RSLs, played in the implementation of government policy.
Another relevant feature was the voluntary transfer of housing stock to RSLs from the public sector, which again reflected the fact that RSLs were performing functions of the same kind as local authorities in the provision of social rented housing.
The duty of co-operation with local authorities under HA 1996, s 170 was also of significance. It did not have a purely commercial relationship with the local authorities, but was operating under arrangements made within the framework of that statutory duty.
His lordship thought it better to leave the question of amenability to judicial review out of account when considering the issue of public authority, not least to avoid a danger of circularity of reasoning.
HRA 1998
His lordship concluded that the defendant was for relevant purposes a public authority within HRA 1998, s 6(3)(b).
In so far as a function of the defendant was a public function which made it a public authority for the purposes of HRA 1998, then it should equally be amenable to judicial review on conventional public law grounds in respect of its performance of that function.
It was open in principle to the claimant to bring a challenge by way of judicial review, on the ground of breach of legitimate expectation, to the defendant’s decision to terminate her tenancy, just as it was open to her in principle to bring a challenge on Convention grounds against the defendant as a public authority.
His lordship then considered the substantive grounds of challenge and dismissed the claim on the facts. Lord Justice Swift agreed.
